City of Baltimore v. Sackett

• Decision Date: 25 June 1919
• Docket Number: 37.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. SACKETT et al.
• Court: Maryland Court of Appeals

107 A. 557

135 Md. 56

MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. SACKETT et al.

No. 37.

Court of Appeals of Maryland

June 25, 1919

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

"To be officially reported."

Suit by Augustus J. Sackett and others against the Mayor and City Council of Baltimore and others. From an order overruling defendants' demurrers to the bill, defendants appeal. Order reversed, and bill dismissed, without prejudice.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and ADKINS, JJ.

S. S Field, of Baltimore, for appellants.

Ridgely P. Melvin, of Annapolis, and Osborne I. Yellott, of Baltimore (Bruner R. Anderson, Lester L. Stevens, Emory L. Stinchcomb and Piper, Yellott, Hall & Carey, all of Baltimore, on the brief), for appellees.

BRISCOE J.

This case is presented, on an appeal from an order of the circuit court for Anne Arundel county, overruling the defendants' demurrers to a bill in equity, for an injunction to restrain a prospective or probable nuisance.

The original bill was filed by a number of property owners and residents of Anne Arundel county against the mayor and city council of Baltimore, D. A. Gaumitz, and Lewis Towing & Lighterage Company.

Subsequently, by an amended or supplemental bill, other persons and corporations were made parties defendants.

The object and purpose of the proceedings, it will be seen from the allegations of the bill, is to restrain the defendants by injunction from disposing of the garbage from the city of Baltimore, on a farm, known as the Jubb farm and owned by the city, on Bodkin creek, in Anne Arundel county.

The prayers for relief are substantially the same in both bills, and appear to be as follows:

(1) That the defendants may be permanently enjoined against hauling to, dumping upon, or reducing the garbage of Baltimore City on the Jubb farm or establishing a piggery on the farm for the consumption of the garbage.

(2) That the mayor and city council of Baltimore may be enjoined from further consummating or carrying out or doing anything in the furtherance of the actual or proposed contract between it and the defendant D. A. Gaumitz, looking to the establishment of a piggery on the Jubb farm and conveying the garbage of Baltimore City to the Jubb farm for that purpose.

(3) That the mayor and city council of Baltimore and the Lewis Towing & Lighterage Company may be enjoined by the peremptory enjoining order of this court issued on such notice as the court may prescribe, unless cause to the contrary be shown, from conveying to or dumping upon the Jubb farm the garbage from Baltimore City or any portion thereof.

(4) That the mayor and city council of Baltimore may be enjoined from proceeding with the erection of a temporary reduction plant on the Jubb farm for the purpose of reducing the garbage of Baltimore City thereon, and from conveying to the Jubb farm all or any portion of such garbage from Baltimore City for the purpose of there being so reduced.

The facts upon which the relief is asked as set forth in the bill is thus stated:

First. That the plaintiffs are severally seized and possessed of land near Bodkin creek in the Third election district of Anne Arundel county, most of them residing upon their holdings.

Second. That the mayor and city council of Baltimore have recently purchased a tract of land from Charles H. Jubb, containing 125 acres on the south side of Bodkin creek, and have taken possession of this farm.

Third. That the mayor and city council of Baltimore have awarded to the defendant D. A. Gaumitz a contract for the disposal of the garbage of Baltimore City for a term of five years beginning January 1, 1919, with the understanding that the garbage would be transported from Baltimore City to the Jubb farm, and there fed to some 15,000 pigs to be kept thereon, and the board of awards of the city estimating that by this manner of disposing of the garbage of Baltimore City the city would receive a net revenue of $16,500 for the garbage, and save the annual cost of $75,000 heretofore paid for the disposition of the same, making a net saving to the city of $91,500 a year.

Fourth. That until the piggery is permanently established the garbage of Baltimore City is to be transported in scows to the Jubb farm, there to accumulate until the piggery is established, and the mayor and city council have made plans for the location of a temporary plant for the reduction of all or a portion of the garbage between January 1 and March 1, 1919, and that the feeding contract has been assigned to the American Feeding Company and others.

It is thus averred in substance that the removal and transporting by the city to the Jubb farm of the garbage from Baltimore City, and there causing it to be reduced in a temporary reduction plant or fed to pigs in the manner proposed, will result in a nuisance and destroy the value of property holdings in that section and render the property unmarketable, and, for certain reasons stated, will deprive the owners of the reasonable use and enjoyment of their property rights, and will cause irreparable loss, damage, and injury to each of the plaintiffs.

The defendants, the appellants here, demurred to the bill, and, as the demurrers of all the defendants are similar, the cause and grounds of the demurrer of the mayor and city council of Baltimore will be here set out:

(1) That this court is without jurisdiction, because upon the face of the bill it appears that none of the defendants are residents of Anne Arundel county, and the bill contains no averment of any fact or facts giving this court jurisdiction over this defendant. (2) That this court is without jurisdiction, because there is no sufficient allegation of any wrong actually committed or threatened, remediable in a court of equity, and because there is no sufficient allegation of any fact or facts showing irreparable damages to the plaintiffs or any of them.

(3) That the bill does not aver facts showing any wrong committed or threatened which is remediable in a court of equity.

(4) That the bill contains no sufficient statement of facts showing any irreparable damages to the plaintiffs or either of them, either suffered or impending.

The first objection presented by the defendants' demurrer, that the circuit court of Anne Arundel county was without jurisdiction to maintain the suit because the defendants are nonresidents of Anne Arundel county, cannot, under the authorities, be sustained.

It is averred in the bill that the situs of the subject-matter of the proceedings is within Anne Arundel county, and the property to be affected by the threatened nuisance is situate in that county.

In Gunther v. Dranbauer, 86 Md. 1, 38 A. 33, it is said if the subject of the injury be real estate or an easement such as a right of way, whether private or public, obviously the action must be local, for the reason that the injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured was actually situated.

In Crook v. Pitcher, 61 Md. 510, the court held, if the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Mayor and City Council of Baltimore v. Meredith's Ford Turnpike Co., 104 Md. 351, 65 A. 35; Nettie Taylor v. Mayor and City Council of Baltimore, 130 Md. 133, 99 A. 900, L. R. A. 1917C, 1046.

The cases in this court are reviewed and considered in Phillips v. Baltimore City, 110 Md. 436, 72 A. 902, 25 L. R. A. (N. S.) 711, and it is there held that, in this state, the rule requiring local actions to be brought in the jurisdiction where the cause of action arose is well settled, and it applies as well to municipal corporations as to all other corporations.

The general rule is thus stated, in 29 Cyc. 1237, to be that a suit to abate or restrain a nuisance can be brought in the county or district where the nuisance is situated, and should be tried there unless a...