Bishop Processing Co. v. Davis

• Decision Date: 04 June 1957
• Docket Number: No. 223,223
• Citation: 213 Md. 465,132 A.2d 445
• Parties: BISHOP PROCESSING COMPANY v. Robert DAVIS and Annie M. Davis, his Wife, et al.
• Court: Maryland Court of Appeals

Page 465

213 Md. 465

132 A.2d 445

BISHOP PROCESSING COMPANY v. Robert DAVIS and Annie M. Davis, his Wife, et al.

No. 223.

Court of Appeals of Maryland.

June 4, 1957.

William H. Price, Snow Hill, for appellant.

Marcus J. Williams, Berlin, for appellees.

Before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and D. K. McLAUGHLIN, Special Judge.

PRESCOTT, Judge.

This is a suit by the plaintiffs (appellees) to perpetually enjoin the defendant (appellant) from maintaining and operating its processing plant near Bishop, Maryland, on the basis that the same constitutes a nuisance, and that the odors emanating therefrom interfere with the rightful use and enjoyment by the plaintiffs of their properties in the area.

Many witnesses were offered by the appellant and the appellees, and much testimony was taken. It will be unnecessary to attempt to set forth all of this evidence in detail, but it amply supports a finding of the following facts:

The appellant, a Maryland corporation, (hereafter called 'Company') owns and operates a processing plant in Worcester County, Maryland, located a short distance east of U. S. Highway No. 113, about a mile south of the Maryland-Delaware line. The surrounding country is generally rural in nature, with three villages each located about a mile from the plant. The appellees live and their properties are south and southwest of the plant at distances ranging from one-half to one mile. The plant commenced operation sometime during the year of 1955, probably in the month of February. Normal hours of operation are from 3 o'clock in the afternoon to 2 o'clock in the morning, but the hours are irregular, depending upon the volume of by-products to be processed. The cost of the plant was approximately $625,000, of which $30,835.15 has been spent for odor reducing equipment, supplies and chemicals. The plant processes about 35,000 tons of material during a normal year of which 60%, or approximately 21,000 tons, is transported to the plant from Swift and Company in Chambersburg, Pennsylvania, and the Campbell Soup Company in Camden, New Jersey. The material processed consists of chicken feathers, offal, viscera, blood, heads, feet, beef bones and any other poultry by-products. The operating process of the appellant is to cook the raw materials, extract the liquids, dry the resulting solids and grind them into a fine meal, which is high in protein and widely used in fertilizer and poultry feeds.

The witnesses produced on behalf of the plaintiffs described the odors emanating from the plant in various terms. A few of these descriptions are as follows: 'You just can't live with it'; 'choking'; 'indescribable because they are awful'; 'something dead'; 'stifling and choking'; 'rotten'; 'I have myself been nauseated'; 'odor of carrion'; 'makes me sick to my stomach'; 'very unbearable'; 'awful stench'; and, 'bad as I have ever smelt, sickening.'

There is little doubt that the process used by the Company in manufacturing its products, when not curbed, produces a shocking and nauseating stench and odor which permeates the surrounding atmosphere for more than a mile and that the stench is so bad that even though the doors and windowns of the homes of persons living in the neighborhood surrounding the plant are closed, it comes into the homes causing throat irritations, severe headaches, loss of appetite, nausea, reguargitation and in other ways interferes with the comfortable enjoyment of their homes by the appellees in this proceeding. The appellees complained particularly of the terrific, indescribable and unwholesome effluvia that came from the plant and which varied only with the change of the direction of the wind, and stated that while there was relief when the wind blew the odor away from a particular location it was continuous during the operation of the plant in that it followed the wind and caused discomfort in another location in the direction from the plant in which the wind was blowing.

There are three methods of controlling or lessening the scent arising from the appellant's plant that were suggested by experts in that field. The first two, one by water and another by chemicals both having proved ineffective, the Company put in an incinerator in an attempt to dispense with the odors. The incinerator was put in at the suggestion of Dr. McCabe, an engineering expert. All of the suggestions made by Dr. McCabe were fully complied with and the machinery suggested by him has been set up and is in operation. Dr. McCabe was of the opinion that if the system named by him is properly set up, it will control the odors produced by the processing of the materials, and the present operation is apparently satisfactory to the State Board of Health. However, the evidence disclosed that at least down to a very few days before the trial unwholesome and obnoxious odors were still emanating from the plant.

The Company is unquestionably making an honest effort to improve the unfortunate situation and to dispense with the odors completely; but down to the above mentioned time, had not been fully successful, although much had been done to alleviate the condition, and there is a reasonable probability that the Company will be able to comply with the trial Court's decree and continue its operation.

Upon this evidence and after hearing arguments by counsel, the Chancellors entered a decree, which will be partly quoted in detail later enjoining the appellant from using its property in a certain manner; and it is from this decree that the present appeal has been taken.

The appellant's first assignment of error is that the Chancellors erred in admitting the testimony of certain witnesses 'not relating to the plaintiffs' (appellees') complaints regarding their persons or properties'. The testimony of these witnesses, some fourteen in number who mostly lived at various points surrounding the Company's plant and at distances usually greater than the properties of the appellees, consisted of what they personally experienced by way of smelling the acrid and pungent odors which arose from the processing plant; and how those odors affected them physically and in the enjoyment of their properties. The appellant contends that this evidence was inadmissible because it failed to 'directly' relate to any of the appellees or their properties, and as a result, it seeks to 'condemn and convict' the appellant on 'general reputation'. It will be unnecessary to pass upon each of the numerous objections individually as they, for all practical purposes, relate to the same subject matter and the reasons assigned for rendering the testimony inadmissible are, likewise, the same. We know of, and are cited, no rule of evidence that prohibits the admission of this testimony. On the contrary, when persons are complaining of offensive and obnoxious odors and their effect upon those persons and their properties, it seems peculiarly appropriate and impressively corroborative of the appellees' complaints to show that others, similarly situated, have experienced the same discomfort from the odors springing from the same source. It may be noted that while this Court was not required in that case to pass upon the question under consideration in Meadowbrook Swimming Club v. Albert, 173 Md 641, 197 A. 146, there were only a few plaintiffs, yet, in excess of twenty persons testified for the plaintiffs with regard to the nuisance, and its effect upon the witnesses rather than upon the properties or persons of the plaintiffs. We find no error in the Chancellors' rulings on the admissibility of this testimony.

II.

(a)

The appellant claims that there was no sufficient evidence to bring the complaints of the appellee down to the time of trial, in the face of the improvement brought about by the incinerator. As pointed out above, the Company unquestionably is making a serious attempt to control the offensive odors. However, the fact remains that the appellant conducted its business from about February of 1955 until November of 1956 without abating the condition complained of. Under these circumstances, the Company cannot validly assert a right to have the restraining decree deferred. Meadowbrook Swimming Club v. Albert, supra, 173 Md. at pages 648, 649, 197 A. 146.

(b)

The appellant further contends that the evidence failed to establish such a case as to entitle the appellees to substantial damages if they had sued at law. It argues that if the conduct of its business constituted a public nuisance, private citizens could not restrain this public wrong, unless they allege and prove damages to themselves different in character from that sustained by the public generally, something the appellees had failed to do. As authority for this claim, the appellant cites the case of Bauerschmidt v. Standard Oil Co., 153 Md. 647, 651, 139 A. 531. When suit is brought by a private citizen to restrain a public nuisance, alone, this is a correct statement of the law. Smith v. Shiebeck, 180 Md. 412, 421, 24 A.2d 795. However, a nuisance may be either private or public in character, and when it is both,...