North American Cement Corp. v. Price

²³⁶ Pattisost, J"., delivered the opinion of the Court-. This is an appeal from a judgment- recovered in the Circuit Court for Frederick County, by Millard J. Price and Lizzie E. Price, the appellees, against the appellant-, the North American Cement Corporation. The appellees are the owners of thirty-three and one-third acres of land in Washington County. Adjoining the land of the appellees on the northeast is the land of the appellant, and on this land the appellant maintains and operates a large manufacturing cement plant.

The declaration contains two counts. In the first it is alleged that in the operation of the defendant’s plant large quantities of “disagreeable soot, smoke, dust and other matter” are discharged therefrom upon the plaintiffs’ property used for agricultural purposes, thereby rendering “unmarketable and worthless” the produce grown thereon, and as a result thereof the plaintiffs are thereby deprived of the “profits and advantages that would reasonably enure to them from said property, and the value of said property is seriously impaired to t-heir great loss and damage.” In the second count it is alleged that in addition to the discharge upon the plaintiffs’ land of large quantities of disagreeable soot, smoke, etc., as alleged in t-he first count, “much blasting is done in the quarries on defendant’s said property,” and as a result thereof “there is caused to come upon the plaintiffs’ said land a large amount of noise and vibration” which, together with the soot, smoke, and dust, etc., “has thereby taken away from the said plaintiffs .the reasonable and comfortable enjoyment of said property as a place of abode to- the great damage of the plaintiffs.” In the trial of the case twelve exceptions were taken to the rulings of the court, eleven upon the admission or exclusion of evidence, and one upon the prayers. The plaintiffs offered two prayers, both of which were granted. The defendant offered six prayers.

Of these the first, third, fourth, and sixth were granted, while the second and fifth were rejected. The objections urged by the appellant to the court’s rul ²³⁷ ings upon the prayers are confined to its rulings in rejecting its second and fifth prayers. In the second prayer the court was asked to instruct the jury “that in determining the question as to whether or not the operation of the defendant’s plant has materially interfered with the plaintiffs in the reasonable enjoyment of their property they may consider the locality of the two properties, the nature of the business being conducted by the defendant, the useful character of said business and the large investment made' therein, that they are not to regard trifling inconveniences to the plaintiffs, and that the plaintiffs cannot insist on extreme rights or recover for every trifling annoyance. The matter must be regarded from a reasonable point of view and the plaintiffs, to justify a recovery, must show actual, substantial and material injuries, otherwise the verdict must be for the defendant.” By the fifth prayer, which contains practically the same proposition of law, the court was asked to- instruct the jury that “in determining whether or not the defendant has interfered with the plaintiffs in the reasonable enjoyment of their property, they should consider the locality and all the surrounding circumstances, and if they find that the defendant has erected expensive works which are useful and needful to the public the plaintiffs cannot insist on extreme rights or recover for trifling annoyances, but must show actual,, substantial and material injuries.” As stated in Susquehanna, Fertilizer Co. v. Malone, 73 Md. 276 , 20 A. 900 : “No principle is better settled than that where a trade o-r business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie; and this, too-, without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business.

Attorney-Gen. v. ²³⁸ Lunatic Asylum, L. R. 4 Ch. 147; Pinckney v. Ewens, 4 Law T. (N. S.) 741; Water Works Co. v. Potter, 7 Hurl. & N. 160; Rylands v. Fletcher, L. R. 3 H. L. 330.” It was also said in Susquehanna Fertilizer Co. v. Malone, supra: “We fully agree that, iu actions of this kind, the law does not regard trifling inconveniences; that everything must be looked at from a reasonable point of view; that in determining the question of nuisance in such cases; the locality and all the surrounding circumstances should be taken into consideration; and that where expensive works have been erected and carried on, which are useful and needful to the public, persons must not stand on extreme rights, and bring actions in respect of every trifling annoyance, otherwise, business could not be carried on in such places. But still, if the result of the trade or business thus carried on is such as to interfere with the physical comfort, by another, of his property, or such as to occasion substantial injury to the property itself, there is wrong to the neighboring owner for which an action will lie. Smelting Co. v. Tipping, 11 H. L. Cas. 642.” This language is very similar to that embodied in the defendant’s prayers in this case, which we have hereinbefore set out in full.

In the later case of Susquehanna Fertilizer Co. v. Spangler, 86 Md. 570 , 39 A. 270, 272 , where the defendant in the Malone case was again sued to recover for injury and damage to the property of the plaintiffs, and the discomfort and .annoyance to them caused 'by the obnoxious and unwholesome vapors and smoke, etc., from the defendant factory, the court, quoting from Lord Romilly in Crump v. Lambert, L. R. 3 Equity Cases, 409, said: “The law on this subject is, I apprehend, the same whether it be enforced by action at law or bill in equity. * * * There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapors, or water, or any gas or fluid. The owner of one tenement cannot cause or permit to pass over or flow into his neighbor’s tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighboring tenement, or so ²³⁹ as to injure his property.’ * * * cThe real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence.’ ” In the case just quoted from, a prayer very similar to defendant’s prayer in this case was offered and rejected by the court. That prayer was as follows: “The jury are instructed that, before the plaintiffs can recover under the pleadings in this case, they must believe that the fumes and g’as from the factory of the defendant have occasioned substantial injury to the house owned by the plaintiffs jointly, and in determining this question the jury are inshmcted that they should take into consideration the locality and all the surrounding circumstances; and that, when expensive works have been constructed, which are needful and useful to the public, if they so find, that persons must not stand on extreme rights, and bring actions, with respect to every trifling annoyance, but must submit to- the reasonable consequences of the- carrying on of trades in this immediate neighborhood, which are actually necessary to trade and commerce; and in considering the question of damage to the property of the plaintiffs the jury are instructed that the plaintiffs cannot recover for any injury they might have prevented by ordinary effort, and care.” In connection with its ruling upon the above prayer, the-court said: “We have considered at a length which is perhaps unnecessary the reasons and authorities, on which the opinion of this court is founded on questions of the character presented in this case. We have done so-, because- we perceived from the argument that the principle was very important to the appellant in this case.

We have not meant, however, to imply any dissatisfaction with the decision in Malone’s case, 73 Md. 268 , 20 A. 900 , in which this same fertilizer company was appellant. That decision was approved in Euler