Fox v. Ewers

• Decision Date: 18 July 1950
• Docket Number: 189.
• Parties: FOX et al. v. EWERS et al.
• Court: Maryland Court of Appeals

75 A.2d 357

195 Md. 650

FOX et al. v. EWERS et al.

No. 189.

Court of Appeals of Maryland.

July 18, 1950

Michael Paul Smith, of Baltimore, and W. Albert Menchine, of Towson, for appellants.

C. Walter Cole, of Towson (Ernest C. Trimble and Allen E. Buzzell, both of Towson, on the brief), for appellees.

Before MARBURY, C J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a decree enjoining defendant from storing asphalt or parking or storing trucks, tractors and trailers on his property, adjoining plaintiffs' dwelling, or from operating trucks, tractors and trailers thereon, such use of defendant's property having been found to cause odors fumes and noises to penetrate plaintiffs' dwelling, causing serious disturbance to the peaceful enjoyment of their property and their personal welfare, and to constitute a nuisance. The case was tried in open court. Nineteen witnesses testified. Judge Gontrum delivered an oral opinion and later signed the decree from which this appeal is taken. In his opinion he indicated an intention to restrict the activities which the decree later prohibited. On further consideration of the nature of the relief he concluded that defendant's 'lot is so small that it would be impossible for the trucks and trailers in question to be parked on the lot without constituting a nuisance to the complainants, and the decree has been worded accordingly.'

Judge Gontrum is evidently familiar with the neighborhood in question. Most of the witnesses are neighborhood witnesses. Without disrespect to the judge, it may be said that the case is a neighborhood case, tried before a neighborhood judge. A judge is not, as a juror once was, a witness. Nevertheless the Supreme Court, on appeals from state courts on constitutional questions, has long shown special deference to the decisions of the state courts because of their familiarity with local conditions. Laurel Hill Cemetery v. City and County of San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515.

In Five Oaks Corporation v. Gathmann, Md., 190 Md. 348, 357, 58 A.2d 656, 661, a nuisance case, we said, 'There is another feature in the case which is quite compelling from our standpoint. This case was heard at length. Many witnesses testified. Their testimony was conflicting. The Chancellor heard them and saw them. He came to the conclusion that the appellees had proved their case. We can find in the record testimony to that effect. Under such circumstances, with nothing but the cold printed type before us, we should not say that the Chancellor was wrong in his conclusion, unless it very clearly appears that a mistake, either of law or of fact, was made. A mistake of fact does not mean that on reading the testimony we might come to a different conclusion from that reached by the Chancellor who saw and heard the witnesses. It means that the evidence clearly does not support the conclusion of fact reached by the Chancellor.' In the instant case we think this feature is at least as compelling as it was in the case quoted.

Recent cases in this court (Meadowbrook Swimming Club v. Albert, 173 Md. 641, 197 A. 146; Five Oaks Corporation v. Gathmann, supra; Green v. Garrett, Md., 63 A.2d 326) leave little room for dispute as to the controlling legal principles on the question of nuisance vel non, which were established many years ago and have been reaffirmed and applied in the recent cases. At the oral argument and in the briefs there was practically no dispute as to legal principles. Differences as to application of these principles are mainly differences, between more and less, which reflect opposing views of the evidence. In the circumstances, we shall adopt Judge Gontrum's opinion and add brief comment on defendant's contentions to the contrary. Judge Gontrum's opinion is as follows: 'The complainants are the owners of a house and lot on Horn Road about 170 feet east of the Belair Road at Perry Hall in Baltimore County. They acquired the property in 1931 and erected a dwelling thereon and have resided there ever since.

'The defendants are the owners of an improved lot on the Belair Road lying between the complainants' property and the Belair Road. The defendants' property was owned by Mr. David Degruchy, grandfather of the defendant, George D. Fox, up until the time of his death in 1939. I might say in passing that everyone of that section of Baltimore County knew Mr. Degruchy, a fine, sturdy, upright character, a real old-fashioned blacksmith who had the respect and confidence of everybody in that community, a man of high intelligence. This property is improved by an old brick building formerly used as a blacksmith shop by Mr. Degruchy and used also, during his life time, for the storage of certain road repairing machinery and a few asphalt distributing tanks and trucks.

'The present business of Mr. Fox is quite a development on the business of his grandfather. It is true old Mr. Degruchy did have some small asphalt business but apparently that was incidental to his blacksmith and wheelwright shop. The cheerful and melodious sound of a blacksmith's hammer on an anvil is far different from that of the explosions and roaring of huge tractor trailer trucks. Mr. Fox has developed a large contracting enterprise and apparently has outgrown his limited quarters on the Belair Road.

'Young Mr. Fox has been successful and has laudably and energetically and ambitiously developed the little business which he established when he purchased this property. He acquired the property in 1939 when his father bought it in for him at auction and conveyed it to his son several years later. Mr. Fox immediately moved in some machinery and road building equipment. In 1944 he possessed two asphalt distributors and acquired other machinery from time to time as his business increased, so that in 1947 the number of distributors had increased to seven.

'The defendant has been parking the trucks, trailers and distributing tanks in the rear of his lot immediately adjoining the property of the complainants. Mr. and Mrs. Ewers state that the starting of the large engines in the tractors make loud, roaring noises when the trucks are started in the morning and that the tractors emit noxious and injurious smoke, fumes and odors; that the trailers contain and it is undisputed, an asphalt or similar mixture which has a pungent, nauseating odor. They state that the asphalt leaks from the trailers resulting in deposits of the asphalt on the ground adjoining their property. There is no denial that there is some leakage from these distributors on to the ground and Mr. Fox states that he has undertaken to cover up the spots where the asphalt has dripped with small stone.

'The complainants state that the conditions existing upon the defendants' property as a result of the smell, odor and noises, and the gnats which they claim have been attracted to the asphalt distributors and the asphalt on the ground seriously affects the peace and quiet and enjoyment of their home; that the noises and the fumes are injurious to their health, and that the value of their property has been depreciated as a result thereof.

'These conditions, the plaintiffs say, are particularly bad in the hot summer months. At that time, they claim that great quantities of gnats are attracted by the operation of the defendants which penetrate the screens of their home and cause them serious inconvenience and annoyance. I might say now, insofar as the gnats are concerned, I am uncertain as to what brings the gnats to that particular locality. It is perfectly possible they breed in the nearby ditch and then are attracted by the heat of the machinery which is stored at the rear end of the lot adjoining the property of Mr. and Mrs. Ewers.

'Mr. Fox frankly admits that his operations have grown but he denies his operations at Perry Hall constitute a nuisance.

'The general principles as to what constitute nuisances in general have been well established in a long series of Maryland cases, and it is unnecessary to review them at length here. 'Nothing is better settled in this State than that the granting or refusing of an injunction rests in the sound discretion of a Court of Equity.'

'In the early case of Adams v. Michael, 38 Md. 123, , the court held 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 laedas,' is not only a well established jurisdiction of the Court of Chancery, but is one of great utility, and which is constantly exercised.'

'In Dittman v. Repp, 50 Md. 516 , the Court said 'The criterion for determining whether a court of equity will interfere and restrain by injunction an existing or threatened nuisance to a party's dwelling is, whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits,...