Neubauer v. Overlea Realty Co.

Thomas, J., delivered the: opinion of the Court. The appellants, John Heubauer and Catherine Heubauer, bis wife, plaintiffs in tire court below, are the owners of a tract of land in Baltimore County, near the Baltimore City line, containing about twenty and one-half acres. Air. Heubauer was .a trucker, and he and his wife purchased the property in 1888 for the purpose of establishing a truck farm, and have lived there ever since.

The property is improved hy a large dwelling house, in which the appellants and their family live, a barn, granary, hay barrack and other farm buildings, and the land is cultivated by the appellants, and their four daughters and two sous. Air. Heubauer also owns two stalls in Lexington Alarket, Baltimore, and the vegetables, &c., raised on the farm are hauled to and sold at these stalls. The farm is nearly rectangular in shape, and is about. 2,300 feet long from north to south, about 450 feet wide at the south end, and about 335 feet wide at the north end.

There is a natural stream on the property which originates at a point some distance from the northwest of the farm. It enters the appellants’ land a short distance south of the northwest comer of the farm and flows through the farm in a southeasterly direction, and thence through adjoining lands to Herring Run, which empties into Back River. A small meadow or part of the land through which the stream runs is ⁸⁹ enclosed and used by the appellants as a pasture!- for their horses and cows. There- is another and smaller natural stream on the property, which starts from springs on the adjoining land of the- appellee hereinafter referred to, and enters the appellants' land at a point some distance south of the entrance of the other stream.

This stream flows through the1 appellants’ land for- several hundred feet and empties into the larger stream at a point south of the appellants.’ farm. In 1918, Henry Kolb, the president and general manager of The Overlca Realty Company, the appellee, conveyed to that company a tract of land, part of which is in Baltimore City and a part in Baltimore County, containing about forty acres, and lying between the Bel Air Road on the west and the appellants’ land on the east. The property, according to the plat offered in evidence and made a part of the record, is divided into streets or avenues, alleys, and building lots. The principal streets run from Bel Air Road in an easterly direction to an unimproved street called on the plat Woodland Avenue.

Woodland Avenue, as indicated on the plat, runs north and south, and adjoins the land of the appellants throughout the. entire length of their farm. The larger stream to which we. have- referred crosses Kenwood Avenue, the northern boundary of the appellee’s tract, and the northeast comer of the appellee’s property to Woodland Avenue, and then runs down Woodland Avenue for a short distance to- a point "between Kolb Avenue and Be-lmar Avenue (the first streets south of Kenwood Avenue'), where it enters iho appellants’ property. The settlement on the property of the appellee is known as "Belmar and. according to the plan of development adopted by die appellee, the appellee constructs the streets, builds the houses, installs the drainage and sewerage system, and then sells the houses. The appellee also established a water plant, but the water is now furnished by Baltimore City, and the appellee pays for it “by meter.’’ Each house is equipped bv the appellee with kitchen -sinks, bathtubs, water closets, and a cesspool or septic tank constructed under the front porch. ⁹⁰ the septic tank consists of an airtight and watertight concrete pit, about eight feet long, four feet wide and four feet deep,, with a partition iu the middle-, and the two apartments connected by a pipe through the partition, with a four-inch ell on one side and a four-inch T on the other side of the partition.

One end of the tank is connected with the water closet in the house, and the other end is filled with broken stone. From a point about 1,600 feet west of Woodland Avenue tbe land of the appellee slopes towards Woodland Avenue and the farm of the appellants, and, in constructing the drainage and sewerage system, the ap-pellee laid a terra cotta pipe, twelve inches in diameter, in the- bed of Kolb, Avenue, about two feet below tbe surface of the street, and a pipe fifteen inches in diameter in the bed of Be-lmar Avenue. As we understand the evidence-, the pipe o-n Kolb Avenue extends from the intersection of Mannington Avenue, which run's north and south and is about 600 feet west of Woodland Avenue-, to the larger stream referred to- where it flows on Woodland Avenue, and the pipe o-n Belmar Avenue extends from the intersection of Mannington Avenue to and across Woodland Avenue’ to the appellants’ land. At the intersection of Kolb .and Mannington Avenues, and -the intersection of Belmar and Mannington Avenues, tbe appellee constructed inlets to- tbe pipes laid in the beds of Kolb and Belmar Avenues, so tbat all the drainage in the gutters on Kolb and Belmar Avenues west of Mannington Avenue, for the distance of about 1,000 feet, flows into those pipes.

Tbe sewage from the kitchen sinks and batir tubs, and the overflow from the cesspools or tanks of the houses on Kolb and Belmar Avenues, are emptied, according to tbo elevation of tbe lot, either into the open gutters o-r tbe terra cotta p-ipes on those street's. All of the lots o-n Kolb- Avenue and Belm-ar Avenue have been imp-roved and the houses and lots sold by the appellee, and by the drainage and sewerage system so- constructed and maintained by the appellee the sewage from about forty of those houses, including the overflow from the- septic tanks, is emp ⁹¹ tied into the stream referred to as the larger stream, which Hows through the appellants’ farm. The sewage on Kolb Avenue enters the stream at Woodland Avenue, and that on Belrnar Avenue is carried across Woodland Avenue and emptied on the appellants’ land, and then flows over the appellants’ land for the distance of about eighty feet to- said stream. The appellee has about four hundred more lots in Belrnar on whicli it proposes to- build about two- hundred houses, and at the time of the trial in the court below bad under construction five houses on Cherry Avenue, the next street south of Belrnar Avenue.

The president of the appellee testified that in the further development of the company’s property the appelloe intended to adopt the same drainage and sewerage system, and to; empty the. drainage and sewage from the houses on Cherry Avenue and the. other streets, south of Cherry Avenue into the other or smaller stream mentioned, which enters the appellants’ land at the intersection of Eorest View Avenue and Woodland Avenue and, as we have said, flows through their property for several hundred feet and empties into the larger stream at a point south of their farm. The erection of the houses and construction of the/ drainage and sewerage system, referred to was. begun by the appellee several years before the trial of the case in the court below, and, before their completion, the appellants, fearing that the sewerage system proposed would injure their property, protested against the same to; the appellee;, and in December, 3 919, brought suit against the appellee in the Circuit Court for Baltimore County for the damage already done. In October, 1921, the bill of complaint in this case w:as filed in said court, setting out the facts to which we have referred, and alleging that, by reason of the emptying of the drainage and sewage mentioned into the larger stream referred to, the water in that stream had become polluted and discolored by vegetable and animal matter from the kitchen sinks, bath rooms and cesspools or tanks on Kolb and Belrnar Avenues; that the water is covered by “an obnoxious green scum”; that the banks of the stream are mai'ked by other deposits of an oh- ⁹² noxious nature; that the stream gives off a most foul and disagreeable odor at all times, and especially in periods of dry weather, and that the water of the stream is “no longer fit for consumption by the horses and cows” of the appellants. The bill further alleges that the appellee was engaged in the further development of its said property, in the erection of houses on Cherry Avenue, and in installing the same system of drainage and “sewerage disposal”; that said system “will centralize and flood” on the appellants’ land all of the drainage and sewage from Cherry Avenue and other avenues, and will result in cutting deep ditches on the appellants’ property, and that said acts of the appellee amount to a “practical taking of yonr orator’s property for the benefit of said defendant.” The prayer of the hill is for an injunction restraining the appellee from disposing of the “waste and drainage waters flowing from” the pipes on Kolb and Belmar Avenues so as to injure and destroy the property of the appellants, “or pollute the stream running through their property,” and also restraining it “from constructing any other sewerage or drainage system” in the further development of its property known as Belmar, soi as to pollute the stream flowing through, or “damage” or “injure” the property of the appellants, and for general relief.

The court below passed an order requiring the appellee to show cause why the injunction should not he issued as'prayed, and in its answer to the hill the appellee alleges that the larger stream mentioned has its origin about one-half of a mile north of the appellants’ property and flows in a southeasterly direction through a development called Overlea and then through the property of the appellee, for the distance of about one hundred feet, to the property of the appellants; that said stream flows through a natural valley and is “the natural means of drainage for a large portion of Overlea” and other developments, as well as the land of the appellee, and that “there are now and have been for more than twenty years houses upon said tracts of land the drainage from which flows directly into said stream”; that at the time of the filing of ⁹³ said answer there were “upon the land which drains into said stream.” north of the appellants’ property more than one hundred and twenty-five dwelling's, “all of the drainage from which rims directly into said stream before it enters the property of the appellee; that none of said dwellings is equipped with “'underground drainage pipes or cesspools” or has “any means of purifying” the “waste matter” before it enters the stream; that said stream, is therefore polluted before it enters the property of the appellee, and that the “waste matter” from the dwellings on the appellee’s property “could not possibly further pollute the water of the stream”; that while the appellee is constructing five houses on Cherry Avenue, it is also “engaged in constructing a pipe” across its property to Forest View Avenue so that it will discharge “into another stream running through Belrnar”; that because of the “low-situation of the land” of the 'appellants, the first mentioned stream, “is the natural drain” for the appellee’s property, and the appellee has. not polluted said stream” to any greater extent than it is, already polluted before entering” the property of the appellants”; that the, said pipe on Kolb' Avenue does now and the said proposed pipe in Woodland Avenue will discharge their contents directly into, streams on the, land known as Belrnar; and that the only possible damage, to said complainants is caused by the flowing of the contents of the pipe at the foot of Beliraar Avenue across the property of the complainants for a short distance, which this respondent is ready and willing to correct by laying an underground terra, cotta (pipe) from the mouth of said pipe at, Belrnar and Woodland Avenues to the said stream.” In addition to what we have already stated, the evidence shows that the larger stream mentioned, before it enters Bolina r, the, property of the appellee, flows through a, section in which there are a number of dwelling houses, and that, by reason of the contour of the land, the surface drainage of that section flows, into, that stream; that there is no general water supply in that section and no drainage system; that the residents thereof have outside privies, with concrete pitts or ⁹⁴ boxes, and that, generally speaking, these pitts or boxes are from time to time cleaned and tbe contents hauled away. It is clearly established by a number of witnesses that while the water in this stream, has never been used for human consunq> tion, it was, prior to' the construction by the .appellee of the drainage and sewerage system complained of, always clear and free from any offensive odor, and was used by residents of the neighborhood for other domestic purposes and for watering their' horses and cattle; that immediately north of the point- where the stream receives the flow from the appellee’s drainage and sewerage pipes, the stream is still clear and free from offensive odors; that since the construction of the sewerage system referred to the bed of the stream, below the point where such sewage flows into it, is covered by a dark deposit or sediment, the water is discolored and dirty, ha-s the odor of water closets or night soil, and cannot be used for any domestic purpose or for watering horses and cattle; that the water has a “scum on it,” and during a dry season the odor from the stream becomes very offensive to.