Susquehanna Fertilizer Co. v. Malone

• Citation: 20 A. 900,73 Md. 268
• Parties: SUSQUEHANNA FERTILIZER CO. v. MALONE.
• Decision Date: 12 December 1890
• Court: Court of Appeals of Maryland

20 A. 900

73 Md. 268

SUSQUEHANNA FERTILIZER CO. v. MALONE.

Court of Appeals of Maryland

December 12, 1890

Appeal from circuit court, Baltimore county.

Action by David Malone against the Susquehanna Fertilizer Company of Baltimore city for damages resulting from the operation of its factory. There was a verdict and judgment for plaintiff and defendant appeals.

Argued before ALVEY, C.J., and IRVING, BRYAN, MCSHERRY, FOWLER, and ROBINSON, JJ.

Charles Marshall and W. L. Marbury, for appellant.

R R. Boarman and D. G. McIntosh, for appellee.

ROBINSON J.

This is an action for a nuisance, and the questions to be considered are questions of more than ordinary interest and importance. At the same time, it does not seem to us that there can be any great difficulty as to the principles by which they are governed. The plaintiff is the owner of five dwelling-houses on Eighth avenue, in Canton, one of the suburbs of Baltimore city. The corner house is occupied and kept by the plaintiff as a kind of hotel or public house, and the other houses are occupied by tenants. On the adjoining lot is a large fertilizer factory, owned and operated by the defendant, from which the plaintiff alleges noxious gases escape, which not only cause great physical discomfort to himself and his tenants, but also cause material injury to the property itself. The evidence on the part of the plaintiff shows that this factory is used by the defendant for the manufacture of sulphuric acid and commercial fertilizers; that noxious gases escape therefrom, and are driven by the wind upon the premises of the plaintiff, and of his tenants; that they are so offensive and noxious as to affect the health of the plaintiff's family, and at times to oblige them to leave the table, and even to abandon the house. It further shows that these gases injure, materially, his property, discolor and injure clothing hung out to dry, slime the glass in the windows, and even corrode the tin spouting on the houses. The evidence on the part of the defendant is in direct conflict with the evidence offered by the plaintiff; but still assuming the facts testified to by plaintiff's witnesses to be true,--and this was a question for the jury,--an actionable injury was done to the plaintiff, for which he was entitled to recover. No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie; and this, too, without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business. Attorney General v. Asylum, L. R. 4 Ch. 147; Pinckney v. Ewens, 4 Law T. (N. S.) 741; Water-Works v. Potter, 7 Hurl. & N. 160; Rylands v. Fletcher, L. R. 3 H. L. 330. As far back as Poynton v. Gill, 2 Rolle, Abr. 140, an action, it was held, would lie for melting lead so near the plaintiff's house as to cause actual injury to his property, even though the business was a lawful one, and one needful to the public, "for the defendant," say the court, "ought to carry on his business in waste places and great commons remote from inclosures so that no damage may happen to the owner of adjoining property." And the doctrine thus laid down has been, to this day, the doctrine of every case in which a similar question has arisen.

We cannot agree with the appellant that the court ought to have directed the jury to find whether the place where this factory was located was a convenient and proper place for the carrying on of the appellant's business, and whether such a use of his property was a reasonable use, and if they should so find the verdict must be for the defendant. It may be convenient to the defendant, and it may be convenient to the public, but, in the eye of the law, no place can be convenient for the carrying on of a business which is a nuisance, and which causes substantial injury to the property of another. Nor can any use of one's own land be said to be a reasonable use, which deprives an adjoining owner of the lawful use and enjoyment of his property. The only case which gives countenance to such a doctrine is Hole v. Barlow, 4 C. B. (N. S.) 334, (decided in 1858,) in which it was held that, if the place where the bricks were burnt was a proper and convenient place for the purpose, the defendant was entitled to a verdict, not withstanding the burning of the bricks may have interfered with the physical comfort of the plaintiff. And it was upon the authority of this case that, in Bamford v. Turnley, 113 E. C. L. 62, where an action was brought for a nuisance arising from the burning of bricks on the defendant's land, near to the plaintiff's house, COCKBURN, C.J., directed the jury that, if they thought that the spot was a convenient and proper one, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict, although the burning of the bricks was an interference with the plaintiff's comfort. This ruling was, however, on appeal to the exchequer chamber, reversed, and, in the opinon delivered by Mr. Justice WILLIAMS, and concurred in by ERLE, C.J., KEATING, J., and WILDE, B., after referring to a passage in Comyn's Digest, on which the decision in Hole v. Barlow was founded, he says: "In Hole v. Barlow, however, the court appear to have read the passage containing a doctrine that a place may be proper and convenient for the carrying on of a trade not-withstanding it is a place where the trade cannot be carried on without causing a nuisance to a neighbor. This is a doctrine which has certainly never been judicially adopted in any case before that of Hole v. Barlow, and, moreover, the adoption of it would be inconsistent with the judgments pronounced in some of the cases cited at the bar...