Fahnestock v. Feldner

Fowler, ]., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City. The plaintiffs are trustees under the will of the late Chauncey Brooks, and the defendants are the owners of various lots and tracts of land in Baltimore City. The bill alleges that the plaintiffs, as trustees, are the legal owners of a tract of land of 25¾ acres in Baltimore City bounded on the north by Druid Hill Park, on the south by Whitelock street, on the east by the centre line of Bolton street and on the west by the easternmost line of Eutaw Place; that there has always been a water-course over said and fed by springs, beginning originally at a point on said *340 land about t 50 feet east of the east line of Madison avenue and about 240 feet southeasterly from the southeast line of a street laid out on said land called Brooks street, shown on the plat used at the hearing, and flowing thence in an easterly direction over the land of said Brooks a distance of 1400 feet to the eastern boundary thereof; thence over the land next adjoining on the east, now owned by the defendants, Frederick W. Feldner, the Safe Deposit and Trust Company of Baltimore, trustee, Frederick M. Rice, Philip Vogle and other defendants, 420 feet to the land now belonging to the defendant, the Gray Improvement Company and other defendants; thence still easterly over the land formerly owned by Wm. Callow to the land now owned by the defendants, N. P. Bond, trustee; and thence in same direction on the land formerly belonging to the Bond estate to Mt. Royal avenue, and thence under that avenue through a culvert to Jones’ Falls. The bill further alleges with great particularity the manner in which and the times when the various defendants by means of work done on the lands owned by them respectively, so obstructed the flow of the water in the stream we have mentioned that a large pond of stagnant water has been formed on the lands of the plaintiff; that the water by means of the obstructions complained of has already been forced back 175 feet west of the east line of plaintiffs’ land covering about three-fourths of an acre rendering it wholly valueless aud causing a nuisance and irreparable damage to the plaintiffs. The prayer of the bill is for an injunction prohibitory and mandatory against all the defendants from furthur obstructing the flow of the watérof said stream; and commanding them to remove the said obstructions on their respective lands, &c., and for other and further and general relief. On 4th October, 1902, a preliminary injunction wes issued as prayed. The defendants answered setting up various defenses. Most of them have denied, that they have ever done anything on their respective lands which caused any obstruction and set up as a defense that the plaintiffs have themselves *341 polluted the stream or allowed others to do so by permitting sewage to flow into it, and that they should not, therefore, be afforded any relief by a Court of equity. Several of the defendants allege that the obstructions complained of and alleged to be on their lands respectively were caused by the Mayor and City Council of Baltimore dumping ashes, street cleanings and garbage thereon and the Mayor and City Council in its answer admits that it is using the defendants’ lands, with their permission, but denies that it is creating any nuisance. Some of the defendants rely on and plead certain matters which will be considered later on in this opinion. The Court below on the bill, answer, evidence and argument decreed that the preliminary injunction should be dissolved and dismissed the bill. From this decree the plaintiffs have appealed. The case was fully argued by the able counsel of the respective parties, and although the situation presented by this appeal is somewhat difficult and perhaps in some of its aspects in a measure different from most cases involving the reciprocal rights of owners of land through which water-courses flow, yet we think the general principles which must govern the decision of this case have been settled. In spite of the denials of some of the defendants, the existence and general course of the natural stream mentioned in the bill is abundantly established by the testimony. This was virtually conceded at the hearing, and the argument of the defendants was that even if there was such a natural stream formerly flowing through the plaintiff’s lands, and even if the defendants or some of them had obstructed it, yet a Court of • equity would not grant the plaintiffs the relief prayed, to wit, the restoration of the stream to its original bed because “the water drained into the stream is greatly polluted by sewage and that the maintenance of an open ditch or drain through the defendant’s property would constitute a public nuisance. ” It requires no authority for the proposition that the plaintiffs were entitled to have the natural stream which flowed through their lands continue in its natural course, at least so far that *342 its obstruction would cause neither them nor their land any injury. And while the argument of defendants concede this, they say that the plaintiffs have themselves polluted or permitted the stream to be polluted by sewage. The plaintiffs answer this position by conceding that the house drainage in contradistinction to closet or “human” sewage, from certain houses on Madison avenue drained into the stream from the time they were erected by the late Mr. Brooks in 1876. We find no satisfactory evidence in the record that the plaintiffs have caused or permitted the privy wells or water closets to be drained into the stream. One of the defendants (Thos. E. Bond) testified that in 1891 or 1893 the water was clear, no discoloration or odor from it; “we had to cut through the stream to straighten it and were constantly working in the water, and afterwards when .we dug a shaft and went dowir nearly fifty feet under ground, there was no smell from the water at all down in the shaft.” This evidence demonstrates not only that the house drainage was not, of itself a nuisance, but also that there was not certainly at that time to the extent claimed by defendants in existence the general emptying into the stream of privies or water closets. There is also some testimony tending to show that closet and privy drains were carried into the stream. But if there was any such pollution of the stream from the source last named there is no convincing evidence that it was caused by the plaintiffs. We think, therefore, it may be assumed that whatever pollution of the stream existed, if any, on the part of the plaintiffs, was such as resulted from the ordinary house and kitchen drainage. And this brings us to the question whether such a use of the stream is. a proper and legal use under all the circumstances of this case. We have said that the right of the riparian owner to have the water of a stream come to him in its natural purity, or in the condition in which he has been in the habit of using it for the purposes of his domestic use or of his business, is as well recognized as the right to have it flow to his land in its natural quantity. Goodyear v. Schaeffer, 57 *343 Md. I. But “all abstract rules are subject to considerable modification when they are applied to the exigencies of human life.” Helfrich v. Catonsville Water Co., 74 Md. 275. Wjiile we do not mean by anything we shall say, in any manner, to modify or limit the general rule so well settled here and elsewhere, which prohibits the pollution of streams which are used for drinking and for domestic purposes, yet it must be conceded that a use which under some circumstances would be proper and reasonable, would not be so under others. In the country remote from the urban and suburban localities it would be a misdemeanor and should be declared to be a serious crime to wilfully pollute the pure waters of the streams which are used generally for domestic purposes. But we have before us a very different kind of a stream. For more than twenty years some of the house drainage from Madison avenue and other streets in that locality has been carried into it. During all this time it appears to have been the object of those through whose lands this stream passed to make some arrangements, however imperfect, to pass the water on without using it for any purpose whatever. Indeed the testimony is that most of the defendants have buried the stream from 40 to 60 feet under the surface of their respective lots as now graded. Under these circumstances can it be said that the use of the stream by the plaintiffs as a-drain for house sewage . (not from water closets and privy wells) is an unlawful use ? In the Mayor, &c., Balt. v. Appold, 42 Md. 457, this Court said that the limits which separate the lawful from the unlawful use of a stream, it may be difficult to define, and that it is impossible to lay down a precise rule to cover all cases. “It is not under all circumstance an unreasonable or unlawful use of a stream to throw or discharge into it waste or impure matter * * * The size and character of the stream, the uses to which it can be or is applied, the nature and importance of the use claimed and exercised by one party, as well as the inconvenience or injury to the other party would be subjects involved in the inquiry.” Angell on Water-courses, sec. 140D; Atty. Gen'l v. Gee, L. R., 10 Eq. 131, 137. *344 Without further comment upon the conceded use by the plaintiffs of the stream as a drain in the manner indicated, we are of opinion that they had a legal right so to use it for that purpose and it, therefore, follows that their conduct in this respect will not of itself, disentitle them to the relief in a Court of equity. It should be noted in passing that the obstructed water— some of it certainly [if the evidence is to be credited) is the water of a natural stream—and therefore the rule which might govern as to surface water exclusively would have no application—especially if as we have said, the plaintiffs were lawfully using the natural stream to the extent indicated, as a drain for surface water. It is said in the case of Jessup v. Bamford Bros. Mfg. Co., 66 N. J. L., 641 (58 L. R. A. 329), that Lord Tenterden had forcibly expressed the legal idea when he declared that “surface water was the common enemy which every proprietor may fight and get rid of as best he may.” And this seems to be the rule which has been adopted in some .of the States ; but it does not prevail to that extent in Maryland. Thus in Phil., Wil. & Balt. R. R. Co. v. Davis, 68 Md., the injury complained of resulted from an obstruction of surface water which had formerly found an ample outlet, and it was held the plaintiff was entitled to recover for injury caused by obstructing the flow of surface water and that a proper outlet or culvert must be provided, of ample capacity to carry, off the water, so that it may not be obstructed and thus accumulated on the upper and adjacent lands of other persons. And to the same effect in Balto. & Sparrows Point R. Co. v. Hackett, 87 Md. 299, where it was held that the defendant having obstructed the flow of the surface water, was bound to provide adequate ditches or culverts for its passage so that the adjacent land should not be injured. We are, therefore, of opinion that in the first place, the stream in question is or was, before it was obstructed, a natural stream; second, that under the evidence in this case the use of the stream for house drainage was reasonable and legal. But there are other defenses in addition to those we have *345 considered, which have been interposed by some of the defendants. Thus the Central Trust Co. and some others, perhaps, contend that the obstructions were made before they purchased and that, therefore, under the rule applied in Lion v. City Pass. Rwy. Co., go Md. and other cases they must have had notice of the inj ury and opportunity to abate the nuisance before suit can be brought. But we are of opinion that if it is not absolutely established by the evidence, yet it is sufficiently so for all practical purposes that the stream in question before it was obstructed passed over or through the tracts or lots owned by the defendants and that they have either made, contributed to, or allowed the obstructions complained of to be made. In either event there would be no necessity of giving the notice relied on by the defendants. The defendants, Grafflin and Buck, contend that the stream did not cross their lots at all; but they (the lots), are located on one of the plats in the record and the witness, F. E. Pegram, proved the title to these lots was in them. It may be conceded that at some points and on some of the lots of the defendants it may be difficult if not impossible now to designate the exact location of the bed of the natural stream. But this difficulty if it exists grows out of the acts of the defendants in grading their land. Hence they and not the plaintiffs must be subjected to the inconvenience and expense resulting from the grading or from the imperfect means adopted to carry the water off. In conclusion it seems to us that this is an especially proper case for a Court of equity. Indeed it is difficult to see how the plaintiffs could get adequate and complete relief in any other Court. While a separate suit at law against each of the defendants would be necessary and while even if any one or more of the defendants were ready and willing to re-open the stream in some reasonable and satisfactory way, they would not be able to act without the concurrence and active co-operation of all. Under such circumstances only a Court of equity can afford relief suitable to the exigencies of the case. It does not necessarily follow, however, that, as held below, *346 no relief could or should be granted the plaintiffs, because the water of the stream being polluted by sewage the maintenance of an open ditch or drain would constitute a public nuisance. The plaintiffs ask for certain specific relief and for general relief. What they want and what we have said they are entitled to is some action on the part of the defendants which with the least inconvenience and cost to them, will result in carrying the accumulated water off the plaintiffs land. If in the first instance the defendants had constructed proper sewers, drains and culverts before grading, the present difficulty would not exist, but whatever the difficulties, if not practically insuperable, they must be overcome and the obstructions removed if relief cannot be afforded in any other way. But there is no reason, if proper and adequate outlet be constructed to carry off the water why the defendants should not grade their land'as they see proper so as to fit it for building purposes. (Decided January 15th, 1904.) Decree reversed and cause remanded with costs to the plaintiffs.