her right under the contract, even though not bound to perform on her part. Matthes v. Wier, 84 Atl. 878. Inasmuch, however, as part of the purchase money has actually been paid, the complainant is entitled to have it repaid to her.

For the reasons above stated, the bill must be dismissed, and the costs imposed on the complainant, but on application of the complainant the decree will contain a provision that it will not be effective as to Florence Kierski until she has repaid, or tendered, to the complainant the portion of the purchase money paid by the complainant. Let a decree be entered accordingly.

The reasonableness of the time depends on | part, she would have been entitled to enforce the circumstances of each case, and is to be judged as of the date when given. It is also said that notice must be explicit to the effect that the contract will be terminated if not completed within the time set. Reynolds v. Nelson, 6 Madd. 60 (56 Eng. Reprint, 817). | Even if the time be unreasonable, the giving of the notice imposes on the vendee a duty to act promptly. Chabot v. Winter Park, 34 Fla. 258, 15 South. 756, 43 Am. St. Rep. 192; Rogers v. Saunders, 16 Me. 92, 33 Am. Dec. 635. Notice was given by the vendor to the vendee on August 11th and again on August 12th that the failure of the vendee to pay the purchase money would cause a termination of the contract. Under the circumstances such notice was reasonable and at least imposed on the vendee the duty to extra diligence. Therefore, because of the notice and her failure to perform according thereto, the vendor had a right to terminate the contract on August 13th.

[4] It is also urged by the defendant that the receipt constituted a unilateral contract, binding only on the vendor and not on the vendee, and the latter was therefore bound to be ready on the date fixed for payment by her, or, at least, at the subsequent date fixed by the indulgence of the vendor. There are authorities which hold that time is essential where there are not mutual remedies, or the contract is unilateral; as for instance, where the contract is signed only by the person to be charged. Here the other party is not bound, and there is some reason for holding that the one not bound must fulfill on his part according to the contract. Pomeroy's Equity Jurisprudence, § 1048, and note; Fry on Specific Performance, § 733; Brooke v. Garrod, 3 Kay & J. 608; s. c. 2 De G. & J. 62; Austin v. Tawney, L. R. 2 Ch. 143; Potts v. Whitehead, 20 N. J. Eq. 55; Jones v. Noble, 3 Bush (Ky.) 694; Mason v. Payne, 47 Mo. 517; Estes v. Furlong, 59 Ill. 298, 300; Stembridge v. Stembridge, 87 Ky. 91, 7 S. W. 611; Harding v. Gibbs, 125 Ill. 85, 17 N. E. 60, 8 Am. St. Rep. 345; Magoffin v. Holt, 62 Ky. (1 Duv.) 95; Keffer v. Grayson, 76 Va. 517, 44 Am. Rep. 171; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749; Phipps v. Munson, 50 Conn. 267; Clarno v. Grayson, 30 Or. 111, 46 Pac. 426; Westerman v. Mearns, 12 Pa. 97; Miller v. Cameron, 45 N. J. Eq. 95, 15 Atl. 842, 1 L. R. A. 554.

(122 Md. 236) NORTHERN CENT. RY. CO. et al. v. OLDENBURG & KELLEY, Inc.

(Court of Appeals of Maryland. Jan. 14, 1914.) 1. EMINENT DOMAIN (§§ 271, 273*)—“TAKING OF PROPERTY"-WHAT CONSTITUTES TAKING. The continuous discharge of a stream of water from a railroad roundhouse on adjoining property was a taking of such adjoining property within the constitutional provision that private property shall not be taken for public use without compensation, and entitled the adjoining owner to damages, and an injunction restraining further like injuries.

[Ed. Note.-For other cases, see Eminent Do752, 754-764; Dec. Dig. §§ 271, 273.*] main, Cent. Dig. 88 725-736, 741, 743-749, 2. NUISANCE (§ 3*)—WHAT CONSTITUTES NUI

SANCE-POLLUTION OF ATMOSPHERE.

Where the atmosphere in the vicinity of a and noxious fumes, dust, soot, and gases from railroad roundhouse was impregnated with smoke the roundhouse, so that it would corrode materials, weaken and finally destroy paint films and fabrics, and irritate the respiratory organs, ger to health, an owner of nearby property was causing serious inconvenience and positive danentitled to damages resulting from the injuries caused thereby.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*1 3. EMINENT DOMAIN (§ 276*)

"TAKING OF PROPERTY"-POLLUTION OF ATMOSPHERE. The injuries caused to such nearby property from such smoke and fumes was an incidental or consequential injury, and not a taking of hibiting the taking of private property for pubproperty within the constitutional provision prolic use without just compensation, and hence the owner was not entitled to an injunction against the operation of the roundhouse. main, Cent. Dig. § 774; Dec. Dig. § 276.*] [Ed. Note.-For other cases, see Eminent Do4. RAILROADS (8 222*)-WHAT CONSTITUTES

NUISANCE-POLLUTION OF ATMOSPHERE.

Where it did not appear that a railroad The principle seemingly established by roundhouse which impregnated the atmosphere these and other cases seems to be reasonable. with smoke and noxious fumes, and which was constructed under the charter powers granted to At least, it is true, that in cases of unilat- the railroad by the state, and was necessary to eral contracts the party not bound thereby is the efficient operation of its road, was located held strictly to extreme diligence in perform-in such a place or constructed in such a manner Ing the contract. In the case under consider-erly or negligently operated, or that, by proper as to amount to negligence, that it was impropation, such diligence is clearly wanting, without sufficient excuse or justification therefor. It is not meant, however, that the contract

is not enforceable because of a want of mutuality, for if the vendee had performed her

management and operation, such smoke and noxious fumes could, by proper care and diligence, be eliminated, its maintenance could not be enjoined as a nuisance.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 720-724; Dec. Dig. § 222.*]

Appeal from Circuit Court, Baltimore, was, on the 23d day of March, 1910, the ownCounty, in Equity; Wm. H. Harlan, Judge.

"To be officially reported."

er in fee simple and in possession of a large tract of land at Highlandtown, in the Twelfth

Bill in equity by Oldenburg & Kelley, In-election district of Baltimore county. On corporated, against the Northern Central Railway Company and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

that day the appellee company conveyed a portion of said lot of land to one Samuel C. McFarland, who, on the 2d day of December, 1910, conveyed the same to the appellants,

The following is the plat referred to in the the Northern Central Railway Company and opinion:

the Philadelphia, Baltimore & Washington

Argued before BOYD, C. J., and BRIS- | Railroad Company, and these companies, toCOE, BURKE, PATTISON, URNER, gether with the Pennsylvania Railroad ComSTOCKBRIDGE, and CONSTABLE, JJ.

Shirley Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellants. John Holt Richardson and Thomas G. Hayes, of Baltimore, for appellee.

PATTISON, J. As alleged in its bill, the

pany, the other appellant named, constructed thereon a large building known as a roundhouse, which is described in one of the plaintiff's exhibits filed with its bill as the place where the locomotives, after they have made a trip, are brought for the purpose of cleaning the grates, tubes, and front end of the

cleaned, the engine is prepared for a new run by starting a new fire in the engine.

|

both of the plaintiff and defendants, mentioned in these proceedings, which the reporter is asked to insert in his report of this case. It will be seen by the plat that the land owned by the plaintiff, both before and since the acquisition by the defendants of the lot upon which the roundhouse is located, was, and is, very nearly surrounded by the lands owned by several different rail

vicinity. The eighth is a report to the plaintiff by Penniman & Browne, chemists, of examinations or tests made by them of the atmosphere, the first in their laboratory, 215 E. Fayette street, Baltimore city, and the others, six in all, made at different times and places upon said lands of the plaintiff and the nearby lands of others.

It is alleged by the plaintiff: That it, "at large cost to itself, had improved, before and after the building of said roundhouse and its use as aforesaid, its land by handsome dwelling houses, many of which it leased or rented to sundry persons, and retained the ownership of the other of said houses to itself," and "that continually since the con-road companies operating their roads in that struction and use of said roundhouse by the defendants there has been discharged from the smokestacks of said roundhouse, coming from the locomotives' engines, some 20 in number, smoke and noxious fumes, destructive of plaintiff's grass, vegetable matter, and trees, as well as destructive of parts of said houses of the plaintiff, and cotton fabrics of tenants when exposed to said fumes, and, in addition to the aforesaid injury to property, said noxious fumes affect the health of tenants of plaintiff when exposed to said fumes, causing coughing and inflammation and irritation to the respiratory organs. That the effect of said smoke and noxious fumes proceeding from said roundhouse of defendants is to destroy the value of said houses as dwellings, and renders them untenantable, of no value as dwelling houses. That the said public nuisance caused by said smoke and noxious fumes as aforementioned is continuous when the wind blows from a certain quarter, and inflicts on the plaintiff and its tenants the special damages, as aforesaid." That the condition of the atmosphere produced by the said smoke and noxious fumes discharged from the roundhouse of the defendants "render the property, the land improved and unimproved, of the plaintiff adjacent to said roundhouse valueless, untenantable, and without market value."

It is also alleged by the plaintiff that, "in addition to the continuing nuisances" aforesaid, "the defendants caused, since the construction of said roundhouse, continually to flow upon the said land of the plaintiff, from its roundhouse, a stream of hot water, which has made a deep ditch or ravine in said land of the plaintiff, and, by undermining the support of the bridge of the said land of the plaintiff, has washed away said bridge."

To correct the alleged wrongs complained of, the plaintiff filed its bill, alleging therein, in substance, the facts as we have stated them, and with it filed eight exhibits. The first, second, third, and fourth are copies of deeds by which the plaintiff acquired title to the entire tract of land owned by it. The fifth is a copy of a deed from the plaintiff to McFarland conveying unto him that portion of the entire tract which is now owned by the defendants. The sixth is a copy of deed from McFarland to the defendants conveying said land unto them. The seventh

It was shown by the analysis so made by said chemists upon the property of the plaintiff and others near or adjacent to the roundhouse that the atmosphere at such times and places was largely impregnated with sulphuric acid, varying in amount at different times and places as a result of the varying conditions of the wind and weather; and it was found by said tests that the quantity of sulphuric acid in the atmosphere at or near the roundhouse was much greater than in the atmosphere of the laboratory, and this difference of quantity is ascribed by the chemists as due to the conditions produced by the fumes and smoke, etc., from the roundhouse. As the chemists state in their report, in order to make the result of their tests or examinations "readily comparable," they adopted as the unit of measurement the amount of sulphur dioxide present in 374 cubic feet, the amount of air used or consumed by one person for respiration in 24 hours. Their first experiment, made in their laboratory on October 22, 1913, showed the presence of .024 grain of sulphur dioxide per 374 cubic feet. The second experiment, made on the 28th and 29th of the same month, at a house of the plaintiff situated to the southwest of and approximately 200 yards from the roundhouse, with the wind blowing from the roundhouse towards the apparatus for one hour and a quarter, showed the amount of sulphur dioxide present in the atmosphere at such point, for such time, to be 75 times the usual amount, and for the whole 24 hours, including the hour and a quarter we have mentioned, the result showed a presence of .117 grain of sulphur dioxide per 374 cubic feet. The third experiment was made at Mr. Funk's house at the corner of Philadelphia Road and Eleventh street, directly north of the power house of the Pennsylvania Railroad Company; the wind was blowing from the northeast, and later blew from the east. The result showed .049 grain of sulphur dioxide per 374 cubic feet, twice the usual amount. Experiment 4 was made at No. 138 Tenth street. The wind was

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 relief. 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 sixth experiment was lost on account of high winds overturning the apparatus. The seventh 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.plained of, and no irreparable damage with 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.

The report of the chemists states that the effect of diluted sulphuric acid upon iron, tin, copper, and zinc is to corrode them, and 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 urged against the bill, to use the language of the defendants, found in the brief, that "the plaintiff has not shown by 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, com

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."

[1] We will first consider this objection in relation to the alleged injuries suffered by the plaintiff by reason of the water flowing upon and through its land, as alleged

in the bill.

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 compensa

tion.

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 mon- Green 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 lands of the plaintiff"; second, that a mandatory decree be passed "requiring the defendants to pay the plaintiff, in money, whatever this court may find it has already suffered by the smoke and noxious fumes arising from said roundhouse and the damage

by an actual taking of it for streets or buildings. Hitchens v. Mayor and City Council of Frostburg, 68 Md. 113, 11 Atl. 826, 6 Am. St. Rep. 422; Noonan v. City of Albany, 79 N. Y. 470, 35 Am. Rep. 540; Mayor, etc., of Baltimore v. Merryman, 86 Md. 592, 39 Atl. 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