Taylor v. Mayor of Baltimore

Boyd, 0. J., delivered the opinion of the Court. The appellant sued the appellee for damages alleged to have been sustained by her for injuries to her property situated in Baltimore County, caused by a sewage disposal plant, constructed by the defendant. It is alleged in the first count of the narr. that into said plant the defendant dis^ charges “all the accumulations from the kitchens, bathrooms, water-closets, mercantile establishments, stables, streets and other places in Baltimore City, which said matter is spread out in a diluted condition through the system of drains, pipes, etc., at said sewage disposal plant over a large area of low land near to the plaintiff’s said property, and from which .there arises a horrible, sickening' and disease-breeding stench, which at all hours of the day and night permeates the atmosphere around the plaintiff’s said property, and is carried into and through the dwellings - and other buildings thereon, rendering the same unfit for occupancy, and in consequence of which wrongful act of the defendant the property of the plaintiff has been greatly depreciated in value and practically destroyed for all useful purposes.” The second count alleges negligence in the construction and maintenance of the plant.

The suit was instituted in Baltimore County but the record was removed to Howard County where the case was tided. At the conclusion of the plaintiff’s testimony a prayer was granted by the lower Court, that the plaintiff had offered no evidence legally sufficient, under the pleadings, to entitle the plaintiff to recover, and the jury was instructed to render a verdict for the defendant, which was accordingly done, and ¹³⁵ from a judgment entered tbereon, this appeal, was taken. The only exception presented by the record is the one to the granting of that prayer. It is conceded that the power and authority to construct and maintain the plant was granted by the Legislature—• being Chapter 349 of the Acts of 1904—and that no evidence was offered to prove negligence on the part of the defendant as alleged in the second count, the plaintiff standing on the first count only.

The position taken by the appellee is thus stated in its brief: “That an individual or a private corporation is answerable in damages, as for a nuisance, in eases like this where special damages are shown, is, of course, a proposition so well established as to be beyond question. In regard to municipal corporations, however, which act under legislative authority in the prosecution of works designed for the public good, the doctrine is otherwise, and there can be no recovery for consequential injuries except in those oases where the power is exceeded, or the work is negligently performed.” The plaintiff’s property consists of three contiguous parcels of ground which are improved, and in its entirety was described by her in her testimony as “bounded on the east by Back River, which at this point is about a quarter of a mile wide, on the north by Eastern avenue, upon which it fronts, and on the west and south by the old Willis Farm, which was purchased by the Mayor and City Council of Baltimore, it being a 450 acre tract of land, and upon which the defendant has erected a Sewerage Disposal Plant about 1500 feet distant from and to the south and southwest of plaintiff’s property.” The witnesses vary as to the distance —one saying the plant is about 1000 feet, another about a quarter of a mile from plaintiff’s property, etc. The plaintiff had occupied the property since 1908, but in 1911 she purchased the leasehold interests in the three parcels, they being subject to irredeemable ground-rents amounting in all to $650.00 per annum. The one next to the river is a hotel ¹³⁶ property known, as" “Mitchell’s Back River Park,” the improvements consisting of a hotel, a'dancing pavillion and a dining pavillion; adjoining that on the west is a dwelling house, and next to that is a building used for a store and dwelling. The plant is about five miles from the city limits. ' It was completed in 1913, and, according to the evidence, the conditions at plaintiff’s "property have undoubtedly been wholly different from "what they were" before the plant was operated.

Since then the condition’s are described as “something terrible át times,” “nauseating,” “simply unbearable,” “smells like everything nasty,” “pungent, strong and nauseating odors,” etc. They are not bad all of the time, but when there is a southwest wind or the atmosphere is heavy they aré particularly so>. Patrons of the place became nauseated, would have to leave the table, and the plaintiff testified that “Not more than one-quarter of the people come down there now.” ’ Gnats come to her property from the plant in such swarms that they can not be kept out of the house—get in the food and are simply intolerable, according to the witnesses. The appellee contends that there could be ño recovery on account of the’ gnats, as damages are not claimed for them in the na/rr., but without discussing that, it would have been easy to amend the declaration if that point had been raised, and the case had not been taken from the jury. It must be conceded that there was evidence tending to show conditions which were almost unbearable at times, requiring the windows to be’ closed, and even then the odors were such’ as to interfere with the sleep of some of the witnesses.

The worst conditions are in the summer, when the j>revailing winds are from the southwest, and that is the season of the year when the plaintiff had most patronage. The only expert called, Mr. Hurst, testified to values before and after the plant went into operation, and his testimony tended to show a depreciation of the property amounting to $10,000.00. ¹³⁷ Having stated the facts tiras fully, the important question still is, whether the appellee is liable to respond in damages for the loss the appellant has sustained'by reason of the operation of this plant by it. There was no sewerage system in Baltimore until a plan was adopted a few years ago, which has involved án expenditure of $23,000,000. There can be no doubt that the municipality had ample power and authority to construct such a system.

What amounts to a “taking,” within the meaning of Section 40 of Article 3 of our Constitution, which'prohibits the General Assembly from enacting a law “authorizing private property to be taken for public use, without just compensation,” has often been before us and our predecessors. As due contention of the appellant is that her property has in effect been so taken, a reference to some of those decisions, as well as to some in which there was no actual taking, but damages for injuries sustained were involved, may be helpful. In B. & P. R. R. Co. v. Reaney, 42 Md. 117 , the suit was against the railroad company and not against the city. The Court said that: “As against the municipal government, in the careful exercise of its right and power to grade, change and improve the street, there could be no cause of action for any unavoidable injury done, but as against the appellant, a private corporation in no wise connected with the municipal government, obtaining authority to use the streets in an extraordinary manner, for its own private purposes and profit, the case is quite different.” In O’Brien v. Baltimore Belt.

R. R. Co., 74 Md. 363 , an injunction was applied for against the railroad company which, under authority from the Legislature and the city, made an open cut on the west half of Howard street to a depth of from ten to twenty feet. After the cut was made there was still about one-half of the street undisturbed in front of the plaintiff’s property, which was on the east side of the street, and the plaintiff was only an abutting owner, having' no free-bold or lease-hold estate in the bod of the street. The right and power of the Legislature, through the ¹³⁸ agency of the municipal government, to change and alter the grade of existing streets from time to time, and as often as deemed proper, without incurring liability by the municipality to the abutting owner of property for the mere consequential damages that may be suffered by reason of the changed conditions, was clearly announced. The opinion pointed out the distinction between such a case and one where a steam railroad company, having no connection with the municipal government, changed the grade and occupied the street, but the Court held that, as there was no talcing of private property, and it was not charged that there will be “any invasion of or physical interference with any part of the plaintiff’s lot, in the construction of the road,” there was no ground for an injunction.

The Court said, however, that the plaintiff had a remedy at law, as the ordinance passed in pursuance of the statute expressly provided that the company should pay and be liable for the actual damages sustained by abutting prop1erties, “even if he were without remedy by the common law.” Cumberland v. Willison, 50 Md. 138 , was an action at law. It was shown that by reason of the paving, grading, repairing, draining, sewering and extending of streets-, in the execution of powers conferred on the city by the Legislature, the authorities of Cumberland changed, or so directed the natural flow of surface water, which usually found its way into a natural water course, used by the plaintiff as part of his mill race, that a larger flow of such water than formerly was emptied into the race, and in times of heavy rains a larger quantity of mud, soil and debris was carried into the race near the mill of plaintiff than before the improvements were made. It was held, quoting for convenience from the-syllabus, that, “as the defendant acted within the scope of the authority conferred on it by the laws of the State, and with no want of reasonable care and skill in the execution of the power, the-action could not be maintained.” ¹³⁹ In Garrett v. Lake Roland El. Ry.

Co., 79 Md. 277 , a stone abutment and an elevated structure wore erected in front of lots owned by the appellant which reduced the width of the street at that point to less than ten feet, beyond the structure. An injunction was applied for on the theory that it was a “taking” of the plaintiff’s land, but it was refused and an appeal taken to this Court where the decree was affirmed. Judge Me Sherry, after stating the contention of the appellant, said: “Though there has been no physical invasion of the appellant’s property, still if the act complained of constitutes, by reason of its consequences, a taking of the appellant’s property for a public use, within the meaning of Section 40 of Article 3 of the Constitution * * * then the injunction should have been granted. But if, on the contrary, this was not such a taking as the Constitution has reference to, and injury has been done the appellant, then his remedy is in another and different forum,” and he then referred to a section of the ordinance involved in the ease, which made provision for the prompt and effective enforcement of such judgment as a Court of law might pronounce.

Ho said that while there is some conflict in the adjudged cases as to what amounts to a taking, the overwhelming weight of authority accords with ,the conclusions reached in Willison’s case, and O’Brien’s case, sufra, and held there was no “taking” in that case. In Hitchins v. Frostburg, 68 Md. 100 , it was held that where a municipal corporation had changed the natural flow of surface water by the elevation of the grade of a street, and the water was then concentrated in a gutter and made to flow to the mouth of a sewer, it was the duty of the corporation to provide adequate means for carrying off the water so as to avoid damages to the adjoining property, and if the surface water be allowed to accumulate in large quantities at the mouth of the sewer, and thus flow back upon private property, that constitutes a nuisance, which it is the duty ¹⁴⁰ ©f the corporation to remove, and for the neglect of that duty, it is liable to the private 'owner. ' .... In Baltimore v. Merryman, 86 Md. 584 , the city had built a’dam across a stream which ran through the' plaintiff’s farm,—raising'the water a foot or more'higher than it was before the dam was erected and obstructing the flow of water along her farm, forcing it back upon it and thereby causing large deposits of sand, mud,: dirt añd debris 'to collect and gather in the bed'of the stream. We said: “It is true that the defendant was acting under powers granted by the Legislature when the dam and lake were made, but if in building them it feaused the water to flow back and remain on the plaintiff’s property or any part thereof, we can understand no reason why it could not be made to respond in damages for the injuries sustained thereby.” We held that the.occupation -of a- foot of the bank along plaintiff’s property by the water was a- “talcing.” • -Then after referring to the allegation that the defendant caused the water to be backed up. and overflow her farm we-said: “Is it to be said that a municipal corporation can thus interfere with the rights of others and injure their property without being liable in damages,-merely because it, in constructing its work, is acting under legislative authority?

The Legislature has no.power to grant such rights to any corporation, public or private.” In Guest v. Church Hill, 90 Md. 689 , after again saying that a municipal corporation, acting under, legislative authority, 'could change the grades.of streets without being liable for incidental, or consequential injuries to abutting land owners, if the work be done so as to avoid unnecessary injury to' adjacent property, and there be no invasion, of such propertyy we held that if it by a change in the grade of streets and the construction of drains, divert the surface water from its natural flow, concentrate it in volume and throw it upon the land of an abutting owner, such action.was an invasion of the adjoining, property and the municipality was liable for the injury caused. Judge Schmucker, who deliv ¹⁴¹ ered the opinion, quoted at some length from the Hitchinsr case, supra, where it was there said that collecting the water in front of the plaintiff’s property “constituted a nuisance, and, as such, it was certainly the duty of the defendant to remove it.” In Cahill v. Baltimore, 93 Md. 233 , we held that when a municipality changed the surface drain adjacent to the plaintiff’s land and caused it i» empty into a stream along side of plaintiff’s marine railway, depositing there mud and refuse matter, etc., the city was liable, although there was no negligence in the construction or location of the drain. In De Lauder v. Baltimore County, 94 Md. 1 , the County Commissioners constructed a culvert across a public road, and in doing so filled in the road to make the grade of the approaches thereto easy. The embankment thus raised wras from three or four feet above the adjoining ground over which Mrs. De Lauder had a right of way.

Along the embankment, but within the limits of the public road, the county authorities erected guard-rails and one of them covered the entire entrance to the right of way which could not be used oven if graded up to the line of the culvert, without removing the guard-rail. It made it impossible for her to get in or out of the right of way with a team. It was held to bo a “taking” of property within the constitutional inhibition. Judge Pearce said: “The injury inflicted upon Mrs. De Lauder is not rendering of the use of her right of way inconvenient or expensive!, but it is the destruction of its use, and its destruction is a taking in as just a sense as the appropriation of the gravel bank for the repair of a public road would be a taking.” In the recent case of Walters v. B. & O. R. R. Co., and The Mayor, etc., of Baltimore, in 120 Md. 644 , the railroad company and the city entered into an agreement, which received the sanction of the Legislature, by which the railroad company was authorized to build certain bridges over its tracks.

One of them was at Hamburg street and the plaintiffs owned a lot on that street. In constructing