Woodyear v. Schaefer

• Decision Date: 30 June 1881
• Citation: 57 Md. 1
• Parties: WILLIAM E. WOODYEAR v. HENRY SCHAEFER.
• Court: Maryland Court of Appeals

57 Md. 1

WILLIAM E. WOODYEAR v. HENRY SCHAEFER.

Court of Appeals of Maryland

June 30, 1881

APPEAL from the Circuit Court for Baltimore County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., ALVEY, IRVING and MAGRUDER, J.

Sebastian Brown and I. Nevett Steele, for the appellant.

Even assuming that the nuisance complained of in this case is a public and not a private one, the complainant is entitled to an injunction. Hamilton vs. Whitridge, 11 Md., 128, 135, 146, 147; Adams vs. Michael, 38 Md., 123; Dittman vs. Repp, 50 Md., 516.

The degree and extent of the nuisance is cause not alone by the defendant, but by the combined acts of himself and a hundred other butchers, together with brewers, hair manufacturers and soap boilers, who permit their refuse matter to float into Gwynn's Run and Gwynn's Falls, and from thence into complainant's race. Each and every one is liable to a separate action and can be separately restrained; and it is no excuse that other butchers had for many years been guilty of a similar nuisance. Snow vs. Williams, 16 Hun., (N. Y.,) 468; Chipman vs Palmer, 16 N.Y. St., 517; Wood on Nuisances, p. 697, &c., secs. 681, 683-4-5-6 and 689, pp. 714, 715; Wright vs Moore, 38 Ala., 593; Conservators of River Thames vs. Mayor of Kingston, 12 L. T. N S., 668-9; 4 Robertson, 469, 470; 2 Ch. App., 478.

All unlawful acts which deprive a man of the reasonable and comfortable enjoyment of his property constitutes a nuisance. Walter vs. Selfe, 4 Eng. L. & E., 22-3.

Slaughter-houses are prima facie nuisances. Wood, secs. 498-9; Catlin vs. Valentine, 9 Paige Ch., N. Y., 575.

If slaughter-houses are built outside of a city, still when reached by the line of improvements they must give way, and the fact of prior user is no defence. Brady vs. Weeks, 3 Barb., N. Y., S. C., 156; Rex vs. Cross, &c., 2 C. & P., 483-6; Wood, secs. 504 to 512.

Blood running from a slaughter-house into a stream constitutes a nuisance which a Court of equity will abate. Attorney-General vs. Stewart & Taylor, 5 C. E. Green, N. J. Ch., 417; Commonwealth vs. Upton, 6 Gray, 473; Holsman vs. Bleaching Co., 1 McCarter, N. J., 338.

H. P. Jordan and R. J. Gittings, for the appellee.

If the facts alleged be true, the remedy is by indictment for a nuisance. If complainant has suffered special and peculiar damage, beyond and different from that which affects the public at large, he has his remedy by action at common law. Houck vs. Wachter, 34 Md., 265; Fort vs. Groves, 29 Md., 188.

To justify a resort to a Court of equity, the damage must be irreparable, and such as could not be adequately compensated by an action at law. An injunction in nuisance cases is granted, "only in cases where the fact is clearly made out upon determinate and satisfactory evidence. For if the evidence be conflicting, and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interposition." 2 Story Eq. Jur., (12 th Ed.,) secs. 924, 925, and notes; Attorney-General vs. Cleaver, 18 Vesey, 211; Coe vs. Winnipisiogee Man. Co., 37 N. H., 254; Fort vs. Groves, 29 Md., 188; Adams vs. Michael, 38 Md., 123: Earl of Ripon vs. Hobart, 3 Mylne & Keene, 169; Houck vs. Wachter, 34 Md., 273.

In considering this case, the Court must regard only the damage resulting to complainant from respondent's slaughter-house, not the damage from other slaughter-houses or other causes. If complainant had sued respondent at law, he could only recover for that portion of his injury, if any, which he could trace to respondent and his slaughter-house. Chipman vs. Palmer, 16 N. Y., (Sup. Ct.,) 517.

In determining the question of nuisance, the Court must look to the locality and all the surrounding circumstances. A tallow chandler setting up his business among other tallow chandlers, and increasing the noxious smells of the neighborhood, is not guilty of creating a nuisance unless the annoyance is much increased by the new factory. Rex vs. Bartholomew Reville, Peakes' Cases, 91; Dittman & Berger vs. Repp, 50 Md., 516.

The long silence and acquiescence of complainant, and delay in making his complaint, are of themselves sufficient reason for refusing an injunction. B. & O. R. R. Co. vs. Strauss, 37 Md., 237; Attorney-General vs. Gee, 10 L. R. Eq., 131.

MAGRUDER J., delivered the opinion of the Court.

The bill was filed by the appellant to obtain an injunction to restrain a nuisance.

The appellant has been since 1853 the owner and proprietor of a large flour mill, in Baltimore City, on Gwynn's Falls, below its junction with a small stream called Gwynn's Run. Before the purchase of the mill, he had operated it from about 1849, and a mill on that site had been operated for over fifty years.

The appellee (the defendant below) is a butcher, having a slaughter-house on Gwynn's Run in Baltimore County, about a mile above the mill.

The complaint is that the appellee for several years past, and up to the time of filing the bill, has emptied, and still continues to empty or allows to flow into the said run, the blood from slaughtered animals, and also continuously discharges from his slaughter-house into the run, the entrails and other offal from slaughtered animals, and that this blood and offal, naturally and necessarily by the flow of the stream, makes its way into the appellant's mill dam, and from that into the mill race, whereby the water in the race and its banks are mixed with and covered by said animal matter, causing and creating a nuisance, the said matter decomposing and creating an offensive smell, at times unbearable; the atmosphere filled with the stench is not only disagreeable and uncomfortable to health, but it causes and tends to create disease; that this animal deposit becomes greater each year; that the run from the slaughter-house to the dam is little better than a cesspool; that as the deposit increases the stench increases; that until within two years, the appellant and his hands and operatives only suffered inconvenience and discomfort but now especially in the hot days of summer, the stench has made most of the operatives sick, even making the hands so sick as be to unable to retain their food, compelling them at times to quit the premises, whereby the mill has to be stopped, and to obtain an atmosphere that can be even endured, the flow of water to the mill has to be stopped, and the contents of the dam emptied into the falls; that the operatives complain of the discomforts connected with their employment, and that unless the nuisance shall be abated, it is only a question of time when the operations of the mill shall be compelled to cease; that the acts complained of are a nuisance, prejudice and lessen the value of the mill, and deprive the owner of the comfortable and reasonable enjoyment of it, and that he is without adequate remedy at law, and can only have full relief in equity, and an injunction is prayed restraining the appellee, his agents, employees and servants from emptying, depositing, discharging, or allowing to flow into Gwynn's Run, from his premises any blood, entrails, or offal from slaughtered animals.

The answer does not deny the condition of the stream as charged, nor the effects produced thereby, but denies that any offensive matter is thrown in the stream by the appellee, that the only matter allowed to flow into the stream from his premises, is beef's blood, in quantities not exceeding fifteen buckets full, upon an average, per week, which blood cannot be seen or detected in the waters of the said run over one hundred yards below the slaughter-house, and cannot cause any offensive deposit, or otherwise create a nuisance or injure the appellant; that if any cause of complaint exists, the appellant is himself responsible for it by damming up the stream, which if allowed to flow unobstructed would be free from cause of complaint, and by allowing vegetable matter to accumulate and decompose in the dam and race, and by not using proper appliances to keep out offensive matter; that on Gwynn's Falls and the run there are a large number of slaughter-houses and other establishments, which (some for over thirty years, and nearly all for over twenty years,) have used these streams as sewer-ways, and that the blood from all these slaughter-houses, and the refuse from breweries, soap and other factories, have flowed into these streams, for all this period of time, without complaint; and that there are cattle scales over and adjoining the run, in which are kept large numbers of swine, from which large quantities of filth and refuse matter are washed and thrown into the run and carried down with the current; that the appellant's remedy is at law and not in equity; and that to grant him the relief prayed would be ruinous to a vast amount of property owned by butchers and others, and destructive to one of the most important branches of trade in the State, besides working a most grievous wrong to the appellee.

A vast mass of testimony was taken, which although somewhat conflicting as to the point whether any solid matter was thrown from the appellee's premises into the stream, yet establishes the offensive condition of the water of the run and in the mill dam and race quite as fully as the bill charges, and shows the condition of the air at the mill to be at times so offensive as to be practically unbearable, although at the same time showing other causes, besides the slaughter-house of the appellee, for the existence of the nuisance, there being a large number of slaughter-houses on the falls and run, besides breweries, soap and other factories, and the cattle scales, with the occasional addition of dead animals, and offal, and other offensive matter...