Hart v. Wagner

• Court: Maryland Supreme Court
• Writing for the Court: MELBIN, Judge.
• Citation: Hart v. Wagner, 184 Md. 40, 40 A.2d 47 (Md. 1944)
• Decision Date: 08 December 1944
• Docket Number: 40.
• Parties: HART v. WAGNER et ux.

40 A.2d 47

184 Md. 40

HART v. WAGNER et ux.

No. 40.

Court of Appeals of Maryland

December 8, 1944

Appeal from Circuit Court No. 2 of Baltimore City; W. Conwell Smith Judge.

Suit by W. Melbourne Hart against George L. Wagner, Jr., and Caroline F. Wagner, his wife, for an injunction to restrain defendants from maintaining an alleged nuisance affecting the use and enjoyment of plaintiff's residence property. From a decree sustaining defendants' demurrer to the bill without leave to amend, and dismissing the bill, plaintiff appeals.

Cause remanded, without affirmance or reversal, under Code 1939 art. 5, § 42.

W Melbourne Hart, of Baltimore, for appellant.

J. Purdon Wright and W. Frank Every, both of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

MELBIN Judge.

The bill of complaint in this case was filed by the appellant in Circuit Court No. 2 of Baltimore City, seeking an injunction to restrain the appellees from maintaining an alleged nuisance affecting the use and enjoyment of appellant's residence property in Baltimore City. The appellees' demurrer to this bill was sustained by the Chancellor, without leave to amend, and the bill dismissed. The present appeal is from that decree.

The sole question here is, therefore, whether or not the allegations of the bill of complaint are sufficient to entitle the appellant to relief in equity by way of injunction.

These allegations are, in substance, that the appellant is the owner and occupant of property, No. 4302 Roland Avenue, Baltimore City, which he acquired by inheritance from his mother on October 13, 1938; that the respondents (appellees) are the owners and occupants of the property designated as No. 4306 Roland Avenue, which they acquired in 1921; that immediately in the rear of the said properties there is situated an alley, twelve feet in width, and laid out for the use in common with other property owners abutting thereon; that the respondents (appellees) 'habitually burn trash, leaves and other inflammable matter in the aforesaid alley in a careless manner and in violation of law, and leave the dust and ashes caused by the aforesaid fires in the said alley to be blown later by the wind into and upon the property owned and occupied by your orator, and constitute a nuisance;' 'that the aforesaid burning endangers Your Orator's property and depreciates the value thereof by damaging the paint on both the inside and outside of his property by the smoke and the dust and ashes which permeate the air while the burning is in progress, and for days after each unlawful burning, and also furniture and wallpaper and other personal property in the home owned and occupied by Your Orator, as aforesaid.'

There is no affidavit to this bill of complaint, and this is one of the grounds of demurrer relied on by the appellees. The other grounds are the formal ones that the facts alleged fail to constitute a cause of action entitling the complainant to any relief in equity, and also that he has a full, complete and adequate remedy at law. With this demurrer there was filed an answer, under oath, denying all of the material allegations of the bill. The case was disposed of by the Chancellor by sustaining the demurrer and dismissing the bill, without leave to amend, as above stated.

There is no doubt as to the correctness of the ruling on the demurrer. If for no other reason, the bill was demurrable because of its lack of verification. As stated by this Court in Fowble v. Kemp, 92 Md. 630, 639, 48 A. 379, 382: 'The general rule with regard to the verification of a bill of complaint praying for an injunction is thus stated in [Union] Bank v. Poultney, 8 Gill & J. 332, Nusbaum v. Stein, 12 Md. [315], 318 and Mahaney v. Lazier, 16 Md. [69], 73: 'To warrant a court of equity in issuing the injunction, strong prima facie evidence of the facts on which the complainant's equity rests must be presented to the court to induce its action.'' See also Smith v. Shiebeck, 180 Md. 412, 416, 24 A.2d 795.

This rule was further affirmed in Block v. Baltimore, 149 Md. 39, 58, 129 A. 887, in which case, as in the one at bar, a demurrer to the bill of complaint was sustained, without leave to amend, and the bill dismissed. One of the grounds given for this action was that the bill was not sufficiently verified. This applies with equal force in the instant case, for there was no affidavit to the bill or any other form of verification.

The other grounds for the demurrer, however, present more serious difficulties.

The bill of complaint attempts to set up a case for injunction on the basis of a private nuisance by charging, in effect, that the respondents are habitually committing acts which deprive the complainant of the reasonable enjoyment of his own property and cause injury to it. Although facts necessary to support that theory of equity jurisdiction are but meagerly alleged in the bill, the theory itself is unquestionably sound and it is sufficient if the facts be substantially stated. Wesley v. Thomas, 6 Har. & J. 24, 28; Watkins v. Stockett's Adm'r, 6 Har. & J. 435, 445; Timms v. Shannon, 19 Md. 296, 312, 81 Am.Dec. 632. Pleadings in equity are not framed with the same precision and technical exactness as at law, and it has been observed that 'facts are often indirectly alleged or expressed by necessary implication.' Bolgiano v. Cooke, 19 Md. 375; Gayle v. Fattle, 14 Md. 69, 73; Grove v. Rentch, 26 Md. 367. The one pre-requisite is that the bill should state the facts with reasonable clearness and accuracy, so that the defendant may be informed of the nature of the case he is called on to answer. Baltimore & O. R. Co. v. Latimer, 118 Md. 183, 84 A. 377. 'General certainty' in equity pleadings is all that is necessary. Story's Eq. Pl. Sec. 252, 3; Mewshaw v. Mewshaw, 2 Md.Ch. 12. In this connection it is also pointed out in the last cited authority that while there may be cases in which it is quite proper for parties to resort to demurrer, 'this mode of defense is viewed with suspicion and disfavor, as indicative of an unwillingness to meet the plaintiff's case. Story's Eq.Pl. Sec. 454, Note 4.'

In the case at bar the respondents admit, through their demurrer to the bill, that they are habitually burning trash, leaves and other inflammable matter 'in a careless manner and in violation of law' in the alley adjoining the residence of the complainant, endangering and damaging his property and constituting a nuisance. A conspicuous omission from the bill is any allegation as to personal discomfort or injury to health, although it is stated by appellant, both in his brief and in his oral argument on appeal, that the nuisance complained of made living in his home 'almost intolerable because their (appellees') acts deprived them of the comfortable enjoyment thereof.' Whether or not the present averments of the bill and their reasonable implications, if duly proven, are sufficient to invoke the restraining power of a court of equity is the question now before us.

The general principle applicable to this inquiry is well recognized and is thus stated by Judge Alvey in the leading case of Adams v. Michael, 38 Md. 123, 126, 17 Am.Rep. 516: '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 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.' The Court in that case had before it an application for injunction to restrain the threatened erection of a factory in a dwelling house section, which factory, it was alleged, would become a nuisance if allowed to be erected. Although the injunction there was refused it was only because, the court stated, that it was unable to determine from the facts alleged whether the nuisance would have been of the nature and character supposed and would consequently have subjected the complainants to substantial damages. There was no question in that case, as in the one at bar, of repeated or habitually recurring acts constituting the alleged nuisance but it was, rather, a question of a real injury and substantial damages because of the proposed erection of a permanent factory building. The case involved a prospective or threatened nuisance and the court pointed out that 'the general rule is that an injunction will only be granted to restrain an actually existing nuisance.' In that same opinion Judge Alvey quoted with approval the following observations of Lord Romilly, M. R., in the case of Crump v. Lambert, 15 W.R. 417, L.R. 3 Eq. Causes, 409, which enunciate the principle applicable to the case at bar: 'There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapors or water, or any gas or fluid. The owner of one tenement cannot cause or permit to pass over, or flow into, a neighbor's tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighboring tenement or so as to injure his property.' 'The real question in all the cases is the question of fact, vis: whether the annoyance is such as materially to interfere with the ordinary comfort of human existence.' See also Chappell v. Funk, 57 Md. 465; Dittman v. Repp, 50 Md. 516, 33 Am.Rep. 325; Fertilizer Co. v. Spangler, 86 Md. 562, 568, 39 A. 270; Hendrickson v. Standard Oil Company, 126 Md. 577, 585, 95 A. 153; Washington Cleaners & Dyers v. Albrecht, 157 Md. 389, 395, 146 A. 233.

The general rule as to what constitutes a nuisance is thus stated in 20 R.C.L., page...