95 A. 153 | Md. | 1915
The bill of complaint in this case alleges in the first and second paragraphs that the plaintiff is the owner of leasehold estates in five lots of ground in Canton, Baltimore County, improved with buildings of which four have heretofore been occupied as residences and one has been used both as a saloon and dwelling. It is alleged in the third paragraph of the bill that the defendant, a corporation engaged in the manufacture, sale and shipment of kerosene, gasoline, crude oil and the various products of petroleum *579 and other mineral oil, laid and maintains certain pipe lines, for the conveyance of oil, in the street abutting upon the plaintiff's property, and that the lines are so constructed and operated that large quantities of crude oil and other substances leak therefrom and percolate through the intervening soil into and upon the premises of the plaintiff, giving rise to disagreeable, noxious and unhealthy odors, and that in constructing its pipe lines the defendant so changed the grade of the street that the surface water from the plaintiff's and other adjacent lands, which had always from time immemorial been accustomed to flow down, over and across the street, was in consequence thereof made to flow over, into and upon the plaintiff's ground, so that the buildings thereon are rendered mouldy and unhealthy, the cellars flooded with oily and foul-smelling water, the walls and foundations have become decayed and undermined, and the houses unfit for habitation or any ordinary or reasonable use, and so that the plaintiff was compelled to remove from one of the houses, which had been occupied by her as a home, by reason of ill-health caused by the conditions described, and others mentioned later in the bill, of which conditions the plaintiff complained to the defendant, but without avail.
The fourth paragraph of the bill avers that the defendant operates a factory, near the land of the plaintiff, for the manufacture of its products, and that it wrongfully and in utter disregard of the plaintiff's rights, causes large quantities of noxious, offensive and injurious gases and vapors to be emitted from its factory and to spread over and upon the plaintiff's premises, and to permeate and taint the air, so that the plaintiff and her tenants, in the occupation of her houses, become sickened, and the reasonable enjoyment of her property is thereby prevented.
It is charged in the fifth paragraph that immediately in front of the plaintiff's lots, on South Clinton street, the defendant maintains a large and unsightly tank, holding many thousands of gallons of oil, and now containing many gallons of gas oil, a highly explosive and dangerous fluid, which is *580 pumped into the tank through the pipes located beside the plaintiff's property, and that adjacent to the tank there are stored by the defendant thousands of oil barrels, without covering of any kind and surrounded by a wire fence, and at the rear of the plaintiff's premises the defendant maintains a large shed for the storage of grease, oil and other inflammable substances, and, as the plaintiff is advised, the storage of such highly explosive and inflammable oils, and other petroleum products, greases and oil barrels, so close to the plaintiff's dwelling houses, and those of other persons, constitutes a public nuisance, and by reason thereof her property is greatly damaged, rendered less valuable for dwelling purposes, difficult to rent and dangerous for occupancy in the event of fire or lightning.
By the sixth paragraph of the bill it is alleged that as a result of the conditions previously described the plaintiff is deprived of the reasonable use and enjoyment of her property, is unable to reside there herself, or to secure desirable tenants, and is compelled to accept greatly reduced rentals, while, much of the time, the property can not be rented at all.
The seventh paragraph avers that the defendant has recently purchased land adjacent to that of the plaintiff, and the latter is informed and believes that the defendant intends to construct in immediate proximity to the plaintiff's houses a tank in which will be stored vast quantities of highly inflammable and explosive oils, whereby, if permitted, the value of the plaintiff's property will be entirely destroyed.
The bill concludes with the allegation that the plaintiff is without remedy save through the intervention of a court of equity, and prays that the defendant may be restrained by injunction from: (a) so operating or maintaining its pipes as to cause oil to flow into or upon the plaintiff's property; (b) or so as to cause water to flow into, over and across the land of the plaintiff; (c) from storing any explosive oil or any highly inflammable fluid on its property adjacent to the plaintiff's houses; (d) from continuing to store the large *581 pile of empty oil barrels, mentioned in the bill, without adequate measures to prevent them from being set on fire by accident or design; (e) from storing large quantities of greases, oils and other inflammable and explosive substances in the rear of the plaintiff's property, without taking adequate measures against fire and its consequences; (f) from so operating its factory as to cause noxious gases or vapors to be emitted therefrom and to interfere with the reasonable use and occupation of the plaintiff's buildings and premises. There was also a prayer for general relief. The bill was accompanied by exhibits showing the sources of the plaintiff's title.
In pursuance of an order of Court providing for the issuance of an injunction, as prayed in the bill, unless cause to the contrary were shown by the defendant on or before a designated day, a demurrer to the bill and each of its paragraphs was interposed. After a hearing upon the demurrer, it was sustained as to the fourth, fifth and seventh paragraphs of the bill and overruled as to the remaining paragraphs. From the order passed by the Court below to that effect the plaintiff has taken this appeal.
The first question to be decided is whether an order sustaining a demurrer to only part of a bill of complaint is appealable.
An appeal is allowed by statute in equity cases "from any final decree, or order in the nature of a final decree." Code, Article 5, § 26. It is also provided that "Whenever any court having equity jurisdiction shall refuse to grant an injunction according to the prayer of the bill or petition filed in the cause, an appeal may be taken from such refusal by any party aggrieved." Ib. section 31. The right of appeal from courts of equity exists only in those instances in which it is expressly conferred by statute. Peoples v. Ault,
The fact that the order appealed from merely sustained the demurrer to the specified paragraphs of the bill, without dismissing the bill to that extent, does not affect the question as to the appealability of the order. In McNiece v. Eliason,
As repeatedly defined by this Court, "an order in the nature of a final decree," from which an appeal may properly be taken, is "one which finally settles some disputed right or interest of the parties." Chappell v. Funk,
It was held in Peoples v. Ault,
An order overruling a demurrer to part of a bill of complaint is altogether different in its effect from one whichsustains such a demurrer, especially where, as in this case, the specified causes of injury from which relief is sought are distinct and separable. If the demurrer filed by the defendant had been overruled as to the fourth, fifth and seventh paragraphs of the bill, the plaintiff's right to an injunction against the continuance of the conditions therein alleged to exist would have remained undetermined. A further decree would have been necessary to afford her the desired relief, and this might have been precluded by the proof as to the facts. But with the demurrer sustained as to those paragraphs, the injuries to which they refer are thereafter disregarded for the purposes of the issues to be joined and decided. *584 No answer is required, no evidence is admitted and no subsequent decree is passed by the trial Court in reference to the averments of fact thus eliminated. The rights dependent upon those allegations are as completely disposed of, in respect to the particular remedy proposed, as if they had been embodied in a separate bill to which a demurrer was sustained. If this had in fact been the course of the litigation, there could be no question as to the right of appeal. McNiece v. Eliason,Chappell v. Funk, supra, and the considerations supporting such a right apply with equal force to the order actually passed, to the extent to which it precludes the further prosecution of the suit.
The bill applied for an injunction against five causes of injury, and, except as to two of them, the order sustaining the demurrer refused in effect to entertain the application. If the order had in terms refused the injunction as to the conditions mentioned in the portions of the bill held demurrable, the case would be within the very letter of the statute, already cited, allowing an appeal from an order refusing "to grant an injunction according to the prayer of the bill or petition." The necessary effect of the order, however, is to deny the plaintiff the full measure of injunctive relief for which he prays in the bill, and the exigency has, therefore, arisen, in fact, if not in technical form, in reference to which the Act intended to afford a right of appeal.
For the reasons we have stated the motion to dismiss the appeal must be overruled.
The first question to be considered on the demurrer is whether the injuries to which the plaintiff claims, in the fourth paragraph of the bill, to be subjected, in her personal and property interests, by the discharge of "large quantities of noxious, foul-smelling and injurious gases and vapors" from the defendant's factory, constitute a ground for equitable relief by injunction. It is charged, as already noted, that these gases and vapors cause the plaintiff and her tenants to become sickened, and prevent the reasonable enjoyment of her property. These averments, if duly proven, are *585
sufficient to invoke the restraining power of a court of equity. It has been definitely ruled that such protective relief will be granted at the suit of one who, in a material degree, is disturbed in the comfortable and reasonable occupancy and use of his property by offensive smoke, vapors or gases emitted from a factory located on the neighboring land. Adams v. Michael,
For the purposes of the demurrer in this case it is admitted that the defendant company is causing noxious gases and vapors to be emitted from its factory, and to spread over the plaintiff's property in such quantity as to injuriously affect the health of its occupants and the reasonable enjoyment *586 of their possession. The injury thus alleged is sufficiently serious and substantial, if proven, to entitle the plaintiff to the relief sought in this proceeding.
A different principle governed the case of N.C. Ry. Co. v.Oldenburg and Kelly,
The fifth paragraph of the bill contains the averments in relation to the large tank, located immediately in front of the plaintiff's property, on South Clinton street, and said to contain a highly explosive oil, which is pumped into the tank through pipes running immediately beside one of the plaintiff's houses. In the same paragraph are the allegations in reference to the storage, near the tank, of empty oil barrels in large numbers, without covering of any kind, and to the storage of grease, oils and other inflammable substances in a shed maintained by the defendant for the purpose in the rear of the plaintiff's premises. The objection to the presence of the empty oil barrels, and the other combustible materials mentioned, is apparently based upon the theory that they increase the danger of fire being communicated to the oil in storage and thus producing a disastrous explosion. The accumulation of the inflammable articles and products is associated with the storage of the oil in the charge that a public nuisance is thereby created. Special danger to the *587 plaintiff's interests is indicated in the allegation of the immediate proximity to her property of the pipe line through which the oil is conveyed. The demurrer admits that the gas oil contained in the tank is a highly explosive fluid and that the storage of such material so close, as the position described, to the plaintiff's dwelling house property, in conjunction with the other conditions alleged in the bill, greatly impair the availability of the premises for the uses to which they have been devoted.
In a note appended to the case of Whittemore v. BaxterLaundry Co. (Mich.), reported in 52 L.R.A. (N.S.) 930, the general rule is stated, as deduced from the decisions there collected, that, "The storage of oil and gas is not a nuisanceper se. Whether or not such storage is a nuisance at all depends upon the locality in which the substance is stored, together with its proximity to other buildings and the circumstances of the case in general."
It was held in O'Hara v. Nelson,
The facts of each case must determine the question whether a nuisance exists against which a neighboring proprietor is justly and reasonably entitled to call upon a Court of equity for protection. Upon the allegations of the bill in this case, in reference to the storage of explosive oil and inflammable materials, we think the conditions complained of are shown to be of such a character, and sufficiently serious in their effects upon the property and other interests of the plaintiff, as to justify her present suit. In the face of the averments of fact to which we have referred, and in the absence of answer and proof, we could not properly hold that the plaintiff can have no redress in equity for such causes of danger and injury.
The views we have expressed enable us to deal very briefly with the allegations of the seventh paragraph of the bill, which relate to the prospective installation of a large tank, for the storage of inflammable and explosive oils, in immediate proximity to the plaintiff's houses. This would undoubtedly be a nuisance against which the plaintiff would have a clear right to preventive relief. The allegation as to this branch of the case is not in the form of a specific charge, but states only the plaintiff's information and belief in regard to the purpose of the defendant to locate the storage tank in the position indicated. It is objected that this form of averment is not sufficiently definite; but it is to be observed that the bill was referring in this instance to the defendant's intention, and, as said in 16 Cyc. 230, the rule requiring positiveness of pleading "is relaxed so as to permit an allegation on information and belief where the fact is not presumably within the knowledge of plaintiff, but is within that of defendant."
As we are of opinion that the bill is not demurrable as to any of its paragraphs, the order appealed from will be reversed to the extent to which it sustains the demurrer, and the case will be remanded for further proceedings.
Order reversed, in part, with costs to the appellant, andcause remanded. *589