Metropolitan Savings Bank v. Manion

Roberts, J., delivered the opinion of the Court. This is an action brought to recover damages for a nuisance. The case was tried before a jury in the Superior Court of Baltimore City, and the verdict and judgment being against the plaintiff, it has taken this appeal. The appellant (plaintiff below), is the owner of a lot of ground in the city of Baltimore which it purchased prior to March, 1895. The only improvement upon the lot at the time of its purchase was a double house fronting on North Eutaw street. Subsequently to the purchase, the appellant built on the lot a small two-story dwelling house fronting on Jordan alley, which extends along the rear of said lot. The appellee, at the time this suit was brought in the Court below, was the owner of a lot of ground adjoining that of the appellant and extending from Eutaw street to Jordan alley. Upon this lot he erected a brick stable, which was first occupied in August, 1895. In July, 1895, the appellee leased., the property, the lease to begin on Agust 1st, 1895. It — 79 — has since then been almost continuously used by the lessee as a livery stable wherein a large number of horses were kept; that there are a great number of openings in the northwest wall of said stable on a line of the windows of the first floor of the house of the appellant, through which openings, the declaration charges, offensive gases and odors flow into the house of the appellant rendering it unfit for the use of a dwelling, &c. At the very threshold of this case, it must be noted that the declaration contains no allegation that the stable as constructed constituted a nuisance, or that in its proper use and occupancy it would necessarily become a nuisance. The testimony shows veiy clearly that the appellee has never at any time since its erection used or had in his possession the stable in question. With this preliminary statement we will examine the exceptions contained in the record; six of which relate to the admissibility of the proof offered, the other to the granting of the appellee’s two prayers. We infer from its treatment in this Court that the first exception was abandoned. It was not pressed upon our attention at the argument and in any event it could avail the appellant nothing, as the question was clearly irrelevant and improper. The second exception was to the refusal of the Court to permit the question to be asked the appellant’s president, “ Did you notify Mr. Manion that he must not put those windows in the wall next to that property?” Upon objection, the Court refused to allow the question to be put and answered. For what purpose should it have been allowed; it in no respect affected the liability of the appellee. It could make no possible difference whether the appellee was notified or not; by giving the notice, the appellee’s liability was neither fixed nor enlarged. The question was therefore immaterial and properly disallowed. The third and fourth exceptions can properly be considered together. We do not perceive that the two letters which are the subject of the third and fourth exceptions are in any sense material to the issues in this case. The letter of the president of the appellant — 80 — addressed to the appellee contains no information which the j ury should have been permitted to pass upon and is wholly without character as legal evidence in this cause. The letter addressed by the appellant’s attorney to the appellee is merely a notification of the intention of the appellant in the event of the failure of the appellee to agree upon an adjustment of their differences. But if either or both of the letters were intended to be notice to the appellee to abate the nuisance, no previous demand was necessary, and therefore these letters were immaterial and the Court committed no error in excluding them from the jury. Walters v. County Commissioners, &c., 35 Md. 385; 1 Taylor on Landlord and Tenant, sec. 211. What we have said concerning the third exception applies equally to the fifth exception and no further comment need be indulged in here. The sixth exception is taken to the action of the Court in refusing to allow Mr. Snell to answer the following question : “ Now, from that examination, can you say whether or not a number of windows in the wall of the stable in which a large number of horses are kept within the space you described, whether or not those windows in their ordinary use, such as windows are usually put to, would create a nuisance?” By the question propounded to Mr. Snell it was sought to make of him an expert, instead of stating the facts within his knowledge and allowing the jury, as was their duty, to pass upon those facts and draw their own inferences. This Court has in a recent case said, “it was an unsafe practice in the admission of testimony to allow witnesses to speak as experts unless the Court is well satisfied that they possess the requisite qualifications ; not alone on this account, but the effect of such testimony is more difficult to estimate, from the fact that undue importance not infrequently attaches to it and gives to it an influence upon the minds of a jury to which it is not fairly or reasonably entitled.” Dashiel v. Griffith, 84 Md. 377. Judge Miller delivering the opinion of this Court in Stumore v. Shaw, 68 Md. 19, said: “ There is a general concurrence of authority and decisions — 81 — in support of the proposition,' that expert testimony is not admissible upon a question .which the Court or jury can themselves decide upon the facts; or stated in other words, if the relation of facts and their probable results can be determined without special skill or study, the facts themselves-must be given in evidence, and the conclusions or inferences must be drawn by the jury.” To the same effect is the case of the Balto. & Y. T. Road v. Leonhardt, 66 Md. 78, and also the Railroad Company v. Schultz, 43 Ohio St. Repts. 292. We come now to the consideration of the prayers. The appellant offered five prayers, all. of which were granted by the Court. The only instructions to which exceptions have been reserved are the two prayers offered by the appellee and granted by the Court. The first of these prayers contains the proposition, that if the jury find that the stable in controversy here was so constrhcted that when used for livery purposes, with proper care and caution, it could be-so used as not to occasion any of the objections set out in the prayer, that is to say, would not fairly and reasonably cause such actual physical discomfort to persons living in the property of the appellant, of ordinary sensibility and ordinary tastes and habits, which under the decisions of this Court constitutes a nuisance, and shall further find that said stable has not, at any time since its erection, been used by the appellee as a livery stable but has always been in the possession of the tenant under the lease from the appellee, then the appellant is not entitled to recover; and further, that the appellee is not responsible for any consequences growing out of the careless, improper or incautious use of said stable by said tenant, or his employees. The authorities which hold that a livery stable in a city is not per se a nuisance, are so numerous that it would serve no-useful purpose to repeat them. It may, however, be taken as a concession that such is the well-established rule of law about which no controversy can be reasonably expected to arise. And whilst this is unquestionably true it is equally — 82 — clear that a stable, whether used for livery purposes or for private convenience, may sometimes become a very great nuisance and source of discomfort that the Courts would not fail to grant relief. But the fact just noted, that a livery stable is not necessarily prima facie a nuisance, suggests caution in dealing with the rights of the owners or occupants of livery stable property. The Court in Dargan v. Waddill, 31 N. C. 244, said: “ It is true that a stable in a town is not, like a slaughter-house or a stye, necessarily and prima facie a nuisance. There must be places in towns for keeping the horses of people living in them, or resorting thither; and if they do not annoy others, they are both harmless and useful erections. But, on the contrary, if they are so built, or kept, or so used as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value as places of habitation, stables do thereby become nuisances.” It cannot be denied that a livery stable in a town adjacent to buildings occupied as private residences, is under any circumstances a matter of some inconvenience and annoyance; and must more or less affect the comfort of the occupants as well as diminish the value of the property for the purpose of habitation. But this is equally true of various other erections that might be mentioned which are indispensable, and which do and must exist in all towns. Kirkman v. Handy, 11 Humph. 406; Shiras v. Olinger, 50 Iowa, 571; Flint v. Russell, 5 Dillon, Ct. Ct. Rep. 151. In conflict with the law settled and determined by this Court in numerous cases, the appellant contends that the last proposition embodied in the defendant’s first prayer which we have been considering, is not supported by the authorities quoted to sustain it. The case of Rich v. Basterfield, 56 E. C. Law, 805 (4 Manning, G. & Scott, 782), has been subjected to a most critical examination and an effort has been made to show that its authority has been doubted and impaired. The case has been recognized and practically and substantially supports the opinion of this — 83 — Court in the following cases : In Owings v. Jones, 9 Md. 117, Mr. Ch. J. Le Grand delivering the opinion of the Court, said: “ A careful examination of the authorities satisfies us there is no foundation for either of the prayers. We have consulted them in the original reports, but inasmuch as they are very clearly brought together and discussed, both by Court and counsel, in the case of Rich v. Basterfield, 4 Manning, Granger & Scott, (56 Eng. Com. Law Rep. 784), we will content ourselves with a reference to that case. After a full review of all the cases, and that too after a second argument, we understand the Court to deduce, at least, the two following principles from the numerous adjudications to which reference is had : First. That where property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happens during such possession, the owner is not liable; but second. That where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable.” In Maenner v. Carroll, 46 Md. 216, Mr. Justice Alvey delivering the opinion of the Court, held that, “ If a landlord demise premises which are not in themselves a nuisance, but may or may not become such, according to the manner in which they are used by the tenant, the landlord will not be liable for a nuisance created on the premises by the tenant. He is not responsible for enabling the tenant to commit a nuisance, if the latter should think proper to do so. Owings v. Jones, 9 Md. 108; Rick v. Basterfield, 4 C. B. 805, (56 E. C. L. 782.) In such case, it may be said, in one sense, that the landlord permitted the tenant to create the nuisance, but not in such sense as to render him liable.” In accordance with the views just stated is Albert v. State, use of Ryan, 66 Md. 325. Therefore, whatever may be the standing of Rich v. Basterfield elsewhere, it must in this State be regarded as a recognized and well-established authority. We think the Court was — 84 — clearly right in the granting of the appellee’s first prayer. As to the appellee’s second prayer, we find it differs substantially but little from the principles announced in the first prayer. What we said in regard to the first prayer is in great measure applicable to the second prayer. We have failed to discover such inconsistency in the prayers of the appellant when contrasted with those of the appellee as in any manner tends to mislead the jury, as contended by the appellant. The second prayer pointedly calls the attention of the jury to the effect of the windows in affording light to the stable, and also the ventilation thereof if the same should be required. If in the construction of the stable the landlord made these windows, with the possible effect asserted, in the language of 46 Md. 216, “he is not responsible for enabling the tenant to commit a nuisance, if the latter should think proper to do so. In such case, it may be said in one sense that the landlord permitted the tenant to create a nuisance, but not in the sense to make him liable.” Finding no error in the ruling of the Court, it follows from what we have said that'the judgment must be affirmed. (Decided January 5th, 1898). Judgment affirmed tvith costs.