Washington Cleaners & Dyers, Inc. v. Albrecht

Oeeutt, J., delivered the opinion of the Court. The appellant in this case has, since September, 1923, owned and operated a cleaning and dyeing establishment at ³⁹¹ 1917 West Vine Street, in Baltimore City. Vine is a narrow ■street lying- between Lexington and Eayette Streets, and appellant’s plant is on the south side of the street between Honroe Street on the east and Payson Street on the west. A joining it is a public garage, and across the street from it are a number of private garages.

Between Vine and Fayette Streets there is a ten-foot alley separating the rear yards of the houses fronting on the south side of Vine Street from the rear yards of those fronting on the north side of Eayette Street. Except for the garages, several churches, a hospital, a convent, and an occasional store, the neighborhood is almost entirely residential, is solidly built up with blocks of two and three story brick houses, and is densely populated. Appellant’s business consists of cleaning and dyeing fabrics and textiles of all kinds, and, in the course of it, it uses large quantities of gasoline and varnalene, a cleaning fluid less volatile than gasoline, but more volatile than kerosene; and In the operation of its plant it operates a steam boiler, formerly heated by a coal burning- but now by an oil burning furnace. The fumes, smoke, and gases from that furnace, as well as certain, fumes from “drying” rooms, axe conducted to the open air through a sixty-five-foot smoke stack, in which there is fixed a screen having a mesh of one eighth of an inch.

Shortly after appellant began to operate its Vine Street plant, persons residing nearby complained of the effect of its ■operation upon their health and convenience, and those complaints increased until they eventually culminated in the bill of complaint which the appellees filed in this case on August 18th, 1927, in Oircuit Court No. 2 of Baltimore City, on their behalf as well as on behalf of all others in like situation with them. After alleging facts indicating the position which the several complainants respectively occupied in reference to the subject matter of the suit, and other facts not material to this inquiry, the bill states: “That in addition to the plant so maintained and operated by the defendant on West Vine Street constituting a fire hazard, the carrying on of the business therein conducted also generates and releases into the ³⁹² surrounding atmosphere constantly a heavy and objectionable odor of gasoline which passes into the atmosphere, circulates about the neighborhood and seriously disturbs and interferes with your orators and the other citizens of the neighborhood in the conduct of their ordinary affairs. That persons in the neighborhood including some of your orators are thereby at times forced to suffer severe headaches and have been unable to eat their meals or to leave their windows open even though the weather be warm. That your orators inform the court that the persons immediately adjacent to said plant of the defendant find ■said gasoline fumes so heavy, and so offensive that they virtually ‘taste’ the same in the meals set upon their tables.

Your orators therefore say that said gasoline fumes create a menace dangerous to health and destructive to property values. “That your orators aver that not only does the plant of the defendant constitute a fire hazard and the fumes of gasoline generated by the same menace health and property values, but your orators further say that the defendant, by the operation of the boiler found in said plant, creates and spreads into the surrounding air an immense volume of smoke and soot, all of which, being heavier than air, spreads about and covers the entire neighborhood adjacent to the said plant of the defendant. That in certain instances your orators- and other housewives about the same have found the soot so scattered so dense and objectionable as to ruin their wash spread to dry in their back yards and require a second washing of the same. That it settles upon and gradually ruins the paint placed upon their houses, and enters into their houses and settles upon their furniture. That these clouds of smoke are sufficient to render it impossible for the neighbors close to-said plant to sit in comfort upon their back porches-while the said plant is in operation and the wind blowing in their direction or to leave their windows-open. “That your orators aver that the fumes of gasoline and the clouds of smoke hereinbefore mentioned spread ³⁹³ over so much of the neighborhood that they have entered and been objectionable in tbe very operating room of tbe Bon Seeours Hospital located approximately a city block away. “That your orators aver therefore that the maintaining of said plant by the defendant at the aforesaid location and the operating of the same as it is now operated by the defendant create a condition 'naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits/ and create a nuisance. “That dwelling houses are found immediately to the rear of said plant separated from the same only by a ten-foot alley and by the length of their own yards, and dwelling houses are built immediately against the same on the west on Yine Street itself.

That all these houses were erected years before the plant of the defendant was built. “That the nuisance aforesaid is injurious and dangerous to health, is calculated to cause physical suffering and mental auguish and has reduced the value of property, to the great loss of your orators and the hundreds of other persons on whose behalf this bill is brought, and to the detriment of their health and happiness.” The appellant’s answer to that bill was in effect a direct traverse of all allegations of fact designed to show that it caused or maintained a nuisance. The case was set down for testimony and a hearing npon those pleadings, and, at the conclusion of the hearing, the court passed, on April 28th, 1928, a decree which in part provided: “Wherefore, it is further ordered, adjudged and decreed that the defendant: “1. So arrange and reconstruct its factory at the location mentioned in the bill of complaint that no fumes of cleansing fluid deleterious to the health of the neighbors be given off. “2. Install the finest mesh practical in the spark arrester in the stack at said plant. ³⁹⁴ “And it is further ordered, adjudged and decreed that the defendant be given three months from the date hereof to comply with the terms of this decree, and that if within said period it shall not have complied with this decree, an injunction be issued restraining the defendant from carrying on its business at said location in violation of the terms hereof.” Thereafter, on the eighth of the following November, the appellees filed a petition in which they charged that appellant had not complied with the decree of April 28th and praying the court to adjudicate “it in contempt.” That petition was also in due course set down and, after testimony had been taken and the parties heard, the court passed the following decree: “The court being of the opinion that the defendant has not complied with the decree of this court passed in these proceedings on the 25th day of April, 1928, and that it has continued to operate its business at the location mentioned in the testimony so that noxious gases that produce actual physical and mental discomforts to persons of ordinary sensibilities and habits living in the vicinity of the plant, including the individual plaintiffs, continue to be given off, it is therefore ordered, adjudged and decreed by the Circuit Court No. 2 of Baltimore City this 12th day of Decembei', 1928, that the defendant be and hereby is permanently restrained from using varnalene and/or gasoline for cleaning articles of clothing, rugs, lace curtains and household furnishings in the carrying on of its business at the location in Baltimore City, more particularly described in the testimony and generally known as 1917 West Yine Street, in such quantity and manner as to be deleterious to the health of the neighborhood as above stated.” From that decree this appeal was taken.

From this statement of the case, it is manifest that if the appeal presents any question at all, it is whether the operation of appellant’s plant results in the emission of fumes, ³⁹⁵ gases, or vapors which injuriously affect the health, comfort, and convenience of persons of normal sensibilities residing near it to such an extent as to deprive them of the reasonable enjoyment of the properties they respectively occupy. If it has any such effect, it is a nuisance which a court of equity will abate, and any such person so affected by it is entitled to that relief. Woodyear v. Schaefer, 57 Md. 9 ; Adams v. Michael, 38 Md. 128 ; Susquehanna Fertilizer Co. v. Malone, 73 Md. 276 ; Block v. Baltimore, 149 Md. 59 ; 46 C. J. 686, 687. Whether the obnoxious conditions do amount to an unreasonable interference with the rights of those affected by them to the reasonable enjoyment of their properties depends to some extent, but not entirely, upon the character of the locality in which they occur. 46 C. J. 666; North.

Cent. R. Co. v. Oldenburg, 122 Md. 236 ; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562 ; Chappell v. Funk, 57 Md. 465 . Eor persons residing in a manufacturing district must naturallly expect to' find there more noise, more smoke, dust, and atmospheric pollution, than in a residential district, and conditions which might not constitute a nuisance in the one case might well be a nuisance in the other. Ibid.

But there is a limit even to the rule of locality, for in Susquehanna Fertilizer Co. v. Malone, supra, it was held “that in the eye of the law, no place can be convenient for the carrying on of a business which is a nuisance, and which causes substantial injury to the property of another.” The scope of that expression is limited by the statement, in the same opinion, “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 neighbor ³⁹⁶ ing owner, for which an action will lie.” Nevertheless, it negatives the proposition that one can, even in an industrial or manufacturing community, so use his property as to destroy the value of the property of another, or injuriously affect the physical health or comfort of the occupants thereof without becoming liable to them for the injury. Ibid. Turning to- the facts of the case, the evidence clearly shows that, while the neighborhood of