Wietzke v. Chesapeake Conference Ass'n.

BATTAGLIA, J. Douglas and Vanessa Wietzke, Petitioners, filed a four-count complaint against the Chesapeake Conference Association of Seventh-Day Adventists, and various others, 1 Respondents, in the Circuit Court for Montgomery County alleging nuisance, trespass, and negligence in connection with the construction of a new parking lot by the Church, which, the Wietzkes claimed, was ultimately the cause of the “repeated and continu[ed] flooding” of their home in Silver Spring, Maryland. The Wietzkes requested some three million dollars in damages against the Church, as well as injunctive relief requiring the Church to “take any and all necessary steps;to prevent further flooding of the [Wietzkes’] home as a result of the changed topography, excavation, construction and/or drainage conditions on the Church property.” At the ensuing jury trial, after the close of the Wietzkes’ case, the Montgomery County Circuit Court granted the Church’s motion for judgment as to the Wietzkes’ negligence claim. After the close of the Church’s case, but before the jury was instructed, the trial judge, over the Wietzkes’ objec ³⁵⁹ tions, denied several of the Wietzkes’ requested jury instructions: one requested, but denied, jury instruction would have directed the jury that interference with the comfortable enjoyment of the affected property was the only consideration; another rejected instruction would have admonished the jury that Montgomery County’s approval of the Church’s construction project was not a defense to the Wietzkes’ claim for private nuisance; yet another rejected instruction would have advised the jury that the existence of other contributing sources to a nuisance was not a defense to an offending landowner’s own contribution to the same nuisance. Thereafter, the jury found in favor of the Church on nuisance and trespass, and judgment was entered.

The Court of Special Appeals affirmed in an unreported opinion, and we granted certiorari, Wietzke v. The Chesapeake Conference Ass’n, 417 Md. 501 , 10 A.3d 1180 (2011), to answer the following questions: 1. Do Maryland Pattern Jury Instructions 20:1 and 20:2, which fail to include any reference to strict liability, but instead require a finding of “unreasonable conduct”, conflict with the Maryland law of strict liability nuisance established by the Maryland Court of Appeals? 2. Were the Wietzkes improperly denied a jury instruction which reflected the strict liability law of nuisance in Maryland when the instructions given by the Court completely failed to address strict liability? 3. Were the Wietzkes improperly denied a jury instruction reflecting Maryland law that County approval does not absolve a Defendant of nuisance liability? 4.

Were the Wietzkes improperly denied a jury instruction reflecting Maryland law that a Defendant is not absolved of nuisance liability merely because other sources may have contributed to the nuisance? 5. Did the trial court err in dismissing the negligence count when the evidence established that the Defendants violated, and were given notices of violations, of Montgom ³⁶⁰ ery County Code ordinances as a result of the flooding of the Wietzke property? We shall hold that the doctrine of private nuisance dictates that the fact finder should consider the reasonableness of the offending landowner’s use of its property, and that the jury instructions in issue were, then, a correct exposition of the law. We shall further hold that, because the Church did not raise County approval of its construction project as a defense to the Wietzkes’ nuisance claim, the Wietzkes’ requested jury instruction was not generated by the evidence adduced at trial.

Similarly, we shall hold that, because the Church did not introduce evidence that other sources “contributed” to the conditions on the Wietzkes’ property as a defense to the Wietzkes’ nuisance claim, the Wietzkes’ requested jury instruction regarding other sources was inapplicable. Finally, we shall hold that the trial judge erred in granting the Church’s motion for judgment on the Wietzkes’ negligence claim. Testimony adduced at trial reflected the following: The Church and the Wietzkes owned two adjacent properties in Silver Spring, Maryland. The Wietzkes’ property sits at the corner of Mill Grove Place and Magnolia Street, while the Church’s property is situated at the corner of Timber Ridge Road and Magnolia Street.

A topographical map establishes that the properties are situated together such that the Wietzkes’ property sits at the bottom of a hill and the Church’s property sits atop a hill. In 2000, the Church made the decision to construct a new parking lot on its property, though construction did not begin immediately. On March 4, 2004, the Church sent correspondence to all neighboring, downstream property owners, including the Wietzkes, informing them it intended to develop its property and employ a “stormwater management” concept to deal with any increased runoff the construction may cause. The letter invited neighboring landowners to provide comments and concerns to the Montgomery County Government.

Though some neighbors responded, the Wietzkes did not. ³⁶¹ The Church, in conjunction with the construction of the parking lot, developed a stormwater runoff and sediment control strategy, which was intended to control the flow of surface water from the Church property. On October 26, 2006, the Church held a pre-construction meeting, which was attended by a team of engineers, contractors, excavators and sediment control experts, and the stormwater and sediment control concept was discussed at length. Moreover, a large portion of the pre-construction meeting focused on the placement of certain limitations on how much earth could be disturbed during the construction of the parking lot. Thereafter, between October 26, 2006 and mid-to-late summer of 2007, a large stormwater pond was constructed on the Church’s property.

The stormwater pond, which held thousands of gallons of water, was designed to collect excess water runoff from the Church’s property to release it in a slow, controlled manner. Moreover, the stormwater pond was designed to filter solid matter out of the water by guiding it through a “silt fence” made of woven fabric. Also, to maintain the purity of the stormwater on the Church’s construction site, earth dikes, or trenches fashioned out of dirt, were dug to direct stormwater around the construction site. On two occasions, once on November 28, 2006, and once on June 14, 2007, the Church was visited by a County Inspector and issued a “Notice of Violation” for being in non-compliance with certain County ordinances relating to stormwater and sediment control.

The November 28, 2006 Notice, issued pursuant to Section 19-7 of the Montgomery County Code, 2 ³⁶² was issued because the Church had not yet built an earth dike and other sediment controls. The November 28, 2006 Notice itself provided: The site is out of compliance due to the sequence of construction not being followed. Install the earth dike and other sediment controls listed and call for an inspection. The November 28, 2006 Notice was accompanied by an “Inspection Summary,” which instructed the church to cease construction until it built an earth dike: Inspection this date reveals the following: 1) The site is out of sequence for construction.

A notice of violation is being issued. 2) Install the earth dikes per sequence of construction. 3) Bring the site into compliance and call for inspections per the sequence of construction and preconstruction memo. 4) If any changes are wanted, first contact the inspector and your engineer. The second Notice, dated June 14, 2007, issued pursuant to Section 19-16(a) of the Montgomery County Code, 3 was issued ³⁶³ after an usually heavy rainfall, when stormwater had escaped from the earth dikes into the Church’s construction site, permitting soil to be washed away. The June 14, 2007 Notice contained a brief narrative, which provided: Sediment left the site after a storm event. There was flooding in the neighborhood.

Contact your engineer for a Solution. The June 14, 2007 Notice was also accompanied by an Inspection Summary, which stated “there was flooding of the house,” without identifying any specific property: Inspection this date reveals the following: 1) A rainfall event last evening caused sediment to leave the site. The clean water diversion worked but there were wash outs on the private roadway below the site. 2) The water built up on the super silt fence and because of the head pressure of the water caused the water to be forced under the fence. 3) There was sediment water and deposition on the property below. There was flooding of the house. 4) The site is not in sequence with the plans.

The parking lot area was cleared earlier and some of the area was to receive excess dirt from the pond. The dirt is now being hauled off. Complete the remaining removal of dirt (the dewatering device and riser are installed!)]. Stabilize and install the safety fence.

Call for inspection of the sediment basin. 5) A notice of violation and a civil citation are being issued. During the Wietzkes’ case, the Wietzkes themselves testified that they had experienced three major flooding events in their basement, which they used as a family room, one in June of 2006, one in November 2006, and one in June of 2007. The Wietzkes also testified that they had experienced somewhere between forty to fifty more minor flooding events in their ³⁶⁴ basement during the same time period. Due to the flooding, the Wietzkes testified that they had ceased using their basement entirely.

The Wietzkes produced no expert testimony. Rather, apparently in an attempt to link the Church’s construction of the parking lot with the flooding in their basement, the Wietzkes themselves, as well as two neighbors, gave testimony that, based on their perception, water appeared to flow towards the Wietzkes’ property from the portion of the Church’s property which abutted Magnolia Drive. James Jamison, one of the Wietzkes’ neighbors, shot video footage of the June 2007 flooding of the Wietzkes’ house, which they charged came from the Church. The Wietzkes also called Devona Malcolm, a contractor the Church had hired to oversee the building of the new parking lot.

Ms. Malcolm admitted that the Church’s construction project increased runoff from the Church property, but that the Church had installed a stormwater pond to control it. She also testified that the Church had considered whether it would be beneficial to utilize sandbags during a heavy rainfall, but before action could be taken, the rain had stopped. Moreover, Ms. Malcolm testified that the Church had inquired into whether they could install a permanent concrete curb on their property, but that the County never issued the proper permit. At the close of the Wietzkes’ case, the Church moved for judgment on both the Wietzkes’ negligence and trespass claims.

The trial judge granted the Church’s motion as to the negligence count, explaining as follows: [W]ith regard to the negligence count, there is evidence that there were citations read in (unintelligible) alleged violations in connection with the sediment and control plan and so forth during the construction. But in order for negligence, or in order for a violation of the statute to be evidence of negligence you would have to show that the statute was designed to prevent the type of harm that, you know, ultimately occurred, and, and here we don’t have that, and there’s no proof, at this point, that the specific alleged ³⁶⁵ violation was the cause of water flooding the basement. So, without that evidence, we’re back to the standard (unintelligible) of negligence and the duty of the breach and the injury and the cause, and there’s not been testimony with regard to a duty.[ 4 ] And it seems to me that the negligence you’re talking about would have to do with the construction and whether appropriate methods were or were not employed and that that would be the subject of expert testimony to establish a duty and a breach of a duty, and I don’t think that that’s been done. The trial judge denied the Church’s motion for judgment as to the trespass count, reasoning that, contrary to the Church’s argument, the evidence showed that the Church exercised dominion and control over their property: I’ll deny the motion with regard to the other counts, because I think it’s different from a supplier of gasoline to a facility here.

There was active involvement on the property, on the premises, of the defendants, that they did exercise certain control over the property, and I think, at least at this point looking at it in the light most favorable to the plaintiff, there is evidence from which the jury could find for the plaintiff with regard to those other counts. The Church presented a case rife with expert testimony. Thomas Wheadon, a sediment control and stormwater management specialist, testified that the Church had employed an effective concept for managing stormwater runoff. Thomas Woodhouse, the County Inspector issuing the November 28, 2006 and June 14, 2007 Notices to the Church, and stormwater expert, testified that, in his opinion, the November 28, 2006 sequencing violation would not have increased surface water flow from the Church property onto the Wietzke property, and that when he issued the Notice, the Wietzkes’ property was not “a thought in [his] mind.” Further, Mr. ³⁶⁶ Woodhouse testified that when he issued the June 14, 2007 Notice to the Church, he did not determine whether water or sediment from the Church’s property had reached the Wietzkes’ home.

Mr. Woodhouse also reviewed the videotape made by Mr. Jamison and concluded that the water flowing onto the Wietzkes’ property originated from more than one direction. The Church also called David O’Bryan, an expert in the areas of civil-engineering, land-use planning, and stormwater management. Mr. O’Bryan testified that, after visiting and observing the Church’s property, the construction of the new parking lot did not cause water to flow “where it wasn’t previously flowing.” Mr. O’Bryan also testified that, based on his review of Mr. Jamison’s videotape and a topography map, the surface water flowing onto the Wietzkes’ property most likely originated from multiple properties, but that it was impossible to determine which properties in particular without a detailed runoff study. Moreover, Alan Beal, a real estate construction specialist, testified that he recommended the Wietzkes regrade their property and improve the drainage system to control surface waters.

At the close of trial, the parties met with the trial judge regarding their requested jury instructions. The Wietzkes requested several jury instructions relating to their nuisance claim, one of which would have advised the jury that the Church was liable if the Wietzkes’ comfortable enjoyment of their property had been interfered with, without more: Nuisance is a strict liability cause of action. This means that it does not matter whether or not the nuisance was the result of illegal or negligent conduct. Even if a business is lawful and conducted in the most approved method, it is still a nuisance if it interferes with the comfortable enjoyment by another of his property.

Another of the Wietzkes’ requested jury instructions would have advised the jury that County approval of the Church’s construction project was not a defense to nuisance liability: ³⁶⁷ In this case, there has been evidence that the County approved some of the Church’s activities. The County approval, however, is not a defense to an action for nuisance. If the Church’s activities constituted a nuisance to the Wietzke’s, then the Church is liable for that nuisance regardless of any county approval. Yet another of the Wietzkes’ requested jury instructions would have advised the jury that evidence the flood waters at issue came from sources other than the Church was not a defense to nuisance liability: If water from the Church property contributed to flooding of the Wietzke property, it is not a defense that water from other sources may have also contributed.

If you find that the water from the Church property contributed to flooding of the Wietzke property then the Church is liable for any resulting nuisance to the Wietzkes. The trial judge and counsel met over a two-day period to discuss the proposed instructions, 5 and eventually, the judge denied the Wietzkes’ requested jury instructions, opting to instruct the jury in accordance with Sections 20:1, 20:2, and 20:4 of the Maryland Civil Pattern Jury Instructions (4th ed., 2008 Supp.), with specific portions omitted, as noted: 6 ³⁶⁸ A nuisance is any unreasonable conduct which causes real, substantial, and unreasonable damage to, or interference with, another person’s ordinary use and enjoyment of his or her property. Conduct is unreasonable if it is prohibited by law or violated regulations which were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with the other person’s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense. In determining whether the conduct was unreasonable, you should consider whether it was the kind of conduct an ordinary person would expect might interfere with the use and enjoyment of another person’s property or cause real and substantial injury to another person’s health or comfort.

You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The plaintiffs right to be free from interference with his or her use and enjoyment should be balanced against defendant’s right to use his or her property. And the plaintiff must expect to endure some inconvenience or discomfort which results from the defendant’s reasonable use of his or her property. In determining what reasonable amount of interference, inconvenience, or discomfort the plaintiff should be expected to tolerate you should consider the right of the defendant to use his or her property or to conduct his or her affairs in a reasonable manner.

The extent of interference which would result from the defendant’s reasonable use of his or her property or conduct of his or her affairs, the circumstances under which the interference occurred, the nature of the area in which the real property is located, and the uses being made of other property in the area. ³⁶⁹ A person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance. The defendants in this case have asserted that the natural flow of water in the neighborhood leads to plaintiffs property. You are instructed that even if the natural flow of water in the neighborhood leads to plaintiffs property, the defendants are liable if they created a change in that water flow which created a nuisance to the Wietzkes. The jury returned a verdict in favor of the Church on the remaining nuisance and trespass counts, and the verdict sheet provided as follows, regarding the Church’s liability: 1.

Do you find, by a preponderance of the evidence, that the Defendants are liable to Plaintiffs on their claim of nuisance? Yes No X 2. Do you find, by a preponderance of the evidence, that the Defendants are liable to Plaintiffs on their claim of trespass? Yes No X If you answered “Yes” to either of the above questions, proceed to questions 3 and 4.

If you answered “No” to any of the above questions, your verdict is complete. The Wietzkes noted an appeal to the Court of Special Appeals, arguing the same five points they raise before us. 7 ³⁷⁰ The Court of Special Appeals affirmed the judgment, reasoning that as to the nuisance count, “the pattern jury instructions given by the court were a correct statement of, and adequately covered, the law of nuisance as a strict liability cause of action.” As to the trial judge’s denial of the Wietzkes’ county approval instruction, the court reasoned that the record did not reflect that the Church was seeking to defend the action “on the basis that they were in compliance with County mandates,” and thus, the Wietzkes’ requested instruction was inapplicable. With respect to the Wietzkes’ requested “other source” instruction, the court reasoned that the Church “did not contend that other sources absolved them from liability if the existence of a nuisance and causation were otherwise established,” likewise rendering the Wietzke’s instruction inapplicable. As to the negligence count, the court reasoned that the Wietzkes “introduced no evidence” that the Montgomery County ordinance violated was designed to prevent the type of harm claimed.

In challenging the propriety of the jury instructions on the issue of nuisance, the Wietzkes contended at trial, before the Court of Special Appeals, and now before us, that it was error for the trial judge to instruct the jury to consider the reasonableness of the Church’s use of its property. The Wietzkes argue that, because the doctrine of private nuisance is a matter of strict liability, it was irrelevant how the Church used its property if the Wietzkes’ use and enjoyment of their property was substantially interfered with. The Wietzkes also have argued that it was error for the trial judge not to instruct the jury to disregard the County’s approval of the Church’s project or that other sources may have contributed to the Wietzkes’ flooding as defenses. To this end, the Wietzkes offered the following instruction in lieu of that which was given: ³⁷¹ Nuisance is a strict liability cause of action.

This means that it does not matter whether or not the nuisance was the result of illegal or negligent conduct. Even if a business is lawful and conducted in the most approved method, it is still a nuisance if it interferes with the comfortable enjoyment by another of his property. In this case, there has been evidence that the County approved some of the Church’s activities. The County approval, however, is not a defense to an action for nuisance.

If the Church’s activities constituted a nuisance to the Wietzke’s, then the Church is liable for that nuisance regardless of any County approval. If water from the Church property contributed to flooding of the Wietzke property, it is not a defense that water from other sources may have also contributed. If you find that the water from the Church property contributed to flooding of the Wietzke property then the Church is liable for any resulting nuisance to the Wietzkes. In essence, the Wietzkes’ instructions would have had the jury instructed only as to whether their comfortable use and enjoyment was adversely affected, without any other consideration.

In reviewing the propriety of a jury instruction, we use an abuse of discretion standard. In Collins v. National Railroad Passenger Corp., 417 Md. 217 , 9 A.3d 56 (2010), we explained that, “[a] trial judge exercises discretion by assessing whether the evidence produced at trial warrants a particular instruction on legal principles applicable to that evidence and to the theories of the parties.” Id. at 228 , 9 A.3d at 63 . To succeed on a claim that a trial judge abused his or her discretion in denying a party’s requested jury instructions, we determined that three criteria must be met: (1) the requested jury instruction must be a correct exposition of the law; (2) the particular law must have been applicable to the evidence before the jury; and ³⁷² (3) the substance of the requested instruction must not have been fairly covered by the instructions actually given. Id. at 229 , 9 A.3d at 63 (citations omitted).

The Wietzkes’ first two certiorari questions espouse separate, but inextricably linked, legal conclusions, that only the level of interference to an affected landowner can be considered in assessing a nuisance claim and that strict liability must be imposed once the nuisance is established. As a result, we will address the first two questions together in our initial discussion of the nuisance doctrine. The Wietzkes’ first instruction equated nuisance with a determination of whether the Wietzkes’ “comfortable enjoyment” of their property was interfered with: Nuisance is a strict liability cause of action. This means that it does not matter whether or not the nuisance was the result of illegal or negligent conduct.

Even if a business is lawful and conducted in the most approved method, it is still a nuisance if it interferes with the comfortable enjoyment by another of his property. In contrast, the trial judge’s instruction involved a much more comprehensive inquiry, in which the use of its property by the alleged offender must be balanced against the right of the affected landowner to be free from interference: A nuisance is any unreasonable conduct which causes real, substantial, and unreasonable damage to, or interference with, another person’s ordinary use and enjoyment of his or her property. Conduct is unreasonable if it is prohibited by law or violated regulations which were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with the other person’s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense. In determining whether the conduct was unreasonable you should consider whether it was the kind of conduct an ordinary person would expect might interfere with the use ³⁷³ and enjoyment of another person’s property, or cause real and substantial injury to another person’s health or comfort.

You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The plaintiffs right to be free from interference with his or her use and enjoyment should be balanced against defendant’s right to use his or her property. And the plaintiff must expect to endure some inconvenience or discomfort which results from the defendant’s reasonable use of his or her property. In determining what reasonable amount of interference, inconvenience, or discomfort the plaintiff should be expected to tolerate you should consider the right of the defendant to use his or her property or to conduct his or her affairs in a reasonable manner.

The extent of interference which would result from the defendant’s reasonable use of his or her property or conduct of his or her affairs, the circumstances under which the interference occurred, the nature of the area in which the real property is located, and the uses being made of other property in the area. A person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance. The defendants in this case have asserted that the natural flow of water in the neighborhood leads to plaintiffs property. You are instructed that even if the natural flow of water in the neighborhood leads to plaintiffs property, the defendants are liable if they created a change in that water flow which created a nuisance to the Wietzkes.

Whether the trial judge gave a correct exposition of the law of nuisance is the issue. Nuisance is “one of the most ancient concepts in the Anglo-American common law,” existing at least as far back as 1066 A.D. David A. Thomas, Thompson on Real Property § 67.01, at 111 (2d ed., 2010 Supp.). The doctrine was originally conceived to protect private landholders from being dispossessed of their property. Id.

As the doctrine of nuisance evolved, however, it also became one of the primary tools for protecting private landholders against “substantial interfer ³⁷⁴ enees” with their possession of the land. Importantly, the claim is “phrased as a harm or nuisance to the land” itself, not as a harm to the individual landholder. Id. Nuisance, then, is somewhat of a hybrid cause of action, involving property tenets, as well as tort principles.

Since its inception, moreover, the doctrine of nuisance has evolved to protect the property rights of the public as well, where a “right common to the general public” has been interfered with. Thomas, § 67.02, at 113. Regarding the distinction between a public and private nuisance, we have explained that “public nuisance is an injury to the public at large or to all persons who come in contact with it,” while “private nuisance is an injury to an individual or a limited number of individuals only.” Adams v. Commissioners of Trappe, 204 Md. 165, 170 , 102 A.2d 830, 834 (1954). Thus, while the same activity may give rise to both a public and a private nuisance, the difference is in whether the property rights affected are either confined to private ownership or are cast broadly across the general public: A livestock feed lot or a refinery may produce pests or odors over such a wide area that the rights of the general public are affected and, at the same time, nearby private landowners may suffer extraordinary interference with the use and enjoyment of their own lands.

Thomas, § 67.02(a), at 114. Because the case before us involves interference with only the Wietzkes’ use and enjoyment of their own private property, we hereafter confine our analysis to private nuisance, which we have defined as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 , 642 A.2d 180, 190 (1994), quoting Section 821D of the Restatement (Second) of Torts (1965). The universe of private nuisance is split into a further dichotomy, nuisances per se and nuisances in-fact. See Thomas, § 67.03, at 117.

A nuisance per se, or a nuisance at law, involves the use of one’s land, which is “so unreasonable,” that it is deemed to constitute an actionable nuisance “at all times ³⁷⁵ and under any circumstances.” Id.; Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 377 , 347 A.2d 826, 832 (1975) (“To constitute a nuisance per se, the activity sought to be enjoined must be a nuisance ‘at all times and under any circumstances regardless of location or surroundings.’ ” (quoting Commissioners of Trappe, 204 Md. at 170 , 102 A.2d at 834 )). Such nuisances are typically found only where a particular land use is “motivated by malice toward the plaintiff landowner,” is “forbidden by law,” or is “flagrantly contrary to generally accepted standards of conduct.” Thomas, § 67.03(a), at 118; Commissioners of Trappe, 204 Md. at 175 , 102 A.2d at 836 (“to engage in any form of business in defiance of laws regulating or prohibiting [a] business constitutes a nuisance per se”); State use of Bohon v. Feldstein, 207 Md. 20, 34 , 113 A.2d 100, 106 (1955) (explaining that it is a nuisance per se if “the thing itself’ works “some unlawful peril to health or safety of person or property.” (quoting Sherwood Bros., Inc. v. Eckard, 204 Md. 485, 494 , 105 A.2d 207, 211 (1954))); see, e.g., Patapsco Electric Co. v. Mayor and City Council of Baltimore City, 110 Md. 306, 312 , 72 A. 1039, 1041-1042 (1909) (concluding that the City of Baltimore could seek an injunction against a power company from operating on city property because the company had not yet received the required consent from the Mayor and City Council). Nuisances in-fact, or nuisances per accidens, 8 arise where, considering the “particular setting” and surrounding circumstances, a particular land use constitutes a nuisance even though “the conduct might not be a nuisance in another locality or at another time or under some other circumstances.” Thomas, § 67.03(b), at 124; Commissioners of Trappe, 204 Md. at 170 , 102 A.2d at 834 (“A nuisance in fact is an act, occupation, or structure, not a nuisance per se, but one which becomes a nuisance by reason of the circumstances, location, or surroundings.”). As early as 1879, we had occa ³⁷⁶ sion to consider the issue of nuisance in fact in Dittman & Berger v. Repp, 50 Md. 516 (1879), in which we determined that the maintenance of loud and vibratory beer brewing devices created a private nuisance sufficient to justify the issuance of an injunction.

We explained that, in order to be actionable, a nuisance must be one which “in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant.” 50 Md. at 522 (emphasis added). We ordained that consideration of the circumstances of a given nuisance claim necessarily involved a review of “the locality, the nature of the trade, the character of the machinery, and the manner of using the property producing the annoyance and injury complained of.” Id.; see also Hendrickson v. Standard Oil Co., 126 Md. 577, 588 , 95 A. 153, 157 (1915) (“The facts of each case must determine the question whether a nuisance exists against which a neighboring proprietor is justly and reasonably entitled to call upon a Court of equity” for relief). In Short v. Baltimore City Passenger Railway Company, 50 Md. 73 (1878), we considered a private nuisance claim, such as that brought in the instant case, brought against a commercial railroad where, after clearing its tracks of snow, the railroad had allegedly created a large snow ridge that reportedly concentrated the flow of surface waters onto a nearby property. We were asked to determine whether it was error for the trial judge to instruct the jury to consider the reasonableness of the railroad’s use of its property in finding whether the railroad had created an actionable nuisance.

In framing our analysis, we explained that the nuisance inquiry necessarily involved the balancing of conflicting property rights, and to that end, a determination of whether the offending landowner’s use of its own property was “reasonable, usual, and proper”: As a general rule, it is conceded that every one must so use his own property and exercise the rights incident thereto, in such a manner as not to injure the property of another. And it is equally true, that the mere lawfulness of the act is not in itself a test in all cases, of exemption from liability for ³⁷⁷ injuries resulting therefrom to the property of others. But yet, there are certain rights incident to the dominion and ownership of property, in the exercise and enjoyment of which a person will not be liable for damages, although injury may be occasioned thereby to the property of another.... The question then is, what is the true test in actions of this kind, by which the exemption from liability is to be determined?

We think it may be safely said, both on principle and on authority, that the true test is, whether in the act complained of, the owner has used his property in a reasonable, usual and 'proper manner, taking care to avoid unnecessary injury to others. Short, 50 Md. at 81-82 . We affirmed on the basis that the trial court’s instructions had correctly admonished the jury to consider the reasonableness of the railroad’s use of its property. In other late nineteenth century cases, we had occasion to flirt with discussing only the unreasonableness of the interference caused to the affected landowner’s use and enjoyment as a basis for relief, but never expressly adopted a view consistent with that doctrine nor deflected one that balanced reasonable use versus unreasonable interference as adopted in Short .

To illustrate, in Adams v. Michael, 38 Md. 123 (1873), we were asked to determine whether a petition to prospectively enjoin the construction of a felt-roofing facility in close proximity to a group of residential tenements was erroneously dismissed. We framed the nuisance analysis as one focusing solely on whether the activity complained of would interfere with “the ordinary comfort of human existence”: [Wjhether it be smoke, smell, noise, vapors, or water, or any gas or fluid ... [t]he 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 as to injure his property.... The 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? ³⁷⁸ Id. at 127-28 . (internal quotation marks omitted).

Also, in both Dittman, 50 Md. at 516 , and Woodyear v. Schaefer, 57 Md. 1 (1881), we dealt with questions relating to the propriety of granting injunctions to restrain the maintenance of nuisances and applied the framework set forth in Adams. In this regard, see Robert G. Bone, Normative Theory and Legal Doctrine in American Nuisance Law: 1850 to 1920, 59 S. Cal.L.Rev. 1101, 1184 (1986). Our opinion in Susquehanna Fertilizer Company v. Malone, 73 Md. 268, 280 , 20 A. 900, 902 (1890), however, embraces the balance of use against interference test. In Susquehanna Fertilizer Company , in the context of a commercial fertilizer company’s alleged creation of overwhelming and offensive odors, we suggested that the concept of reasonable use of property by the alleged offender was essential to the discussion of nuisance in fact.

Thus, we advised that not all inconveniences to surrounding landowners would justify limiting the reasonable use of the offending landowner’s property: [I]n actions of this kind, the law does not regard trifling inconveniences.... [I]n 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. [I]f 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. Id. at 280 , 20 A. at 902 . In more modern nuisance in-fact cases, we also have balanced the competing rights of landowners. In Evans v. Burruss, 401 Md. 586 , 933 A.2d 872 (2007), an affected landowner discovered that a neighbor had received a building permit to construct four amateur radio towers on his property, ³⁷⁹ only after contractors showed up and began developing the neighbor’s land.

Unavailingly, the affected landowner requested a stop work order from the Montgomery County Department of Permit Services. Thereafter, the affected landowner lost two appeals before the Board of Appeals and the Circuit Court for Montgomery County on the basis that the appeals were untimely. We were asked to determine whether the affected landowner had a due process right to be given actual notice that his neighbor had been issued a building permit. In our analysis, we discussed the competing property rights of adjoining landowners, significantly characterizing the doctrine of private nuisance as one which “balance[d] the conflicting rights of landowners.” Id. at 610 , 933 A.2d at 886 , quoting Prah v. Maretti, 108 Wis.2d 223 , 321 N.W.2d 182, 187 (1982).

In the brief discussion, we determined that because private nuisances existed “independently of the issuance of