Lurssen v. Lloyd

Roberts, J., delivered the opinion of the Court. This action was brought to recover damages for a nuisance. The appellee is the owner and occupier of the premises known as No. 418 W. Conway street, in the City of Baltimore, and the appellant the owner and occupier of the premises Nos. 414 and 416 in the same street. The former dwelt in his premises, and rented out rooms to lodgers — the latter occupied his premises as a home, and was at the same- time engaged in the manufacture of cigar, and other light wooden boxes, using a steam engine and boiler in connection with his business. The evidence on the part of the appellee, shows that the use of said engine and boiler, produced loud and disturbing noises and annoying vibrations on his premises, and that large quantities of steam, oppressive smoke, dust, soot, [366] and cinders came from appellant’s premises and settled on those of the appellee, and entered his house, injuring the same, and causing tenants to leave his premises, and causing appellee and his family great disturbance and discomfort. The evidence further shows that the smoke and soot from the engine entered the house of appellee, rendering it unfit for comfortable occupation, and also fell in his yard, making it unfit as a place of washing and drying the clothes of the family; and further proved that the said nuisances created by the appellant greatly depreciated the value of the appellee’s premises, and very much reduced their rental value. The evidence submitted on the. part of the appellant was in substantial denial of that which had been offered by the appellee, with the additional proof that he used the best appliances to prevent the escape from his premises of smoke, steam, cinders, and dust. In rebuttal the plaintiff offered evidence showing that the neighborhood was long built up, and was originally one used exclusively for domestic residences, and the factories, save one, are in other squares, and separated at intervals. The appellant, then offered as testimony in the cause, the original papers in the case of Mitchell vs. Lloyd, in the Circuit Court No. 2, of Baltimore City, which contained a mortgage on appellee’s property on W. Conway street, mentioned in the evidence,, including all the papers, and proceedings in said cause, showing a regular foreclosure of said mortgage, and final ratification of the sale of said property to the mortgagee. This offer was objected to and the objection sustained. The action of the Court upon the objection presents the only exception to the admissibility of evidence. We think the Court committed no error in' refusing to admit this testimony; it certainly was not offered in its proper order. If it was relevant and proper to be considered by the jury, the defendant should have tendered the same when he pres [367] sented his testimony in chief. Not having done so, he had no just cause for complaint that the Court refused to receive it when offered. But the testimony was clearly irrelevant. The fact that the property had been sold to the mortgagee, did not prevent the mortgagor, still in possession, from maintaining his action to recover damages for the injury produced by the smoke, soot, etc., and for loss of tenants, etc. If the appellee had been only a tenant, he could have maintained this action; the nuisance here was not of a permanent character, and could, at any time, have been discontinued. It is not essential that we go again into any elaborate discussion of the law of nuisance, since only recently, in the case of Susquehanna Fertilizer Co. vs. Malone, 73 Md., 268, the subject has been thoroughly considered, and passed upon by this Court. Also in Dittman and Berger vs. Repp, 50 Md., 520, and Woodyear vs. Schaefer, 57 Md., 9. 2nd. The appellant insists that there was error in the Court below granting the appellee’s first prayer, in that it does not properly limit the effect of the words, “injury” and “damage,” by the use of some such restrictive word as “material” or “substantial.” The force of this criticism is lost, when it is ascertained that the second, fourth, and fifth of the appellant’s granted prayers give him the most ample protection respecting the omission from the appellee’s first prayer of the qualifying words alluded to. The appellant’s first prayer was properly rejected. The testimony very clearly shows that the appellant did not dwell in a commercial or manufacturing locality, and, if he had, the law would not permit him to maintain such a nuisance as he seeks to defend in this case. We come now to the consideration of the plaintiff’s third prayer, which in our opinion should not have been granted. The prayer segregates from the mass of testimony one item of damage alone, and then proceeds to prescribe a rule to the jury “that [368] in awarding damages, they may consider any loss .of rental, and also any discomfort to the plaintiff occasioned thereby up to the time of bringing this suit.” This phraseology was well calculated to mislead the jury, who may very readily have believed from its uncertain terms that it meant to allude only to the question of the discomfort of the appellee, occasioned by his loss of rental, or of the discomfort occasioned by the facts set out in his first prayer. But it is indefinite and uncertain to an extent which can not justify us in giving to it our sanction. After the Court had granted the appellee’s first prayer, there ought to have been no difficulty in framing appropriate instructions to the jury for their guidance in assessing the damages. This could have been done by a separate prayer, or could very properly have formed the conclusion to the first prayer, which contained a statement of the facts, upon which recovery was sought to he had. (Decided 18th November, 1892.) One of the vices which the appellant criticized in the appellee’s first prayer has been adopted by him in his sixth prayer, which the Court below very properly refused. The appellee’s first prayer instructed the jury that if they found certain facts, then he was entitled to recover. The appellant’s sixth prayer asks the Court to say in substance, that if they do not find those facts then the appellee is not entitled to recover. The prayer was unnecessary, only calculated to mislead and properly rejected. Judgment reversed, and new trial awarded.