Northern Cent. Ry. Co. v. Oldenburg & Kelley, Inc.

• Decision Date: 14 January 1914
• Citation: 89 A. 601,122 Md. 236
• Parties: NORTHERN CENT. RY. CO. et al. v. OLDENBURG & KELLEY, Inc.
• Court: Maryland Court of Appeals

89 A. 601

122 Md. 236

NORTHERN CENT. RY. CO. et al. v. OLDENBURG & KELLEY, Inc.

Court of Appeals of Maryland

January 14, 1914

Appeal from Circuit Court, Baltimore County, in Equity; Wm. H Harlan, Judge.

"To be officially reported."

Bill in equity by Oldenburg & Kelley, Incorporated, against the Northern Central Railway Company and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Shirley Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellants.

John Holt Richardson and Thomas G. Hayes, of Baltimore, for appellee.

PATTISON J.

As alleged in its bill, the appellee, plaintiff below, a body corporate, was, on the 23d day of March, 1910, the owner in fee simple and in possession of a large tract of land at Highlandtown, in the Twelfth election district of Baltimore county. On that day the appellee company conveyed a portion of said lot of land to one Samuel C. McFarland, who, on the 2d day of December, 1910, conveyed the same to the appellants, the Northern Central Railway Company and the Philadelphia, Baltimore & Washington Railroad Company, and these companies, together with the Pennsylvania Railroad Company, the other appellant named, constructed thereon a large building known as a roundhouse, which is described in one of the plaintiff's exhibits filed with its bill as the place where the locomotives, after they have made a trip are brought for the purpose of cleaning the grates, tubes, and front end of the boilers, and where, after the boiler has been cleaned, the engine is prepared for a new run by starting a new fire in the engine.

It is alleged by the plaintiff: That it, "at large cost to itself, had improved, before and after the building of said roundhouse and its use as aforesaid, its land by handsome dwelling houses, many of which it leased or rented to sundry persons, and retained the ownership of the other of said houses to itself," and "that continually since the construction and use of said roundhouse by the defendants there has been discharged from the smokestacks of said roundhouse, coming from the locomotives' engines, some 20 in number, smoke and noxious fumes, destructive of plaintiff's grass, vegetable matter, and trees, as well as destructive of parts of said houses of the plaintiff, and cotton fabrics of tenants when exposed to said fumes, and, in addition to the aforesaid injury to property, said noxious fumes affect the health of tenants of plaintiff when exposed to said fumes, causing coughing and inflammation and irritation to the respiratory organs. *** That the effect of said smoke and noxious fumes proceeding from said roundhouse of defendants is to destroy the value of said houses as dwellings, and renders them untenantable, of no value as dwelling houses. That the said public nuisance caused by said smoke and noxious fumes as aforementioned is continuous when the wind blows from a certain quarter, and inflicts on the plaintiff and its tenants the special damages, as aforesaid." That the condition of the atmosphere produced by the said smoke and noxious fumes discharged from the roundhouse of the defendants "render the property, the land improved and unimproved, of the plaintiff adjacent to said roundhouse valueless, untenantable, and without market value."

It is also alleged by the plaintiff that, "in addition to the continuing nuisances" aforesaid, "the defendants caused, since the construction of said roundhouse, continually to flow upon the said land of the plaintiff, from its roundhouse, a stream of hot water, which has made a deep ditch or ravine in said land of the plaintiff, and, by undermining the support of the bridge of the said land of the plaintiff, has washed away said bridge."

To correct the alleged wrongs complained of, the plaintiff filed its bill, alleging therein, in substance, the facts as we have stated them, and with it filed eight exhibits. The first, second, third, and fourth are copies of deeds by which the plaintiff acquired title to the entire tract of land owned by it. The fifth is a copy of a deed from the plaintiff to McFarland conveying unto him that portion of the entire tract which is now owned by the defendants. The sixth is a copy of deed from McFarland to the defendants conveying said land unto them. The seventh is a plat showing the location of the lands, both of the plaintiff and defendants, mentioned in these proceedings, which the reporter is asked to insert in his report of this case. It will be seen by the plat that the land owned by the plaintiff, both before and since the acquisition by the defendants of the lot upon which the roundhouse is located, was, and is, very nearly surrounded by the lands owned by several different railroad companies operating their roads in that vicinity. The eighth is a report to the plaintiff by Penniman & Browne, chemists, of examinations or tests made by them of the atmosphere, the first in their laboratory, 215 E. Fayette street, Baltimore city, and the others, six in all, made at different times and places upon said lands of the plaintiff and the nearby lands of others.

It was shown by the analysis so made by said chemists upon the property of the plaintiff and others near or adjacent to the roundhouse that the atmosphere at such times and places was largely impregnated with sulphuric acid, varying in amount at different times and places as a result of the varying conditions of the wind and weather; and it was found by said tests that the quantity of sulphuric acid in the atmosphere at or near the roundhouse was much greater than in the atmosphere of the laboratory, and this difference of quantity is ascribed by the chemists as due to the conditions produced by the fumes and smoke, etc., from the roundhouse. As the chemists state in their report, in order to make the result of their tests or examinations "readily comparable," they adopted as the unit of measurement the amount of sulphur dioxide present in 374 cubic feet, the amount of air used or consumed by one person for respiration in 24 hours. Their first experiment, made in their laboratory on October 22, 1913, showed the presence of .024 grain of sulphur dioxide per 374 cubic feet. The second experiment, made on the 28th and 29th of the same month, at a house of the plaintiff situated to the southwest of and approximately 200 yards from the roundhouse, with the wind blowing from the roundhouse towards the apparatus for one hour and a quarter, showed the amount of sulphur dioxide present in the atmosphere at such point, for such time, to be 75 times the usual amount, and for the whole 24 hours, including the hour and a quarter we have mentioned, the result showed a presence of .117 grain of sulphur dioxide per 374 cubic feet. The third experiment was made at Mr. Funk's house at the corner of Philadelphia Road and Eleventh street, directly north of the power house of the Pennsylvania Railroad Company; the wind was blowing from the northeast, and later blew from the east. The result showed .049 grain of sulphur dioxide per 374 cubic feet, twice the usual amount. Experiment 4 was made at No. 138 Tenth street. The wind was blowing from the northeast, but soon changed to the southeast. The result showed the presence of .043 grain of sulphur dioxide per 374 cubic feet, nearly twice the usual amount. Experiment 5 was made from a movable shed erected of shutters, placed on the property of the plaintiff, southeast of and 125 yards from the roundhouse. The wind was variable, but was not generally blowing from the roundhouse towards the shed. The result showed the presence of 1.882 grains of sulphur dioxide, an increase of 75 times over the usual conditions. The sixth experiment was lost on account of high winds overturning the apparatus. The seventh experiment was made from a shed erected 100 yards east of the roundhouse; the wind blowing from the roundhouse over the shed for the greater length of time, but not invariably so. The test started at 6 p. m., and finished about 4:15 p. m. the next day. The amount of sulphur dioxide was 21.098 grains per 374 cubic feet, showing an increase of 878 times over the usual conditions. Sulphur dioxide acted on by the oxygen in the air forms sulphuric acid.

The report of the chemists states that the effect of diluted sulphuric acid upon iron, tin, copper, and zinc is to corrode them, and that it weakens and finally destroys paint films, and that its action is particularly marked upon cotton and linen fabrics, and not so marked upon wool. It also states that its effect upon persons inhaling air containing considerable quantities of it is irritating, and that such irritating effect must undoubtedly in some cases result not only in serious inconvenience but positive danger to health.

The report further adds that in the condition of affairs prevailing (in this case), where the sulphur dioxide is accompanied by a large number of fumes and gases, the effect of sulphur dioxide is multiplied many fold. "This includes, it must be remembered, dust, soot, carbon dioxide, carbon monoxide, and coal gas." The report then states that "it is a matter of common knowledge that the air of cities must be and is contaminated to a greater or less extent, and that such contamination is of the same general kind as proceeds from the roundhouse of the Pennsylvania Railroad Company must also be recognized. That other contaminations, some of which may be of a more serious nature, sometimes occur is also true."

The bill then prays, first, that a mandatory injunction be issued "requiring the defendants to abate the nuisance of said roundhouse and its running of said water over the...