Rogers, J. Paul

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Right of Property Owners to Enjoin a Mixed Nuisance - Bishop Processing Co. v. Davis

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Maryland Law ReviewVolume 18 | Issue 1 Article 6Right of Property Owners to Enjoin a MixedNuisance - Bishop Processing Co. v. DavisJ. Paul RogersFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Property Law and Real Estate CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationJ. P. Rogers, Right of Property Owners to Enjoin a Mixed Nuisance - Bishop Processing Co. v. Davis, 18 Md. L. Rev. 46 (1958)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol18/iss1/6Comments and CasenotesRight Of Property Owners To EnjoinA Mixed NuisanceBishop Processing Co. v. Davis'Defendant-appellant operates a plant in which it con-verts such materials as chicken feathers, offal, viscera, beefbones, etc., into fertilizer and poultry feed. The plant islocated in a rural district, with three villages situated with-in a mile of the plant. Odors caused by the processing ofthese materials permeated the atmosphere surrounding theproperty of the plaintiffs-appellees, neighboring land-owners situated at distances ranging from one-half to onemile from the site of the plant. So noxious were the odorsthat they produced nausea and sickness, preventing theenjoyment by plaintiffs of their properties and lesseningthe market value thereof. Honest efforts had been madeby the defendant to control the escape of these odors, butall were unsuccessful, at least to within a very few daysof the trial.Suit was brought to enjoin the defendant from main-taining and operating its plant on the basis that the sameconstituted a nuisance. A decree was granted permanentlyenjoining defendant from so using its property as to resultin the escape of offensive gases and odors which wouldaffect plaintiffs in the rightful use and enjoyment of theirproperties. The case was affirmed on appeal.The court found that whether defendant's conduct con-stituted a public or a private nuisance, plaintiffs, beingpersons of ordinary tastes, sensibilities and habits,2 hadshown sufficient discomfort to themselves, and injury totheir dwellings, materially diminishing their value,' to en-title them to relief.The injunction was issued on the ground that materialinjury had been done to the plaintiffs' property, which les-sened its value and rendered the enjoyment of it less com-fortable. This view of the law is not new to Maryland1213 Md. 465, 132 A. 2d 445 (1957).2 Ibid, 474.8 Ibid.BISHOP PROCESSING CO. v. DAVIScases, 4 and a very good statement of it is found in the recentcase of Feldstein v. Kammauf,5 where it is said:"'The rule which must control is whether the nuis-ance complained of will or does produce such a condi-tion of things as in the judgment of reasonable men isnaturally productive of actual physical discomfort topersons of ordinary sensibilities, tastes, and habits,such as in view of the circumstances of the case is un-reasonable and in derogation of the rights of theparty... subject to the qualification that it is not everyinconvenience that will call forth the restraining powerof a court. The injury must be of such a character asto diminish materially the value of the property as adwelling and seriously interfere with the ordinary com-fort and enjoyment of it'."Aside from the injury to property it is also important, indetermining whether or not a given set of facts constitutessuch a nuisance as will be restrained, to bear in mind thelocality of the acts complained of. An act which takes placein a densely populated industrial city may not constitute anuisance whereas the same act taking place in a rural dis-trict may be of an enjoinable nature.' "It must be borne inmind,... that living in a city entails the endurance of cer-tain inconveniences and discomforts, and those who haveestablished their residences there cannot expect to have thequiet and peace of the countryside."Nuisances are either public or private depending uponthe interests invaded; a public nuisance is an invasion ofrights of the public in general, while a private nuisance isan invasion of individual rights.8 A nuisance which is pub-lic, but which at the same time injures the property ofprivate individuals, has been termed a mixed nuisance,' Feldstein v. Kammauf, 209 Md. 479, 121 A. 2d 716 (1956), noted 17 Md.L. Rev. 345 (1957) ; N. C. Ry. Co. v. Oldenburg & Kelley, 122 Md. 236, 89 A.601 (1914); Washington Cleaners v. Albrecht, 157 Md. 389, 146 A. 233(1929) ; Swimming Club v. Albert, 173 Md. 641, 197 A. 146 (1938); FiveOaks Corp. v. Gathmann, 190 Md. 348, 58 A. 2d 656 (1948) ; Fox v. Ewers,195 Md. 650, 75 A. 2d 357 (1950) and Dittman v. Repp, 50 Md. 516 (1879).Ibid, 484, quoting from Swimming Club v. Albert.Washington Cleaners v. Albrecht, supra, n. 4, 395.7 Green v. Garrett, 192 Md. 52, 64, 63 A. 2d 326 (1949), where the Courtrefused to enjoin use of municipal stadium for professional baseball, butdid order correction of particular practices. See also Washington Cleanersv. Albrecht, ibid; Adams v. Michael, 38 Md. 123 (1873) ; Horner v. State,49 Md. 277 (1878). However, once the act complained of is determined tobe a nuisance, its location cannot prevent the bringing of an action; seeEuler v. Sullivan, 75 Md. 616, 23 A. 845 (1892) ; Susquehanna Fertz. Co. v.Malone, 73 Md. 268, 20 A. 900 (1890).'PRossER, TORTS (2nd ed. 1955), §70, 391.19581MARYLAND LAW REVIEW [VOL. XVIIIthat is, it is both public and private in character.' Althoughthe principal case is the first in Maryland in which a nuis-ance has actually been termed "mixed", from very earlytimes an individual could maintain an action to abate apublic nuisance which caused substantial injury to hisproperty.10 It would seem that calling such a nuisance"mixed" is just another way of saying that an individualmay have his action to abate a public nuisance from whichhe has sustained special damage," or that private interestsin the affected community have been materially damaged.12A discussion of some Maryland cases will help to illustratethe development of the law on this subject.In the case of Adams v. Michael,18 where an injunctionwas sought to prevent the erection of a factory which wouldallegedly pollute the air, it was recognized that the ownerof a dwelling house has the right to pure and wholesomeair - "as pure and wholesome as their local situation canreasonably supply".A much later case, Block v. Baltimore,'4 dealt with whatthe court termed a nuisance partly public and partly priv-ate. It arose out of the transportation of garbage by Balti-more City to a reduction plant in Anne Arundel Countywhere it was processed. Forty-four neighboring tenantsand landowers living from 200 yards to several miles fromthe plant brought suit for an injunction complaining of,inter alia, odors so bad "that it is impossible for any per-son possessed of ordinary sensibilities, tastes, habits andrefinement to live in a radius of three to five miles of thereduction company's plant without actual physical discom-fort and inconvenience". 5 The bill was dismissed withprejudice for being multifarious, but on appeal it was heldthat the dismissal should have been without prejudice sincethe plaintiffs were entitled to relief from, among otherthings, the dissemination of disagreeable odors, gases andstenches,:66 C. J. S. 730, Nuisances, §2; 8upra, n. 1, 472.'*Hamilton v. Whitridge, 11 Md. 128, 146 (1857) ; Harrison v. Sterett,4 H. & McH. 540 (Md. 1774), in a suit for damages."See Euler v. Sullivan, 8upra, n. 7; Block v. Baltimore, 149 Md. 39, 129A. 887 (1925) ; Washington Cleaners v. Albrecht, 8upra, n. 4; Cityco RealtyCo. v. Annapolis, 159 Md. 148, 150 A. 273 (1930).n Supra, n. 1, 474. For a case involving a public nuisance where the plain-tiff failed to show damages different in kind from that suffered by thegeneral public, see Smedberg v. Moxie Dam Co., 148 Me. 302, 92 A. 2d 606(1952), where defendant's activities harmed fishing in a great pond.138 Md. 123, 126 (1873).,Supra, n. 11.Ibid, 47.BISHOP PROCESSING CO. v. DAVIS"The mere fact that a nuisance injures one hundredinstead of one, does not prevent it from being a privatenuisance, . . . but the test is whether the damage ofwhich the appellants complain is different in kind fromthat suffered by the general public, and in our opinionit cannot be said that conditions which prevent indi-viduals from eating, sleeping or living in comfort intheir own homes, and which substantially lessen thevalue of their properties, do not affect them differentlyfrom the general public."16Very similar to the noxious vapors aspect of the preced-ing case, was the case of Washington Cleaners v. Albrecht,7where the Court of Appeals affirmed a decree enjoiningthe appellant from using gasoline or varnalene in its busi-ness in such quantity as to be deleterious to the health ofthe neighborhood. The suit was brought by residents of aneighborhood into which the appellant had moved its clean-ing establishment. The allegations complained of fumeswhich caused severe headaches, affected the taste of foodand destroyed property value.It seems probable that in any of the foregoing cases itwould have been appropriate for a public officer to proceedin the interest of the whole community. In Homer v. State 8the appellant had been convicted of maintaining a publicnuisance on facts nearly identical with those of the prin-cipal case. To appellant's argument that the indictment wasinsufficient for failure to aver that the offending installa-tion was near "a public road or highway", the court replied,among other things, "[a]nd it fully appears from theprecedents, that the allegation that the nuisance ex-isted to the dwellings of divers citizens or inhabitants, issufficient."19An activity, then, which is inappropriate in view of thecharacter of the neighborhood, and which threatens thehealth or comfort of the community may be enjoined at theinstance of the proper public officials. If in addition theactivity causes special damage to individual members of thecommunity, relief may also be sought by the private in-terests thus affected.J. PAUL ROGERs1 Ibid, 55, 56. See also Hamilton v. Whitridge, supra, n. 10; Woodyear v.Schaefer, 57 Md. 1, 10 (1881).17157 Md. 389, 146 A. 233 (1929).'849 Md. 277 (1878). This case contains, circa, p. 284, an excellent dis-cussion of what constitutes a public nuisance.10 Ibid, 287.19581

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