City of Baltimore v. Warren Mfg. Co.

• Decision Date: 13 July 1882
• Citation: 59 Md. 96
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. THE WARREN MANUFACTURING COMPANY, and SUMMERFIELD BALDWIN.
• Court: Maryland Court of Appeals

59 Md. 96

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. THE WARREN MANUFACTURING COMPANY, and SUMMERFIELD BALDWIN.

Court of Appeals of Maryland

July 13, 1882

APPEAL from the Circuit Court for Baltimore County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STONE, GRASON, MILLER ALVEY, ROBINSON, and RITCHIE, J.

John P. Poe, and Arthur W. Machen, for the appellants.

The right of the proprietor of the banks of the stream to the flow of the water in a pure and natural condition is incontrovertible; and that it is proper for a Court of equity to protect that right by injunction is now equally well settled. Wood on Nuisances, section 677; 1 High on Injunction, secs. 794, 810; Kerr on Injunction, 382; Atty. Gen. vs. Birmingham, 4 Kay & Johnson, 528; Atty. Gen. vs. Leeds Corporation, L. R., 5 Chan., 583; Holsman vs. Boiling Spring Bleaching Co., 1 McCarter, N J., 335.

The right of the riparian proprietor is not limited to any previous use which the water in former times was put to. A new mode of enjoyment gives a right at once to sue for the injury done in respect of such new use. Pennington vs Brinsop Hall Coal Co., L. R., 5 Ch. D., 773; Holker vs. Porritt, L. R., 10 Ex., 62.

It is not here a mere question of comfort or convenience, but one of health also. Incalculable importance is given to the means taken for the preservation of the purity of water used for consumption in drinking and cooking, in a great number of households, by the fact that modern science has established the probability that disease may be communicated by the distribution of particles of feculent matter, in such manner as to be taken into the human system, producing fatal and wide-spreading consequences, although the germs so propagated "may be either inappreciable or scarcely appreciable by the most minute chemical analysis." "It is impossible in that state of things to say what amount of injury may be done by polluting, even partially, a stream which flows a considerable distance." Goldsmid vs. Tunbridge Wells Improvement Commissioners, L. R., 1 Eq., 170.

And while the danger from some other kinds of impurity may not be equally great, the same principle applies as to all, and prohibits the introduction into the mass of pure drinking water, of substances which, in themselves, are offensive or capable of causing contamination.

Any possible inconvenience, to which the defendant may be subjected in yielding obedience to an injunction, cannot be allowed to enter into the question. Att'y Gen. vs. Birmingham, 4 Kay & Johnson, 528; Spokes vs. Banbury Board of Health, L. R., 1 Eq., 47; Att'y Gen. vs. Conley Hatch Lunatic Asylum, L. R., 4 Chan., 153; Gladfelter vs. Walker, 40 Md., 1.

The fact that the pollution of water which is complained of amounts to a public nuisance, far from constituting any objection to the jurisdiction of equity, furnishes additional reason, under the circumstances of this case, for its interposition at the instance of the city. Hamilton vs. Whitridge, 11 Md., 128; Dittman & Berger vs. Repp, 50 Md., 516.

The question of the propriety of granting the preliminary injunction must be determined, of course, upon the case stated in the bill, but should long use be set up hereafter as a ground of defence, it is certain that no lapse of time will enable a party to prescribe for a nuisance. Woodyear vs. Schaefer, 57 Md., 1; People vs. Cunningham, 1 Denio, 536; Mills vs. Hall, 9 Wend., 315; Goldsmid vs. Tunbridge Wells Improvement Commissioners, L. R., 1 Eq., 161; Commonwealth vs. Upton, 6 Gray, 473; 4 Waite's Actions and Defences, 754; Wood on Nuisances, sec. 724.

Nor can it be made matter of defence that other parties are engaged in similar acts tending to the pollution of the stream. Woodyear vs. Schaefer, 57 Md., 1; Gladfelter vs. Walker, 40 Md., 1.

R. W. Baldwin, and Charles E. Phelps, for the appellees.

The bill must clearly show a case not of theoretical and possible, but of actual real injury, present or impending, for which a Court of law would award substantial damages. Adams vs. Michael, 38 Md., 123.

And the injury must also be shown to be irreparable, and such as could not be fully compensated by an action at law. Fort vs. Groves, 29 Md., 188.

A bill for an injunction against the alleged nuisance of a felt-roofing factory, was dismissed for want of precise and definite information upon the following points:

1. Exact distance of factory from complainant's dwellings. 2. Extent of factory. 3. Sort of combustible materials used. 4. Quantity of smoke, &c., likely to be emitted.

Without full disclosure on these points, the Court was unable to conclude whether the factory would certainly be a nuisance. Adams vs. Michael, 38 Md., 123, cited and re-affirmed in Woodyear vs. Schaefer, 57 Md., 12.

There is no definite information as to the locality of the appellant's lands and water rights on the Gunpowder river, conveyed by Patterson and others, nor as to the locality of the appellant's dam and lake and reservoir, nor as to the locality of the Warren factory, "situated near the Gunpowder river, or one of the tributaries thereof," and consequently no information whatever as to the very material fact of the distance between the factory and the lake, which, in connection with the equally serious omission of any information as to the capacity or volume of the Gunpowder, is alone fatal to the complainant's application. Adams vs. Michael, 38 Md., 123.

There is no information as to the sort of "injurious ingredients" used in impregnating the "refuse water," nor as to their approximate quantity, relatively to the volume of the stream. (See Holsman vs. Bleaching Co., 1 McCarter, 341, cited in Woodyear vs. Schaefer, 57 Md., 12.)

The Court is perhaps expected to infer that the "large privies" "at or near said factory," are those habitually used by the factory people, and that the factory people are numerous. If that be the fact, it is a fact that could have been and should have been stated. (46 Md., 76.) But there is an absolute failure to state the extent of the use of those privies and hog-pens, or the approximate quantity of objectionable matter issuing from them, or their locality as respects proximity to the river ("at or near said factory," which factory is "situated near the Gunpowder river or one of the tributaries thereof,") or as to the mode in which their contents are discharged, whether superficially, or by percolation.

It is nowhere stated that the water is effectually polluted at the points of delivery to the consumer. It is not stated that the water is polluted at the reservoir. It is not even intimated that it is in danger of pollution at those places. It is not distinctly and unequivocally stated that the water is polluted even at the lake.

A bill too vague and feeble in its charges to negative such an hypothesis is not an adequate foundation for any relief--certainly not an injunction ex parte, and should be dismissed.

But this is not all. The prayer of the bill, in its loose generality, goes far beyond the stating part. If all the "hog-pens, et cetera," were abolished, and all the "artificial impurities" stopped, the exigency of the writ prayed would not even then be satisfied. Such an injunction as that applied for, calls for nothing short of the immediate stoppage of the factory itself by preventing its "waste or refuse water" from being returned to the river. It may not have been so intended, but the description in the first clause of the prayer, literally applies to all the innocent working water that passes over the mill-wheel.

The injunction, if granted at all, must be granted as prayed. The Court cannot grant an injunction in other terms than those contained in the prayer of the bill. 2 High on Injunctions, sec. 1582; Burdett vs. Hay, 33 L. J. Ch., 41; Kelly vs. M. & C. C., 53 Md., 134, 144.

ALVEY J., delivered the opinion of the Court.

This is an application by the Mayor and City Council of Baltimore for an injunction against the defendants, to restrain them from polluting the Gunpowder river, the source of supply of water to the city for drinking and other purposes.

By the Code of Public Local Laws, Article 4, secs. 928 to 933, the complainants were authorized to contract for, purchase, and hold in fee-simple, or to lease for a term of years, or, if unable to obtain the same by contract, to have condemned, any land, real estate, spring, brook, water and water-course, or water right, deemed necessary and proper, and to use the same forever, or for a term of years, for the purpose of enabling them to provide for, conduct, and supply the needful quantity of good wholesome water to the inhabitants of the city, for drinking and other purposes.

The bill charges that the complainants, by virtue and in pursuance of the authority thus conferred upon them, did purchase of certain persons, in fee simple, certain lands lying in Baltimore County, adjacent to and including a portion of the bed of a certain natural water-course, called the Gunpowder river, with the water rights appurtenant and belonging to the lands so purchased, including the right to use the water of the stream in its natural, pure and unpolluted condition. That in the exercise of the powers conferred upon them by the statute, and by virtue of the proprietary rights acquired by the purchase of the land before mentioned, they caused to be constructed a dam across the stream, and thereby formed a lake, and that they have also caused to be constructed a conduit or tunnel leading from such dam or lake to a reservoir, situated near the city and from which reservoir the water is now being distributed to various parts of the city, in order to supply the inhabitants thereof with...