Northern Central Railway Co. v. Oldenburg & Kelley, Inc.

Pattison, J., delivered the opinion of the Court. As alleged in its bill, the'appellee, plaintiff below, a body-corporate, was, on the 23rd day of March, 1910, the owner in fee simple and in possession of a large tract, of land at Highlandtown, in the Twelfth Election District of Baltimore County. On that day the appellee company conveyed a portion of said lot of land to one Samuel C. McFarland, who on the 2nd day of December, 1910, conveyed the same to the appellants, the Northern Central Railway Company and the Philadelphia, Baltimore and Washington Railroad Company, and these companies together with the Pennsylvania Railroad Company, the other appellant named, constructed thereon a large building known as a roundhouse, which is described in one of the plaintiff’s exhibits filed with its‘bill as the place where the locomotives, after they have made a trip, are brought for the purpose of cleaning the grates, tubes and front end of the boilers, and where, after the boiler has been cleaned, the engine is prepared for a new run by starting a new fire in the engine. It is alleged by the plaintiff that it “at large cost to itself, had improved, before and after the building of said roundhouse and its use as aforesaid, its land by handsome dwelling houses, many of which it leased or rented to sundry persons and retained the ownership of the other of said houses to itself,” and “that continually since the construction and use of said roundhouse by the defendants there has been discharged from the smoke stacks of said roundhouse, coming from the locomotive engines, some twenty in number, smoke and noxious fumes destructive of plaintiff’s grass, vegetable matter, and trees, as well as destructive of parts of said houses of the plaintiff, and cotton fabrics of tenants, ²³⁹ when exposed to said fumes, and in addition to the aforesaid injury to property, said noxious fumes affect the health of tenants of plaintiff, when exposed to said fumes, causing coughing and inflammation and irritation to the respiratory organs. * * * That the effect of said smoke and noxious fumes proceeding from said roundhouse of defendants is to destroy the value of said houses as dwellings, and to render them untenantable, of no value as dwelling houses. .That the said public nuisance caused by said smoke and noxious fumes as aforementioned is continuous when the wind blows from a certain quarter, and inflicts on the plaintiff and its tenants the special damages, as aforesaid.” That the condition of the atmosphere produced by the said smoke and noxious fumes discharged from the roundhouse of the defendants “render the property, the land improved and unimproved, of the plaintiff adjacent to said roundhouse, valueless, untenantable and without market value.” It is also alleged by the plaintiff that “in addition to the continuing nuisances” aforesaid, “the defendants caused, since the construction of said roundhouse, continually to flow upon the said land of the plaintiff, from its roundhouse, a stream of hot water, which has made a deep ditch or ravine in said land of the plaintiff and by undermining the support of the bridge of the said land of the plaintiff has washed away said bridge.” To correct the alleged wrongs complained of, the plaintiff filed its bill, alleging therein, in substance, the facts as we have stated them, and with it filed eight exhibits.

The first,. second, third and fourth are copies of deeds by which the plaintiff acquired title to the entire tract of land owned by it; the fifth is a copy of a deed from the plaintiff to McFarland conveying unto him that portion of the entire tract which is now owned by the defendants; the sixth is a copy of deed from McFarland to the defendants, conveying said land unto them; the seventh is a plat showing the location of the lands, both of the plaintiff and defendants, mentioned in these proceedings. The land owned by the plaintiff, both ²⁴⁰ before and since the acquisition by the defendants of the lot upon which the roundhouse is located, was, and is, very nearly surrounded by the lands owned by several different railroad companies operating their roads in that vicinity. The eighth exhibit is a report to the plaintiff by Penniman & Browne, chemists, of examination or tests made by them of the atmosphere, the first in their laboratory, 215 E. Payette street, Baltimore City, and the others, six in all, made at different times and places upon said lands of the plaintiff and the nearby lands of others. It was shown by the analysis so made by said chemists upon the property of the plaintiff and others near or adjacent to the roundhouse, that the atmosphere at such times and places was largely impregnated with sulphuric acid, varying in amount at different times and places as a result of the varying conditions of the wind and weather, and it was found by said tests that the quantity of sulphuric acid in the atmosphere at or near the roundhouse was much greater than in the atmosphere of the laboratory, and this difference of quantity is ascribed by the chemists as due to the conditions produced by the fumes and smoke, etc., from the round house.

As the chemists state in their report, in order to make the results of their tests or examinations “readily comparable” they adopted as the unit of measurement the amount of sulphur dioxide present in three hundred and seventy-four cubic feet, the amount of air used or consumed by one person for respiration in twenty-four hours. Their first experiment, made in their laboratory on October 22nd, 1913, showed the presence of .024 grain of sulphur dioxide per 314 cubic feet. The second experiment, made on the 28th and 29th of the same month, at a house of the plaintiff’s situated to the southwest of and approximately two hundred yards from the roundhouse, with the wind blowing from the roundhouse towards the apparatus for one hour and a quarter, showed the amount of sulphur dioxide present in the atmosphere at such point, for such time, to be seventy-five times the usual amount, and for the whole twenty-four hours, including the ²⁴¹ hour and a quarter we have mentioned, the result showed a presence of .117 grain of sulphur dioxide per 374 cubic feet. The third experiment was made at Mr. Funk’s house at the corner of Philadelphia road and Eleventh street, directly north of the power house of the Pennsylvania Railroad Company; the wind was blowing from the northeast and later blew from the east.

The result showed .049 grain of sulphur dioxide per 374 cubic feet, twice the usual amount. Experiment four was made at No. 138 Tenth street. The wind was blowing from the northeast but soon changed to the southeast. The result showed the presence of .043 grain of sulphur dioxide per 374 cubic feet, nearly twice the usual amount.

Experiment five was made from a movable shed erected of shutters, placed on the property of the plaintiff, southeast of and one hundred and twenty-five yards from the roundhouse. The wind was variable, but was not generally blowing from the roundhouse towards the shed. The result showed the presence of 1.882 grains of sulphur dioxide, an increase of seventy-five times over the usual conditions. The sixth experiment was lost on account of high winds overturning the apparatus.

The seventh experiment was made from a shed erected one hundred yards east of the roundhouse, the wind blowing fromNthe roundhouse over the shed for the greater length of time, but not invariably so. The test started at six P. M. and finished about four fifteen P. M. the next day. The amount of sulphur- dioxide was 21.098 grains per 374 cubic feet, showing an increase of 878 times over the usual conditions. Sulphur dioxide acted on by the oxygen .in the air forms sulphuric acid.

The report of the chemists states that the effects of diluted sulphuric acid upon iron, tin, copper and zinc is to corrode them, and that it weakens and finally destroys paint films, and that its action is particularly marked upon cotton and linen fabrics and not so marked upon wool. It also states that its effect upon persons inhaling air containing considerable quantities of it is irritating and that such irritating ²⁴² effect must undoubtedly in some cases result not only in •serious inconvenience, but positive danger to health. The report further adds that in the condition of affairs prevailing (in this case), where the sulphur dioxide is accompanied by a large number of fumes and gases, the effect of sulphur dioxide is multiplied many fold. “This includes, it must be remembered, dust, soot, carbon dioxide, carbon monoxide, and coal gas-” The report then states that “it is a matter of common knowledge that the air of cities must be and is contaminated to a greater or less extent, and that such contamination is of the same general kind as proceeds from the roundhouse of the Pennsylvania Kailroad Company, must also be recognized. That other contaminations, some of which may be of a more serious nature, sometimes occur, is also true.” The bill then prays, first, that a mandatory injunction be issued “requiring the defendants to abate the nuisance of said roundhouse and its running of said water over the lands of the plaintiff”; second, that a mandatory decree be passed “requiring the defendants to pay the plaintiff, in money, whatever this Court may find it has already suffered by the smoke and noxious fumes arising from said roundhouse and the damage from the water running over said lands of the plaintiff,” etc.; third, and for general relief.

The defendants demurred to the bill upon the grounds, (1st), it does not state such a case as entitles the plaintiff to an injunction as prayed; and (2nd), that it does not state such a case as entitles the plaintiff to any relief against the defendants. The Court overruled the demurrer, and it is from its order overruling the demurrer that this appeal is taken. It is urged against the bill, to use the language of the defendants, found in the brief, that “the plaintiff has not shown by its bill that it has suffered or sustained any real injury or such as would entitle it in a Court of law to substantial damages, with respect to the smoke and its constituents, complained of, and no irreparable damage with respect ²⁴³ to the alleged damage done by the stream of water flowing through the ditch on its land; and therefore, in neither case has the plaintiff shown itself entitled to an injunction from a Court of Equity.” We will first consider this objection in relation to the alleged injuries suffered by the plaintiff by reason of the water flowing upon and through its land, as alleged in the bill. It is clear to us that the plaintiff is not only entitled to recover for the damages sustained by it as a result of this wrong complained of, but that it is likewise entitled to an injunction restraining the defendants from further like injuries.

The injury here complained of is such a taking of the land of the plaintiff for public use as demands compensation under the constitutional provision that private property shall not be taken for public use without just compensation. This Court in the case of Guest v. Church Hill, 90 Md. 689 , in support of its views expressed by Judge Schmuckeb in that case, approvingly cited Pumpelly v. Green Bay Canal Company, 13 Wall. 166 , in which it was held that the overflowing of the lands of an individual with water by the public authorities for public benefit, under statutes authorizing it to be done, is such a taking of the land for public use as demands compensation under the constitutional provision, that private property shall not be taken for public use without just compensation. And Judge Coodey, in Ashley v. Port Huron, 35 Mich. 296 , says, that “the property right of a private individual in his land, is as much appropriated by pouring upon it a flood of water as by an actual taking of it for streets or buildings.” Hitchens v. Mayor and Councilmen of Frostburg, 99 Md. 617 ; Noonan v. City of Albany, 79 N. Y. 470 ; Mayor, etc., of Baltimore v. Merryman, 86 Md. 592 . It is true, the above are cases where the wrongs complained of were committed by municipal corporations, but certainly individuals or private corporations can have no greater right, and will not be permitted to commit such wrongs and escape liability in so doing.

The injury complained of is alleged to ²⁴⁴ be a continuing one, in the commission of which the defendants may be restrained by a Court of Equity. The right to recover damages for injuries resulting from smoke and noxious fumes, caused by the defendants, flowing over the lands of the plaintiff, similar to those alleged to have been srrffered by the plaintiff in this case, has been passed upon by this Court in a number of cases. In the case of Susquehanna Fertilizer Co. v. Malone, 73 Md. 275 , where the evidence disclosed that noxious gases escaped from’ the factory used by the defendant for the manufacture of sulphuric acid and commercial fertilizers, and which gases, when driven by the winds on the premises of the plaintiff and his tenants, were so offensive and noxious as to affect the health of plaintiff’s family, and at times to oblige them to leave the table and to abandon the house, and that such gases also injured materially his property, discolored and injured clothing hung out to dry, stained the glass in the windows, and even corroded the tin spouting on the houses, the Court held that the plaintiff was entitled to recover for the damages resulting from such injuries, and in discussing the case the Court said: “We fully agree that, in 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 case, the locality and all the surrounding circumstances should be taken into consideration; ancl 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, St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 642.” ²⁴⁵ And in the case of Euler v. Sullivan, 75 Md. 618 , where the Court held the prayer upon this question was too general and misleading, it, nevertheless,