Jackson v. Shawinigan Electro Products Co.
| Decision Date | 16 January 1918 |
| Docket Number | 90. |
| Citation | 103 A. 453,132 Md. 128 |
| Parties | JACKSON v. SHAWINIGAN ELECTRO PRODUCTS CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County, in Equity; Allan McLane, Judge.
Action by Howard M. Jackson against the Shawinigan Electro Products Company. From an adverse judgment, plaintiff appeals. Reversed, and new trial awarded.
Argued before BOYD, C.J., and BURKE, URNER, STOCKBRIDGE, and CONSTABLE, JJ.
Joseph N. Ulman and Clarence A. Tucker, both of Baltimore (Lee I Hecht, of Baltimore, W. Gill Smith, of Towson, and Knapp Ulman & Tucker, of Baltimore, on the brief), for appellant.
Robert R. Carman, of Baltimore, and T. Scott Offutt, of Towson (Keech, Wright & Lord, of Baltimore, on the brief), for appellee.
The appellant sued the appellee for damages alleged to have been sustained by him from the operation of a manufacturing plant in the Twelfth district of Baltimore county, known as a ferro silicon plant for the manufacture of ferro silicon and other products. There are two counts in the declaration. The first after referring to the ownership of three properties by the plaintiff, alleges that subsequent to his acquisition of them, to wit, in 1915, the defendant erected the plant immediately adjoining two of his properties and near the third, and that since its erection the defendant has operated it continuously day and night; that there are discharged from it large clouds of offensive and unwholesome vapors, noxious fumes and gases, and disagreeable soot and smoke, dust, and other matter upon the plaintiff's properties; that it also causes a large amount of noise and vibration, and that said offensive and unwholesome vapors, etc., are very injurious to health, as well as offensive to persons of ordinary sensibilities; that said properties were well adapted to improvement for dwelling houses and prior to the erection of the plant land in the immediate vicinity, some of which was also owned by plaintiff, was used for such purposes. It is then alleged that by reason of the offensive and unwholesome vapors and foul and disagreeable odors, noxious fumes and gases, soot, smoke, dust, etc., "it is practically impossible for the plaintiff to develop his said properties for dwelling house purposes and the same are rendered far less desirable for dwelling or other building purposes than they would otherwise be, and the plaintiff is deprived of the profits and advantage that would reasonably inure to him from the development and improvement of his said properties, and the value thereof is seriously impaired, to his great loss and damage." The second count is the same, excepting the nuisance complained of is in reference to a glaring light of great intensity, etc.
After this suit was brought, an agreement was entered into between the parties by which it was agreed that in the trial of the case the plaintiff was to be treated as the owner in fee of all the properties, and that the case should be tried on the theory of a permanent nuisance, and all evidence which either party desired to produce, which is proper and applicable to a suit involving damages arising out of the erection or maintenance of a permanent nuisance, may be introduced. There are 37 bills of exception relating to the admissibility of evidence, and one to the ruling on the prayers. The court granted two prayers at the conclusion of the plaintiff's testimony; the first that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings of the first count, and the second being the same, except it was applicable to the second count. From a judgment on the verdict rendered in accordance with those prayers, this appeal was taken.
There can be no doubt that there was legally sufficient evidence of such conditions as would amount to a nuisance if the property of the appellant was improved, but the appellee contends that the evidence does not show actual physical discomfort or a tangible visible injury to the property, it being unimproved, and hence it claims that there can be no recovery. There are authorities which have announced the rule in such terms as give some ground for that contention, but when they are applied to such conditions as are alleged to exist in this case, there can be no difficulty about them. The attorneys for the appellee quoted from sections 511 and 640 of Wood on Nuisances at some length, but the next paragraph of section 511 concludes as follows:
"Where there are no buildings upon the premises, but the land is laid out into building lots, which by reason of the nuisance are reduced in value, a recovery may be had for the difference between the value of the lots with the nuisance there and their value if no nuisance existed."
In the note are cited Peck v. Elder, 3 Sandf. (N. Y. Sup. Ct.) 126, and Dana v. Valentine, 5 Metc. (Mass.) 8. If that was not so, great injustice would be done owners of vacant land who had begun or intended to develop it. Of course the fact of the properties of the plaintiffs being improved is of importance in nuisance cases, as when are improved the plaintiffs can recover certain damages which they cannot recover when unimproved, but why a defendant should be made liable to A. who has a house on his lot, but not to B., whose lot is unimproved, if the nuisance in fact lessens the value of B.'s lot, or prevents him from selling it, is not easy to reconcile with the general principle of law that holds the owner of property responsible for so using his property that he injures others.
The plaintiff bought a tract of land in 1910, which was between Baltimore street and Orleans street, on the westerly side of Eighth street. He built 27 houses between Fairmont avenue and Fayette street, which fronted on Eighth street, and has sold all of them. He still owns the rest of the property fronting on Eighth street, some of which is on the northerly and the remainder on the southerly side of the houses he built. He also has a strip back of the houses he sold and a lot on Baltimore street near Eighth. None of the property still owned by him has been improved, but it would be remarkable if he was prevented from recovering merely because he has sold the improved part, and we do not understand that to be the law of this state. In Baltimore v. Fairfield Im. Co., 87 Md. 352, 39 A. 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344, the city was enjoined from placing and keeping on a 20-acre tract of land by it a woman afflicted with leprosy. That tract adjoined the property of the Fairfield Improvement Company, which had been laid off in building lots. Many of the lots had been sold, and quite a number of houses had been built in the vicinity of the city's land. If the improvement company still had any improved property it does not so appear in the record, and was not relied on in the case, but in the bill it was alleged that it still owned the lots which had not been sold. There is nothing in the opinion to indicate that any distinction was made between improved and unimproved property as the ground for relief. It was said by Chief Judge McSherry:
"The record abundantly shows that the Fairfield Improvement Company's property will be seriously lessened in value-that residents of the vicinity will abandon their homes-if this unfortunate and afflicted woman should be placed where the city proposes to confine her."
In Belt R. R. Co. v. Sattler, 100 Md. 306, 59 A. 654, the plaintiff owned two lots of ground; one fronting 100 feet and the other 50 feet on Charles street. There was a house and lot between those two lots which the plaintiff lived in, but did not own, and the suit was for injury done to the two vacant lots. They were used as a garden and lawn, and contained shade trees, walks, fruit trees, flowers, etc. Judge Fowler, in the course of the opinion, after referring to Garrett's Case, 79 Md. 277, 29 A. 830, 24 L. R. A. 396, Reaney's Case, 42 Md. 117, and Webster's Case, 81 Md. 329, 32 A. 319, said:
It was proven in that case that in the operation of the railroad smoke and gases were drawn out of two tunnels, between which there was an open cut which plaintiff's property adjoined, and the plaintiff was also subjected to an unusual degree of vibration. It was held that he was entitled to recover damages for the consequential injuries so occasioned, and that testimony of witnesses who were acquainted with the property and had observed the effects of the alleged tort was admissible to prove the fact that the smoke, vapors, and vibrations caused a diminution in the value of the plaintiff's property. Not only damages to the trees, flowers, etc., were allowed, but damages for the reduced value of the land. That will be more clearly seen by reference to the case between the same parties in Baltimore Belt R. Co. v. Sattler, 102 Md. 595, 62 A. 1125, 64 A. 507, being the second appeal to this court. Judge Burke, in speaking of the damages, said:
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