relief.

The defendants demurred to the bill upon the grounds (1) it does not state such a case as entitles the plaintiff to an injunction as prayed, and (2) that it does not state such a case as entitles the plaintiff to any relief against the defendants. The court overruled the demurrer, and it is from its order overruling the demurrer that this appeal is taken.

ed to the southeast. The result showed the the plaintiff," etc.; third, and for general presence of .043 grain of sulphur dioxide per 374 cubic feet, nearly twice the usual amount. Experiment 5 was made from a movable shed erected of shutters, placed on the property of the plaintiff, southeast of and 125 yards from the roundhouse. The wind was variable, but was not generally blowing from the roundhouse towards the shed. The result showed the presence of 1.882 grains of sulphur dioxide, an increase of 75 times over the usual conditions. The It is urged against the bill, to use the sixth experiment was lost on account of high language of the defendants, found in the winds overturning the apparatus. The sev-brief, that "the plaintiff has not shown by enth experiment was made from a shed erected 100 yards east of the roundhouse; the wind blowing from the roundhouse over the shed for the greater length of time, but not invariably so. The test started at 6 p. m., and finished about 4:15 p. m. the next day. The amount of sulphur dioxide was 21.098 grains per 374 cubic feet, showing an increase of 878 times over the usual conditions. Sulphur dioxide acted on by the oxygen in the air forms sulphuric acid.

its bill that it has suffered or sustained any real injury or such as would entitle it in a court of law to substantial damages, with respect to the smoke and its constituents, complained of, and no irreparable damage with respect to the alleged damage done by the stream of water flowing through the ditch on its land; and therefore in neither case has the plaintiff shown itself entitled to an injunction from a court of equity."

in the bill.

[1] We will first consider this objection The report of the chemists states that the in relation to the alleged injuries suffered effect of diluted sulphuric acid upon iron,y the plaintiff by reason of the water flowtin, copper, and zinc is to corrode them, and ing upon and through its land, as alleged that it weakens and finally destroys paint films, and that its action is particularly marked upon cotton and linen fabrics, and not so marked upon wool. It also states that its effect upon persons inhaling air containing considerable quantities of it is irritating, and that such irritating effect must undoubtedly in some cases result not only in serious inconvenience but positive danger to health.

It is clear to us that the plaintiff is not only entitled to recover for the damages sustained by it as a result of this wrong complained of, but that it is likewise entitled to an injunction restraining the defendants from further like injuries. The injury here complained of is such a taking of the land of the plaintiff for public use as demands compensation under the constitutional provision that private property shall not be taken for public use without just compensation.

The report further adds that in the condition of affairs prevailing (in this case), where the sulphur dioxide is accompanied This court, in the case of Guest v. Church by a large number of fumes and gases, the Hill, 90 Md. 689, 45 Atl. 882, in support of effect of sulphur dioxide is multiplied many its views expressed by Judge Schmucker in fold. "This includes, it must be remember- that case, approvingly cited Pumpelly v. ed; dust, soot, carbon dioxide, carbon monGreen Bay Canal Co., 13 Wall. 166, 20 L. Ed. oxide, and coal gas." The report then states 557, in which it was held that the overflowthat "it is a matter of common knowledge ing of the lands of an individual with water that the air of cities must be and is con- by the public authorities for public benefit, taminated to a greater or less extent, and under statutes authorizing it to be done, is that such contamination is of the same gen- such a taking of the land for public use as eral kind as proceeds from the roundhouse demands compensation under the constituof the Pennsylvania Railroad Company must tional provision that private property shall also be recognized. That other contamina- not be taken for public use without just tions, some of which may be of a more compensation. And Judge Cooley, in Ashley serious nature, sometimes occur is also true." v. Port Huron, 35 Mich. 296, 24 Am. Rep. The bill then prays, first, that a mandatory 552, says that the property right of a private injunction be issued "requiring the defend- individual in his land is as much appropriatants to abate the nuisance of said round- ed by pouring upon it a flood of water as house and its running of said water over the by an actual taking of it for streets or buildlands of the plaintiff"; second, that a man- ings. Hitchens v. Mayor and City Council datory decree be passed "requiring the de- of Frostburg, 68 Md. 113, 11 Atl. 826. 6 Am. fendants to pay the plaintiff, in money, what-St. Rep. 422; Noonan v. City of Albany, 79 ever this court may find it has already suf- N. Y. 470, 35 Am. Rep. 540; Mayor, etc., of fered by the smoke and noxious fumes aris- Baltimore v. Merryman, 86 Md. 592, 39 Atl. ing from said roundhouse and the damage 98.

wrongs complained of were committed by | Md. 522, 33 Am. Rep. 325, where it was said: municipal corporations; but certainly individuals or private corporations can have no greater right, and will not be permitted to commit such wrongs and escape liability in so doing. The injury complained of is alleged to be a continuing one, in the commission of which the defendants may be restrained by a court of equity.

[2, 3] The right to recover damages for injuries resulting from smoke and noxious fumes, caused by the defendants, flowing over the lands of the plaintiff, similar to those alleged to have been suffered by the plaintiff in this case, has been passed upon by this court in a number of cases.

"The question is whether the nuisance complained of will or does produce the condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant." Fertilizer Co. v. Spangler, 86 Md. 562, 39 Atl. 270; Chappel v. Funk, 57 Md. 465; Adams v. Michael, 38 Md. 123, 17 Am. Rep. 516; Crump V. Lambert, L. R. 3 Eq. Cases, 409.

In the last case, which is approvingly quoted in Adams v. Michael, supra, and again in Fertilizer Co. v. Spangler, supra, his lordship said: "There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapor, or water, or any gas or fluid. The owner of one tenement cannot cause or permit to pass over, or flow into his neighbor's tenement, any one or more of these things in such a way as materially to interfere with the ordinary com

ment, or so as to injure his property." He also said: "The real question in all of the cases is the question of fact, viz. Whether the annoyance is such as materially to interfere with the ordinary comfort of human existence."

In the case of Susquehanna Fertilizer Co. v. Malone, 73 Md. 275, 20 Atl. 902, 9 L. R. A. 737, 25 Am. St. Rep. 595, where the evidence disclosed that noxious gases escaped from the factory used by the defendant for the manufacture of sulphuric acid and commercial fertilizers, and which gases, when driven by the winds on the premises of the plaintiff and his tenants, were so offensive and noxious as to affect the health of plain-fort of the occupier of the neighboring tenetiff's family, and at times to oblige them to leave the table, and to abandon the house, and that such gases also injured materially his property, discolored and injured clothing hung out to dry, stained the glass in the windows, and even corroded the tin spouting on the houses, the court held that the plain- There are many other cases to which we tiff was entitled to recover for the damages might refer in support of this principle; resulting from such injuries, and, in discuss- but we will content ourselves by referring ing the case, the court said: "We fully only to one other case, the recent case of the agree that, in actions of this kind, the law Belt R. R. Co. v. Sattler, 100 Md. 306, 59 does not regard trifling inconveniences; that Atl. 654. The evidence in that case discloseverything must be looked at from a reason-ed: That the plaintiff for many years lived able point of view; that, in determining the at No. 2619 N. Charles St., Baltimore, and question of nuisance in such case, the local- that he was the owner, at the time of the ity and all the surrounding circumstances institution of the suit, of the two lots of should be taken into consideration; and land the damage to which was the basis of that, where expensive works have been erect- the suit; one of these fronted 100 feet on ed and carried on, which are useful and Charles street immediately south of the open needful to the public, persons must not stand cut of the defendant's railroad, and ran back on extreme rights, and bring actions in re- a distance of 184 feet, the other fronted 50 spect of every trifling annoyance, otherwise feet on Charles street, with the same depth business could not be carried on in such as the first. That between these two lots was places. But still, if the result of the trade a lot of 50 feet fronting on Charles street, or business thus carried on is such as to in- with the same depth as the other lots, and terfere with the physical comfort, by anoth-upon which was situated the house in which er, of his property, or such as to occasion the plaintiff resided but did not own. The substantial injury to the property itself, there is wrong to the neighboring owner for which an action will lie. St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642."

And in the case of Euler v. Sullivan, 75 Md. 618, 23 Atl. 845, 32 Am. St. Rep. 420, where the court held the prayer upon this question was too general and misleading, it nevertheless approvingly quoted, as we have done, from the case just referred to, and stated that the principle there laid down was the established law of the state. It also quoted, with approval, from the opinion of

two lots owned by the plaintiff were used as a garden, and contained fruit trees, shade trees, walks, etc. That in the open cut of the defendant's road adjacent to the first lot named were two tracks, over which a great number of trains passed during the day and night. That, as soon as the trains came out of the tunnel into the open cut in front of his lands, they drew the smoke out of the tunnel, and it was cast upon his property, and vibrations were caused by the trains. The narr. alleged "that, by reason of said discharge of smoke and offensive and unwhole

by reason of the said noise and vibration as aforesaid upon plaintiff's said land, it is rendered far less desirable for dwelling or building purposes than it otherwise would be, and the plaintiff is deprived of the profits and advantages that would reasonably enure to him from the development and improvement of his said property, and the value thereof is seriously impaired," etc.

One of the pleas filed to this declaration was demurred to, which demurrer was sustained, the result of which was to hold that the declaration was sufficient. In that case the narr. alleged and the plea admitted that the plaintiff's property was damaged in the manner complained of. So in this case the demurrer to the bill admits that the plaintiff sustained the damages resulting from the alleged injuries mentioned in the bill; but by the demurrer the defendants contend that such injuries as alleged therein are not sufficient to entitle the plaintiff to recover. The court in that case held the narr. to be sufficient, and reiterated the principle laid down in the case from which we have quoted, that, "where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to a neighboring owner for which an action will lie."

the access to his property from said street, and prevent him from reaching the same with vehicles ordinarily used in Baltimore, and that such destruction of his right of access in the manner stated and the deprivation of light and air, as aforesaid, rendered the property unsalable, and deprived him of its market value, and constituted, in fact and in law, a taking of his property without compensation therefor, as required by the Constitution of the state of Maryland. In the opin ion delivered by Judge McSherry in that case he said: "The consequential damages resulting from the act complained of the incidental injuries to the owner-are thus charged to be a taking of private property for a public use, though the property itself remains unappropriated and unapplied to that use in any way whatever. Whilst the Constitution of the state has prohibited the taking of private property for a public use without compensation being first paid or tendered, it has not undertaken to define or declare what shall be a taking within its terms. True, there is some conflict among adjudged cases, as to what amounts to such a taking; but the overwhelming weight of authority accords with the conclusions which this court announced in the two cases of Mayor and C. C. of Cumberland v. Willison, 59 Md. 138 [33 Am. Rep. 304], and O'Brien v. Baltimore Belt R. R. Co., 74 Md. 363 [22 Atl. 141, 13 L. We have no difficulty in reaching the con- R. A. 126]. There is practically an clusion that an action at law will lie in this unbroken current of adjudged cases broadly case to recover damages resulting from the and clearly marking and defining the differinjuries suffered by the plaintiff from the ence between an incidental injury to and an smoke and noxious fumes flowing over its actual taking of private property. An injury lands, discharged from the roundhouse of to and a taking of such property are distinct the defendants, as alleged in its bill, if found things. Every taking involves an injury of to exist, as alleged therein. Belt R. R. Co. some kind, though every injury does not inv. Sattler, supra; Garrett v. Lake Roland clude a taking. 'Property is taken by an enElevated Ry. Co., 79 Md. 277, 29 Atl. 830, 24 try upon and appropriation of it, as in the L. R. A. 396; O'Brien v. Baltimore Belt Co., ordinary case of location. It is injured by 74 Md. 363, 22 Atl. 141, 13 L. R. A. 126. But obstructing access, as in Duncan's Case, 111 we have some difficulty in determining the Pa. 352 [5 Atl. 742], or drainage as in Ziequestion whether or not the injuries com- mer's Case, 124 Pa. 560 [17 Atl. 187.]' Jones plained of amount to a taking of the proper- v. Erie & W. V. R. Co., 151 Pa. 30, 25 Atl. ty under the constitutional provision here- 137 [17 L. R. A. 758, 31 Am. St. Rep. 722]. inbefore mentioned. If there is such a tak- ** * * The constitutional right to compening, there can be no doubt as to the plain-sation for private property taken for pubtiff's right to relief by injunction, as prayed lic use does not extend to instances where in the bill. There is much conflict of opinion the land is not actually taken, but only indiexpressed by the different courts of this coun- rectly or consequentially injured. Ottawa, O. try and text-writers as to what amounts to a C. & C. G. R. R. Co. v. Larson [40 Kan. 301, taking of property under the provisions of 19 Pac. 661] 2 L. R. A. 59; Omaha Horse the various Constitutions, the language of Ry. Co. v. Cable Tramway Co. [C. C.] 32 which is the same as or similar to the lan- Fed. 727; Heiss v. Milwaukee & L. W. R. Co., guage used in the Constitution of Maryland. 69 Wis. 555 [34 N. W. 916]; Grand Rapids & In Garrett v. Lake Roland Elevated Rail- I. R. R. Co. v. Heisel, 38 Mich. 62 [31 Am. way Co., supra, the appeal was from a decree Rep. 306]; Cosby v. Owensboro & Russeldismissing the appellant's bill of complaint, ville R. R. Co., 10 Bush. [Ky.] 289; Dorman in which he charged that the construction v. City of Jacksonville, 13 Fla. 545 [7 Am. of the abutment of solid masonry in the bed Rep. 253]; Bradley v. N. Y. & N. H. R. R. of North street and the elevated structure Co., 21 Conn. 308; Spencer v. P. P. & O. R would, by reducing the width of the street R. Co., 23 W. Va. 407; Richardson v. Verin front of the appellant's lots, deprive his mont Cent. R. R. Co., 25 Vt. 465 [60 Am.

Fifth Baptist Church, 108 U. S. 317 [2 Sup. | land of an individual with water is an invaCt. 719, 27 L. Ed. 739]."

In case of O'Brien v. Baltimore Belt R. R. Co., supra, referred to in Judge McSherry's opinion, Judge Alvey, speaking for the court, said: "It is not charged that there will be any invasion of or physical interference with any part of the plaintiff's lot in the construction of the road. The most that he claims for is that he will be deprived of the full use of the street, as it now exists, and that his property will be depreciated in value, by the construction of, the road. This, however, is but an injury, to whatever extent it may be suffered, of an incidental or consequential nature. * There is no such taking of private property for public use as is contemplated by the Constitution of the state."

sion thereof, and the fact that smoke, noise, and vapor caused the injury here can make no difference, certainly none in the right to recover."

Applying the principle enunciated in the case of Mayor and C. C. of Cumberland v. Willison, O'Brien v. Baltimore Belt R. Co., and Garrett v. Lake Roland Elevated R. Co., to the facts of this case, we are of the opinion that the injuries complained of do not amount to a taking under the Constitution provision above referred to, and we do not understand the case of Belt R. R. Co. v. Sattler as going so far as to hold that in that case there was a taking or invasion of the plaintiff's land. There the court was called upon to determine whether or not an action at law would lie to recover damages for the injuries there complained of. It was not necessary in that case for the court to determine whether there was a taking; the question there was his right to recover in an action for damages. And the court there held, as we hold in this case, if the facts alleged be shown to exist, that his right to recover in such action existed even though there was no invasion or actual taking of the land, and his right to recover was not dependent upon an actual invasion, but that he was entitled to recover for the incidental injuries there alleged, if shown to exist.

And Judge McSherry, in his opinion in the Garrett Case, after quoting from the O'Brien Case the language we have stated, said: "We must either adhere to these two decisions in 50 and 74 Md., strictly in accord, as we have shown them to be, with the decided weight of judicial opinion on this subject, or else, receding from them, adopt the Ohio or the New York doctrine. We see no reason for departing from or for modifying our former deliberate judgments." And so the court there held that the injuries complained of by the plaintiff in his bill were not such as amounted to a taking under the said Constitution provision, but decided that for such injuries [4] The roundhouse of the defendants, it as were there complained of, though they would seem, was necessary to the efficient did not amount to a taking of property, if operation of their roads, which were conthey were found to exist, there was a reme-structed under their charter powers granted dy in a court of law. Baltimore & Potomac R. R. Co. v. Reaney, 42 Md. 117; O'Brien v. Baltimore Belt R. R. Co., supra.

In the case of Belt R. R. Co. v. Sattler, supra, an action at law, and not a proceeding in equity, the facts of which case we have already fully stated, the court said: "If in view of our decisions it could be said that the injuries to the plaintiff's property do not amount to an actual invasion, does that fact exculpate the defendants? It is argued that the lawful act done in the Reaney Case for which there was a recovery resulted in an actual invasion, and that hence that case has no application here. But there are a number of other cases in which it has been held that a recovery may be had for consequential injuries caused by a lawful act even when there is 'no taking.' So that an action lies in both cases. Garrett's Case, 79 Md. 277 [29 Atl. 830, 24 L. R. A. 396]; Reaney's Case, 42. Md. 117; Lake Roland R. Co. v. Webster, 81 Md. 529 [32 Atl. 186], and other cases not necessary to cite. Why there should be any difference made in the right to recover if there is an actual invasion, and when the damage is only consequential, it is difficult to understand, for the damage, loss, inconvenience, and discomfort to the owner may be as great in one case as in the other. In Guest v. Church Hill, 90 Md. 689 [45 Atl.

to them by the state, and it is not alleged in the bill or its exhibits that it was located in such a place or constructed in such a manner as to amount to negligence on the part of the defendants, or that it is now or has ever been improperly or negligently operated, in consequence of which the injuries complained of were produced, or that, by a proper management and operation of the roundhouse, the smoke and noxious fumes complained of could, by proper care and diligence exercised on the part of the defendants, be eliminated. Therefore, under the decisions of this court, the maintenance of the roundhouse as complained of cannot be held to be a public nuisance (Poole v. Falls Road Ry. Co., 88 Md. 541, 41 Atl. 1069), entitling the plaintiff to the relief sought by way of injunction.

We have examined all the authorities to which we have been referred and many others in addition thereto, and we have found much conflict in the decisions of the courts of this country upon a number of the questions here involved; but we think the views we have here expressed are consonant with the decisions of this court establishing the law of this state in respect to such questions.

But, as we hold that the plaintiff is entitled to the relief prayed in respect to the injuries complained of by reason of the flow