Beane v. McMullen, 323

• Decision Date: 18 May 1972
• Docket Number: No. 323,323
• Citation: 291 A.2d 37,265 Md. 585
• Parties: Eugene C. BEANE, Sr. et ux. v. Stephen McMULLEN et al.
• Court: Maryland Court of Appeals

Page 585

265 Md. 585

291 A.2d 37

Eugene C. BEANE, Sr. et ux. v. Stephen McMULLEN et al.

No. 323.

Court of Appeals of Maryland.

May 18, 1972.

Henry F. Leonnig, Upper Marlboro, for appellants.

Kenneth E. Pruden, Upper Marlboro, for appellees Stephen McMullen and others.

Glenn B. Harten, Associate County Atty. (Walter H. Maloney, Jr., County Atty. and Dennis A. Laskin, Associate County Atty., on the brief), for appellee Prince George's County.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, ^* SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

Five principal questions are presented by the appellants, Eugene C. Beane, Sr. and Mary Beane, his wife, plaintiffs below, to us for decision, i. e., whether the Circuit Court for Prince George's County (Robert B. Mathias, J.) erred in granting the motion of Stephen McMullen and Virgie McMullen, his wife, two of the appellees and two of the defendants in the lower court, for a directed verdict in their favor at the end of the case in regard to the claims of the plaintiffs for (1) an alleged invasion of privacy, (2) interference with the pursuit of business by the plaintiff, Eugene C. Beane, Sr., (3) the slander of the plaintiffs' title by the McMullens, (4) the dismissal of the counterclaim of the Beanes to the McMullens' counterclaim in regard to water damage and (5) the sufficiency of the injunctive relief granted the Beanes in regard to water damage caused by the Board of County Commissioners for Prince George's County, the remaining appellee and a cross-defendant below. We have concluded that there was no error in the lower court's rulings in regard to the first four questions but that there was error in its ruling in regard to injunctive relief.

The Beanes and the McMullens own adjacent property in the Melwood Election District in Prince George's County partly on the Ritchie-Marlboro Road not far from Upper Marlboro. They acquired their respective properties in 1956 from a common owner. The adjoining line of each property is substantially identical, being the second call in each deed. The call in the McMullen deed is 'to an iron peg, thence on center line of old Forestville-Oak Grove Public Road (2) S 66 45 E 763.62 Ft. to an iron peg.' The second call in the Beane deed is 'to an iron peg, thence with Stephen McMullen's 4.14 acre parcel, thence (2) South 66 45 East 763.2 feet to an iron peg. . . .' A survey of B. J. Dirks, referred to in both deeds and attached to the Beane deed, shows the adjoining line as the center line of the Old Forestville-Oak Grove Road and as being a straight line. The testimony, however, indicated that the roadbed curved. This old roadbed has been closed and unused for approximately 30 to 35 years.

The Beanes first moved to their property in 1956 between Christmas and New Year. The McMullens moved to their property somewhat later. There was a friendly relationship between the neighbors initially. Mr. Beane, in return for a promise given by Mr. McMullen to supply water for rabbits raised by Mr. Beane and sold for experimental purposes, assisted Mr. McMullen to locate and construct a well for a spring on the McMullen land which was making that land swampy. He also assisted Mr. McMullen in lowering a pipe under what is presently known as Bauman Road. A water pump was installed and a substantial water supply resulted, used by Mr. McMullen for azaleas raised and sold by him, and by Mr. Beane for his 250 rabbits.

Later, Mr. McMullen desired to build a dwelling house on his land and requested that Mr. Beane convey to him a portion of his frontage inasmuch as McMullen was having difficulty in obtaining a mortgage through the bank with only 40 feet of frontage. Mr. Beane indicated his willingness to do this if the consent of his mortgagee to the proposed arrangement could be obtained. The mortgagee was agreeable to the proposal provided there was an equal exchange of back land by the McMullens to make the Beane land more regular in shape. When Beane told McMullen what the mortgagee said, McMullen, in an hour's time, cut off Beane's water supply so that there was no water for the rabbits. After this episode, there were no friendly relations between the Beanes and the McMullens.

Mr. Beane had been in the fuel oil business for some 35 years. In the fall of 1958, he began to work for the Temple Hills Oil Company. He worked for this company until 1964 when he went into the fuel oil business for himself.

On April 24, 1961, the Zoning Ordinance for Prince George's County became effective for most of the County. The Beane and McMullen properties were placed in the R-R zone (Rural Residential). A nursery business was allowed in the R-R zone and there were provisions permitting the continuance of nonconforming uses to which reference will be made later.

According to Beane, Mrs. McMullen began making complaints to county officials in 1965 concerning his parking of oil trucks and dumping fill. He estimated that there had been 50 investigations since that time but he gave no details concerning them except in regard to the following specific complaints.

Mrs. McMullen, in a letter dated 'April 1969' addressed to the County Commissioners of Prince George's County, stated that she had a problem to which she had been trying to find a solution, i. e., in regard to the situation on the neighboring Beane property. She stated that Mr. Beane had put a discarded water heater, an old washing machine and other debris on his lot which caused the water to stand in a stagnant form with green mold. She had communicated with the Public Works Department (Mr. Marburger's office) and was promised that there would be an inspection but none had occurred. She also stated that there was an unfinished house on the Beane property, that the property was used for business although never posted or zoned for business use, and further that she understood that occupancy permits for one-family use under the zoning law would be soon required after inspection-a procedure which she approved '100%.' She hoped the County would 'look into the matter and help me clear up my problem.'

On May 13, 1969, Mr. McMullen wrote to the County Commissioners, complaining about the depositing of debris on the Beane property and stagnant water. He expressed the hope that the County would send someone out to 'view this problem' inasmuch as it is difficult to visualize the situation without personal inspection.

The County Commissioners wrote to Mrs. McMullen in June 1969 advising that the Department of Public Works and the Bureau of Urban Services had inspected and were inspecting the Beane property. Mrs. McMullen, on September 30, 1969, not having been advised in regard to the results of the investigations, wrote to the County Commissioners, indicating that although she was grateful that the investigation had been made, she thought that three months was sufficient time within which to complete it and she hoped that the problem could be solved 'before the winter snows * * * add to the condition.'

On October 7, 1969, an inter-office memorandum of the County indicates that as a result of the letter of September 30, 1969, Mr. Jones and Mr. Sabona, Refuse Collections Supervisor of the Department of Public Works, had 're-investigated this situation in the field on Friday, October 3, 1969. ¹ ' The memorandum then continued in part:

'This inspection confirmed that there was indeed some bulky items of refuse located in the drainage ditch on Mr. Beane's property as shown on the enclosed sketch. This trash consists of one washing machine, two hot water tanks, one car seat, one stove and some miscellaneous wood. The items are located at the toe of the drainage channel which is approximately 25 deep. These items are not blocking the natural drainage or the flow of water contributed by the County storm drainage system from Sansbury Road. Obviously, they should be removed. However, to do so by the home owner would cost a considerable amount of money since a crane is needed to lift the items to road bed or truck height.

'Mr. Beane indicated that he would prefer to fill the drainage channel, thereby covering the discarded items which, of course, would not only be cheaper but improve his property. Such action would block the flow of storm water and require the County to expend a large sum of money to extend the storm drain system from Sansbury Road along Ritchie-Marlboro Road. * * *'

Apparently as a result of the McMullen complaint of November 13, 1969, the Maryland-National Capital Park and Planning Commission considered the zoning situation at the Beane property. It ruled that Beane was in violation of the zoning ordinance in using the property for commercial purposes, in having fuel oil tanks and in parking fuel oil trucks on the Beane property. Beane appealed the decision to the Board of Appeals for Prince George's County. On January 27, 1970, that Board affirmed the Park and Planning Commission in regard to keeping the oil tanks on the property but reversed it in regard to the parking of oil trucks, finding from the evidence that Beane had established a valid nonconforming use for parking the trucks.

In March 1970 Mrs. McMullen wrote a letter to Congressman Lawrence J. Hogan, reviewing the prior efforts to obtain action by the County, without much success (according to Mrs. McMullen), stating the water problem and the presence of 3 families on the Beane property. She requested Congressman Hogan (for whom Mrs McMullen stated she had voted) to help solve her problem.

Congressman Hogan promptly wrote to the County's Supervisor of Zoning on March 4, 1970. He reviewed the McMullen complaints and inquired whether (1) a person could operate an oil business in the area, (2) could three families live in the Beane dwelling, and (3) could the owner of the Beane property be made to complete the house?

After investigations by the Housing Coordinator and possibly others, the Chief Zoning Inspector...