Block v. City of Baltimore

• Decision Date: 30 June 1925
• Docket Number: 66.
• Citation: 129 A. 887,149 Md. 39
• Parties: BLOCK ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.
• Court: Maryland Court of Appeals

129 A. 887

149 Md. 39

BLOCK ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.

No. 66.

Court of Appeals of Maryland

June 30, 1925

Appeal from Circuit Court, Anne Arundel County, in Equity; Francis Neal Parke, Wm. Henry Forsythe, Jr., and Robert Moss, Judges.

Suit by John Block and others against the Mayor and City Council of Baltimore and another. Decree for defendants on demurrer, and plaintiffs appeal. Reversed and remanded, with directions.

Argued before PATTISON, URNER, ADKINS, OFFUTT, and WALSH, JJ.

John S Strahorn, of Annapolis, and S. Ralph Warnken, of Baltimore for appellants.

Charles C. Wallace, Asst. City Sol., of Baltimore (Philip B. Perlman City Sol., of Baltimore, and Jerry L. Smith, of Annapolis, on the brief), for Mayor and City Council of Baltimore.

William L. Marbury, Sr., of Baltimore (Marbury, Gosnell & Williams and Mullikin & Porter, all of Baltimore, and Nicholas H. Green, of Annapolis, on the brief), for Sanitary Reduction Co.

OFFUTT J.

On or about July 27, 1921, the mayor and city council of Baltimore, hereinafter referred to as the city, contracted with the Sanitary Reduction Company, a corporation, for the disposal, by the Arnold Egerton system of reduction, of all garbage produced in Baltimore city, which, under the contract, the city agreed to deliver on scows at the reduction company's plant at Spit Point on Bodkin creek in Anne Arundel county.

After the execution of that contract, and until this suit, the city transported its garbage on scows to the reduction company's plant, where it was converted by that company into oils, grease, tankage, and other products. On June 2, 1924, John and Lucy Block, and others occupying as tenants or owners 44 different tracts of land, located at distances varying from 200 yards to several miles from Spit Point, filed in the circuit court for Anne Arundel county, in equity, their bill of complaint against the reduction company, in which they complained that the manner in which the garbage produced in the city of Baltimore was transported to Spit Point and there reduced caused a nuisance which affected them in the comfortable enjoyment of their respective properties, and in which they prayed that an injunction issue restraining the reduction company from continuing the nuisance. A demurrer to that bill was sustained, and, with the leave of the court, it was amended, making the city a party defendant. Demurrers filed to the amended bill were also sustained, and the bill dismissed, and from that order this appeal was taken.

The most important question presented by the appeal, in so far as the actual and substantial rights and privileges of the parties are concerned, is whether the allegations of the amended bill make out a case for equitable relief, although, so far as the immediate litigation is concerned, the form of the pleadings raising that question is quite as important. Whilst, in the view we take of the case, the appeal might be disposed of on the objections to the form of the pleadings, yet, since the conditions complained of are continuing in character, and as the dismissal of the bill in this case ought not to prejudice the right of the complainant to seek relief in any other proceeding involving the same facts, we feel that we should pass upon both questions, and we will therefore deal with them in the order in which they have been stated.

To understand the significance of the objections urged, both to the formal sufficiency of the pleadings, and to the right of the appellants to equitable relief, upon the case made out by the bill, it is necessary to refer at some length to the bill, the accompanying affidavits, and the exhibits filed with it.

The amended bill, which is filed against both the city and the reduction company, contains fourteen paragraphs.

The first paragraph alleges that all the plaintiffs own or lease property in close proximity to Spit Point, where the reduction company is engaged in the business of receiving and reducing garbage and dead animals for profit.

The second and third paragraphs set out in some detail the location and use of the several properties occupied by the plaintiffs and their respective interests therein. The fourth alleges the execution of the contract between the city and the reduction company, and states the terms thereof.

The fifth charges:

"That, as the garbage and dead animals are collected in different parts of the city of Baltimore, it is put on board scows, holding from 175 to 250 tons each, located at one or more points in said city. When the scow becomes filled, it is transported, at the expense of Baltimore city, to the reduction company's plant at Spit Point. The exact number of scows of garbage and dead animals received by the reduction company at Spit Point is not definitely known to your orators, but your orators show that at least one scow each day, and sometimes two scows a day, filled with garbage and dead animals, are sent to the reduction company's plant. The scows, while being filled in Baltimore, during transportation to, and while being unloaded at, the reduction company's plant, are open and uncovered, and exposed to the air and sun, during which time large numbers of flies and other insects gather, feed on the garbage and dead animals, and propagate in great numbers, and are brought to your orators' property and homes."

The sixth describes the process by which the garbage and dead animals are "converted" or "reduced."

The seventh alleges:

"That, during the time the scows are being loaded in Baltimore city, the mass of garbage and dead animals attracts large quantities of flies which feed on said garbage, and propagate and remain with the scow until the contents thereof are unloaded at Spit Point. Most of the flies then disperse and come to the homes of your orators and the homes of other persons in the vicinity of Spit Point. Your orators are unable to adequately state the number of flies that are brought to their homes in this way, but some idea can be gotten as to the number of flies from the fact, which your orators now aver, that frequently the number of flies on said scows as they are brought down the bay to Spit Point are so numerous and dense that they have the appearance of a cloud of smoke over and following the scow. Your orators further show that the refuse accumulated around the defendant's plant is also a breeding place for myriads of flies. All of the aforementioned flies swarm in droves throughout the neighborhood, cover the beasts of the field, and interfere with the work and management of the same, penetrate the homes of your orators, who live within 2 or 3 miles of the reduction company's plant, notwithstanding the fact that doors and windows are sceened, and cover the food on the tables and in the kitchens and pantries of your orators' homes. Especially during warm weather, as the scows are not covered, the decomposing garbage and dead animals get into such condition that millions of maggots are created, and at least one variety of the flies (hereafter called maggot flies, feed on these maggots. Your orators further show that the flies in their community have greatly increased since the reduction company's plant has been in operation, which your orators have been informed, and therefore believe and aver, began operating on or about December 1, 1921, and that said increase is directly due to the garbage and dead animals transported by Baltimore city to, and received by the reduction company at its plant. The said flies come into the homes of your orators and swarm upon the food upon their tables; said maggot flies depositing maggots on said food and rendering the same most nauseating to those about to partake thereof, and making it absolutely unfit for human beings of ordinary sensibilities. That your orators are advised and believe and therefore aver that said flies are carriers of disease, and that their presence in the homes of your orators, after said flies have fed on the garbage and refuse on said scows and in and about the reduction company's plant, is apt to promote disease and epidemics of disease in the homes of your orators and in the community generally."

The eighth avers that the operation of its plant by the reduction company results in the discharge of large quantities of poisonous liquids, oil, and decomposed matter into the waters of Bodkin creek, which--

"has absolutely ruined the waters of Bodkin creek for all useful purposes and purposes of pleasure for which your orators, living thereon, have used the same. A large part of the surface of said waters is covered by a thick oily slime, the waters have become discolored, and the poisonous gases and liquids and decomposed matter which the said reduction company deposits into said waters has caused fermentation, and frequently the waters of said Bodkin creek at various places in the vicinity of the reduction company's plant are seen to spout up or boil or bubbles form thereon, due to fermentation of the matter on the bottom of said creek, which your orators charge is caused by the pollution of said waters by the poisonous gases, liquids, and decayed garbage and dead animals which are deposited therein by the reduction company."

And it further alleges that, as a result of these conditions, the shores of the properties of those of the plaintiffs who own land on Bodkin creek are covered with an oily slime, and that it is impossible for the plaintiffs to boat, swim, or fish in said waters, or to use them to keep fish or crabs alive in "live boxes" therein.

The ninth paragraph states:

"That the odors from the reduction company's plant, especially the odor which emanates from the stack into which the steam and dust escapes from the tankage as it is being dried is a horrible

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