Carroll Springs Distilling Co. v. Schnepfe

Burke, L, delivered the opinion of the Court. This is the defendant’s appeal from a judgment rendered against it in the Superior Court of Baltimore City. The suit was one in tort, and the declaration contained five counts, each of which set out a distinct cause of action. The first count alleged that the defendant wrongfully caused to issue and proceed from a certain distillery carried on by it large quantities of offensive, poisonous and unwholesome smoke and other vapors and noxious matter which spread and diffused themselves over and upon certain land of the plaintiff, and which settled upon and were deposited upon the soil and surface of said land, whereby the trees, hedges, crops, lands and dwelling of the plaintiff were damaged and deteriorated in value; the second count alleged that the defendant, its agents and servants broke and entered the plaintiff’s close and erected partly upon the land of the plaintiff, a large slop tarde; the third count charged that the defendant wrongfully caused to issue from the slop tank aforesaid large quantities of offensive, poisonous and unwholesome odors, which spread and diffused themselves over and upon the lands of the plaintiff, corrupted the air and which settled upon the soil and surface of said land; the fourth count alleged that the said slop tank daily overflowed over and upon the premises of the plaintiff, and formed a stagnant pool injuring the trees, hedges and lands and dwellings of the plaintiff; the fifth count charged that the defendant company dug directly adjoining the dwelling house of the plaintiff a large pit, and so graded and paved its lot of ground as to cause all the water that fell upon its lot to run into and accumulate in the pit; and that it failed to drain the pit, and in consequence thereof *428 the accumulation of water in the pit passed through and into the cellar of the plaintiff’s dwelling and thereby caused it to become damp and unfit for habitation. Each count, except the second, concluded with the averment that by reason of the wrong therein stated the plaintiff was prevented' from having so healthy and beneficial use and occupation of his dwelling and lands as he otherwise would have had. the case proceeded to trial upon the issue joined upon the defendant’s plea of not guilty. At the close of the whole case at the instance of the defendant, the Court instructed the jury that there could be no recovery under the second count; nor could there he any recovery for permanent injury or permanent diminution in the value of the plaintiff’s lot and houses; nor could there be a recovery of punitive damages, as there was no evidence upon which such damages could be allowed. The case being one of a temporary, or abatable private nuisance, is to be governed by the well-settled rales applicable to an action of that character. It is unnecessary, in order to dispose of the legal questions presented, to discuss the evidence at much length. A statement of its general purport and effect will be sufficient. The plaintiff is the owner of a lot situated on Frederick avenue in Baltimore City. This lot is improved by two dwelling houses in one of which the plaintiff resided with his family during the continuance of the alleged nuisance, and in the other, at the time of the trial, the plaintiff’s wife conducted a dry goods business. The defendant’s property adjoined the plaintiff’s on the west, and fronts one hundred feet on Frederick avenue with an even depth of two hundred and seventy feet. Upon this property it has a plant for the distillation of spirits and the manufacture of yeast. A smaller plant for the conduct of a like business was operated upon the premises by a Mr. Weitheger prior to 1906 in which year the defendant bought the business and somewhat enlarged the plant, and in 1901 it purchased additional land to be used in connection with its business. *429 The distillery of Mr. Weitheger was a small affair, consuming about a ton of coal a day. He had a small slop tank located about in the same place as the one complained of in the declaration, but this tank caused no injury to the plaintiff’s property. After the defendant acquired the property, it built a new and a larger slop tank. In the rear of the defendant’s lot, about Sé feet from the plaintiff’s property, are erected two smoke stacks seventy-five feet high, and placed on the top of a building fifteen feet in height. There was no evidence offered of any injury to trees, hedges, herbage and crops as alleged in the declaration, nor was there any evidence of Toss of sales or rent; but there was evidence tending to support all the other allegations of injury, except that stated in the second count. This, however, was controverted by much evidence produced on behalf of the defendant. It was the exclusive province of the jury to determine these disputed questions of fact, and, whether its decision was right or wrong, this Court has no power to review it. During the progress of the trial eight exceptions were reserved by the defendant. Seven of these related to the admission of evidence, and one to the ruling on the prayers. The Court, over the objection of the defendant, permitted the plaintiff to offer evidence as to the value of the property before and after the injury complained of. As the nuisance was a mere temporary one, this ruling which is the matter complained of in the first, second, third, fourth and fifth exceptions, was erroneous; but inasmuch as the Court subsequently instructed the jury that there could be no recovery for permanent injury or permanent diminution in the value of the plaintiff’s property it was not prejudicial error. The Court will not reverse a judgment unless there be a concurrence of error and injury. The defendant’s sixth and seventh exceptions present the same question. It offered evidence tending to prove that it would not have bought other or additional property, which it did buy, to be used in connection with the business if it had heard any complaint, or had known that anybody would *430 object to tbe distillery. It is contended that upon the facts of the case the plaintiff is equitably estopped to prosecute this suit. This contention rests upon the mere silence of the plaintiff, as alleged by the defendant, in respect of the wrong sued for. It is not pretended that the plaintiff knew that the defendant was about to buy additional property, or that he knew that it had in fact bought such property, or that he said, or did anything to induce the defendant to purchase property. The defendant was chargeable with the knowledge that no one has a right to erect or operate works which are a nuisance to a neighboring owner, and then say he has expended large sums of money in the erection and establishment of its plant. It must be held to have known that the neighboring owner is entitled to the reasonable and comfortable enjoyment of his property, and that, if his rights in this respect are invaded, he is entitled to the protection of law, let the consequences be what they may. Susquehanna Fertilizer Company v. Malone, 73 Md. 282. The offer was not to prove that the plaintiff induced or encouraged the.purchase with the knowledge of the manner in which the plant was to be operated, or that the defendant did in fact consider or rely upon his silence, but merely that it would not have bought if it had heard or known of complaints from anybody. If it did in fact create a nuisance, it is chargeable with knowledge that any person injured would have a right to complain. Under such circumstances, the doctrine of estoppel in pais, which is applied in a great variety of circumstances, cannot be invoked. “The doctrine of equitable estoppel stands upon the broad ground of public policy and good faith; it is interposed to prevent injustice and to guard against fraud, by denying to a party the right to repudiate his admissions, when those admissions have been acted upon by persons to whom they were directed and whose conduct they were intended to influence.” Alexander v. Walter et al., 8 Gill, 254; Nicholson v. Snyder, 97 Md. 427; Hardy v. The Bank, etc., 51 Md. 590. *431 Estoppel by silence can only arise where the silence would amount to a fraud, actual or constructive. 11 Am. & Eng. Ency. of Law, 427; Carmine v. Bowen, 104 Md. 204. It is stated in 29 Cyc. 1231, that “one who has slept upon his rights for a considerable time by acquiescing in the alleged nuisance will be denied equitable relief, and will be left to his remedy at law; but the fact that a person knows that a structure -is being built and the purpose for which it is to be operated and makes no objection thereto, does not afterward estop him to sue to abate it as a nuisance because of injuries arising from its use, unless he encouraged or influenced the person complained of to build the structure and establish his business in the neighborhood.” This brings us to the consideration of the prayers. The defendant submitted eight prayers for instruction to the jury, all of which were granted except the sixth, which was in these words: “The plaintiff is not entitled to any damages which he might have avoided by the exercise of ordinary care on his part.” This prayer was intended to raise the question of the defendant’s duty to minimize the damage which the fourth count alleged to have been caused by the overflow from the slop tank. There was evidence in the ease upon which a proper instruction upon this point might have been based; but the prayer as offered was defective for two reasons, either of which is sufficient to have caused its rejection. First, it was misleading, since it was calculated to lead the jury to believe that there could be no recovery in respect to the wrong alleged in this count, if the damages might have been avoided by the exercise of ordinary care on the plaintiff’s paid; secondly, it fails to define the duty imposed by law upon the plaintiff and the consequences to him which result from the breach of that duty. Assuming that the tort had been committed, the plaintiff was under an obligation to do what he could by reasonable exertion and expense to save himself from the consequences of the wrong, and all damages which resulted from a failure *432 to discharge that duty must be borne by him, subject, however, to this limitation, that such damages cannot be used to defeat the right of the plaintiff to maintain his action and recover against the wrongdoer. The doctrine upon this subject is fully stated in 13 Cyc. 71; Lange v. Wagner, 52 Md. 311; Fustenburg v. Fawsett, 61 Md. 192; Baltimore and Sparrows Point Railroad Company v. Hackett, 87 Md. 224. The plaintiff’s first, second, third and fourth prayers are based upon the first, third and fourth counts of the declaration, and merely conclude to the plaintiff’s right to recover, if the jury found'that the acts recited therein (of which we have said there was evidence) seriously interfered with the comfortable enjoyment of the plaintiff’s property or caused great bodily discomfort. As we have held there was no element of estoppel in the case, these prayers accurately expressed the law applicable to it, and were properly granted. What we have said disposes of the defendant’s special exceptions and motions to strike out testimony. The plaintiff’s eighth prayer, which was upon the measure of damages, constitutes manifest reversible error. In the case of the Belt Railroad v. Sattler, 102 Md. 601, we said: “That the question as to whether darnages were suffered by the plaintiff as a direct consequence of the acts complained of and the extent of those damages were questions for the jury, under proper direction by the Court. This Court in the case of the Baltimore and Ohio Railroad Company v. Carr, 71 Md. 133, held that the rule by which damages are to be estimated is, as a general principle, a question of law, to be decided by the Court — that is to say, the Court must decide and instruct the jury in. respect to what elements and within what limits, damages may be estimated in the particular action. Harker et al. v. Dement, 9 Gill, 7; Hadley v. Baxendale, 9 Exch. 341-354. Indeed, it is of the utmost importance that juries should be explicitly instructed as to the rules by which they are to be governed in estimating damages; for, as was justly observed by the Court in Hadley v. Baxendale, supra: “If the jury are left without a definite rule *433 to guide them, it would in most cases lead to the greatest injustice.” This subject has been recently considered by us in the case of the Western Maryland Railroad Company v. Martin, 110 Md. 554, decided June 1st of the present year. This suit was brought in April, 1907, and was tried in February, 1909. Being an action for a temporary nuisance, the damages recoverable ought to have been confined to such as may have accrued down to the institution of the suit, subject to such abatement under the rules stated as the jury may have found the plaintiff might have avoided by reasonable effort and expense. 21 Am. & Eng. Ency. of Law, 730; Sutherland on Damages, 3rd Ed., sec. 1038; Repp v. Berger, 60 Md. 1. The plaintiff’s eighth prayer not only ignores the question of the plaintiff’s duty to have minimized the damages resulting from the overflow of the contents of the slop tank upon his premises, but it failed to confine the recovery to such damages, if any, as the plaintiff may have suffered to the. time of bringing the suit.. For error in granting this prayer the judgment must be reversed, and a new trial awarded. Judgment reversed, with costs, and new trial awarded.