Dittman v. Repp

• Decision Date: 26 February 1879
• Citation: 50 Md. 516
• Parties: ANDREW DITTMAN and John M. Berger v. HENRY REPP.
• Court: Maryland Court of Appeals

50 Md. 516

ANDREW DITTMAN and John M. Berger v. HENRY REPP.

Court of Appeals of Maryland

February 26, 1879

Appeal from the Circuit Court of Baltimore City.

The facts of the case are stated in the opinion of the court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, JJ.

Alfred J. Carr, for the appellants.

The appellants contend that a full case must be made out by the bill, otherwise the order for an injunction must be reversed.

If the appellee has a remedy at law, the extraordinary and summary process of injunction must not be set in motion. Banks v Busey, 34 Md. 437; Hankey v. Abrahams, 28 Md 588; Johnston v. Glenn, 40 Md. 200.

The bill should show that the appellee made a proper effort to prevent the erection of the steam engine, in the mode provided in the Baltimore City Code of 1869, p. 870, and that he failed in that effort. Baltimore v. Radecke, 49 Md. 217.

The injury complained of by the appellee is merely a disturbance of the comfortable enjoyment of his dwelling by reason of a loud noise; all the rest is opinions and surmise. Powell v. Rawlings, 38 Md. 239; Nicodemus v Nicodemus, 41 Md. 529; 2 Phila. 76; Wood on Nuisances, 151, 484; 57 Pa. St. 289.

Lastly, it seems to the appellants that the appellee put himself in proximity to the nuisance, if a brewery and its requisite machinery can be called such, for in the bill he alleges that when he purchased the premises the brewery was there, but that then it was a quiet, and it would seem, a peaceable brewery.

Isidor Rayner, for the appellee.

The complainant has sworn in his bill that the machine upon the premises of the defendants with its pipes and appurtenances, has not only been erected alongside of his wall, but in direct contact therewith; that when in operation it causes a loud, deafening and jarring noise of extraordinary force and volume all through his house, which has become so offensive and disagreeable to complainant and his family, that if it continues they cannot, with a due regard for their health and comfort, continue to reside in the premises.

Noise is an untangible thing; all that can be done in a case of this sort is to describe it by the results that it produces; and it is settled that noise of itself of such a nature as that described in the bill constitutes such a nuisance, the continuance of which can be restrained by injunction. But in this case, it is not the noise alone which constitutes the cause of complaint. It is the fact that this machine when in operation shakes the walls of the complainant's house; causes a jarring and vibration all through the different rooms; and renders the house not only unfit, but unsafe for occupation. Noise by itself of the kind described in the bill, would entitle the complainant to an injunction; but when this is accompanied by the fact that the defendants, by the use of this machine, are actually shaking the walls of the complainant's house, thus depriving it of its supports, so that it may fall at any moment, rendering the house unfit for habitation, the appellee submits that, under these circumstances, there is no necessity of adducing authorities to show that the complainant is entitled to an injunction. Our courts have said, that the power to interfere by injunction to restrain a party from so using his own property, as to destroy or materially prejudice the rights of his neighbor, and thus to enforce the maxim, sic utere tuo ut alienum non lædas, is not only a well established jurisdiction of the court of chancery, but is one of great utility, and which is constantly exercised. To justify an injunction to restrain an existing or threatened nuisance to a dwelling house, the injury must be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it. Where such is shown to be the case, the power of the court is clear, and it will interpose by injunction. The bill in this case discloses such a wrong, as all the authorities unite in saying, entitles a party to an injunction. To refuse an injunction in a case of this sort would be tantamount to saying that a person could place along the wall of another's house a steam-engine, boiler, force-pumps and machinery; that he could run the pipes and apparatus (which connect the engine with the vessels that are used for brewing beer) along his neighbor's wall; that all through the day he could set this machinery to work; and that although the noise which was caused thereby was of such a nature as to destroy the comfort and impair the health of those who lived in the house; and that although the use of this apparatus shook every wall in the house, and caused a jarring and vibration in every room, so that no one would run the risk of remaining in the premises, that equity cannot afford relief against a nuisance of this sort. Adams v. Michael, 38 Md. 123; Wood on Nuisances, ch. 16, Title: Noise and Vibration; Crump v. Lambert, L. R. 3 Eq. Cas. 409.

Alvey J., delivered the opinion of the court.

The appeal in this case is from an order granting an injunction and, under our practice, it is to be considered on the allegations of the bill alone, irrespective of the answer. If the defendants had desired the benefit of their answer, they should, upon filing it, have moved to dissolve the injunction, and then, on an appeal from the order disposing of that motion, the answer would have been before us for consideration....