King v. Hamill

• Decision Date: 02 April 1903
• Citation: 54 A. 625,97 Md. 103
• Parties: KING v. HAMILL.
• Court: Maryland Court of Appeals

54 A. 625

97 Md. 103

KING v. HAMILL.

Court of Appeals of Maryland

April 2, 1903

Appeal from Circuit Court, Garrett County; Ferdinand Williams Judge.

Suit by Mary L. King against Moses R. Hamill. From a decree in favor of defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Thomas J. Peddicord, for appellant.

Edward H. Sincell and Norman S. Heindel, for appellee.

BOYD J.

The appellant filed a bill in equity against the appellee praying that an injunction be issued, restraining him from building a stable on the line of Center street, in the town of Oakland, or within 20 feet thereof. The bill alleges that, under and by virtue of its charter, that municipal corporation had enacted certain ordinances to prevent nuisances in the town, and that among those so enacted and now in force is section 14, c. 10, tit. "Nuisances," which prohibits the erection of "any privy, hog pen or stable, or other enclosures designed for the keeping, confinement or stabling of any horses, cattle, swine, sheep, goats or other animal or animals producing offensive smells within twenty feet of any street of said town, under a penalty" therein named; that the appellant owned a dwelling house which is located on a lot fronting on Center street, which is one of the public streets of the town, in which she and her family live. It is further alleged that the appellee owns a lot on the opposite side of Center street, directly in front of the plaintiff's house, upon which he "has commenced and is now erecting a stable designed for the keeping and confinement or stabling of horses and cattle, or other animals which produce offensive smells," and that the said stable is being built on Center street, instead of 20 feet therefrom, as required by said ordinance. It also charges "that the building of said stable on the line of said street is a violation of law, and, if it should be completed, will be a nuisance, and the offensive smells arising therefrom will render the plaintiff's house almost uninhabitable, and will cause irreparable injury to the plaintiff's said house and home." It states that the plaintiff makes the complaint as a citizen and taxpayer, as well as in her individual right as a property owner. A preliminary injunction was granted. The defendant filed an answer to the bill, in which he denied that the ordinance was validly passed, alleging that the mayor and town council of Oakland did not have the authority to pass an ordinance in 1892, when this was enacted, regulating the location of stables within the limits of the town, and that their action in the premises was absolutely null and void. He admits that he has commenced the erection of a stable on his lot, in which he proposes to keep a horse, but denies that he is doing so in violation of law, or that the horse to be kept in said stable will produce offensive smells. The answer also denies that the stable, when completed, will become a nuisance, or that the odors will render plaintiff's house almost uninhabitable, or cause irreparable injury to her house and home. It alleges that he obtained permission from the mayor and town council of Oakland to build the stable, and he filed a written permit. The case was submitted to the court below "for final decision and determination" upon an agreed statement of facts, and, after hearing, a decree was passed dissolving the injunction and dismissing the bill. From that decree this appeal was taken.

It was agreed that the town had enacted certain ordinances, and, among others, section 14 of chapter 15 (referred to in the bill as chapter 10), which were codified in 1892. It was admitted that the ordinance and penalty have not been amended or repealed, but remain as they were enacted and codified. Center street is 50 feet wide. Mrs. King's house is 18 feet and 5 inches from the street, and the stable was being built on the building line of Center street, on Mr. Hamill's lot, 68 feet and 5 inches from Mrs. King's residence, and closer to Mr. Hamill's own dwelling. Among other things, the agreed statement says "that the said Hamill was building said stable at the time he was enjoined in this case; that it was his purpose to keep but one horse in said stable, when completed, and that no offensive smells would arise from said stable, except such as naturally arise from a horse stable in which a horse is kept; and that said stable would only be a nuisance, if at all, in so far as it is declared to be a nuisance by said ordinances of the town, providing the court finds said ordinance to be a valid and legal ordinance."

It is not necessary to cite authorities outside of this state to show that a stable is not per se a nuisance. In Met Savings Bank v. Manion, 87 Md. 68, 39 A. 90, this court so declared in reference to a livery stable. On page 81, 87 Md., and on page 92, 39 Atl., it was said: "The authorities which hold that a livery stable in a city is not per se a nuisance are so numerous that it would serve no useful purpose to repeat them. It may, however, be taken as a concession that such is the well-established rule of law, about which no controversy can be reasonably expected to arise. And whilst this is unquestionably true, it is equally clear that a stable, whether used for livery purposes or...