Town of Gaithersburg v. Dosh

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Montgomery County in equity, dismissing a bill of complaint brought for the purpose of enforcing by injunction Town Ordinance No. 20 against the keeping of livestock. While neither the pleadings nor the docket entries are printed in the appellant’s appendix, it appears from the opinion of the Chancellor, which is printed, that a combined demurrer and answer was ²⁹³ filed to the bill, hearing on demurrer was waived and the case heard upon bill and answer, with an agreement “that the question for the court to pass upon is the validity of the ordinance.” The opinion also states that the answer admitted the keeping of cows in excess of the number permitted by the ordinance, on a lot smaller than two acres in extent. The bill, as summarized by the Chancellor, recites that the ordinance was duly passed on January 2, 1951, by the Mayor and City Council, providing that on and after July 1, 1951 it should be unlawful for any person, firm or corporation to keep or maintain cows, steers, bulls, or other bovine animals, or horses, or other livestock, within the corporate limits, “provided that this ordinance shall not prohibit the keeping of not more than two (2) of such animals in a well fenced area of not less than two (2) acres of land”, or “the display of livestock by entrants in fairs held at recognized fair grounds.” A fine is provided of from $5.00 to $20.00 for each day of violation.

The bill was filed by the Town on December 6, 1951 against Dosh, the owner of a lot within the city limits containing 16,000 square feet where he kept a cow stable and cows, after due notice to desist. There were allegations that the keeping of such animals was a source of rodents, flies and nauseous odors detrimental to the public health. These allegations were denied by the answer, which averred that the animals were kept in a stable erected in 1910 and kept in a good state of repair and sanitation. Since no testimony was taken, there was nothing to support a conclusion that the mere maintenance of the cow stable was a nuisance in fact.

Under the agreement of submission referred to by the Chancellor, it would seem that no question of the abatement of a nuisance is involved, the Town relying solely upon the validity of the ordinance. Nor does it appear that any question, as to whether relief in equity can be afforded in support of an ordinance carrying a criminal penality, was raised below, and we shall assume, without deciding, that the ²⁹⁴ bill was properly brought for the purposes of this case. The appellant concedes that the keeping of cows is not a nuisance per se. There is abundant authority that the maintenance of a stable is not a nuisance per se.

Met. Saving Bank v. Manion, 87 Md. 68, 81 , 39 A. 90 (livery stable); King v. Hamill, 97 Md. 103 , 54 A. 625 (private stable) ; Hagerstown v. B. & O. Ry. Co., 107 Md. 178 , 68 A. 490 (cattle yard); Maryland Council of Mount Airy v. Sappington, 195 Md. 259 , 73 A. 2d 449 (slaughterhouse and