Corbi v. Hendrickson

• Decision Date: 29 March 1973
• Docket Number: No. 197,197
• Parties: Lawrence A. CORBI et al. v. Ole HENDRICKSON et al.
• Court: Maryland Court of Appeals

Page 459

268 Md. 459

302 A.2d 194

Lawrence A. CORBI et al. v. Ole HENDRICKSON et al.

No. 197.

Court of Appeals of Maryland.

March 29, 1973.

W. Lee Harrison, Towson (Cooper C. Graham, Towson, on the brief), for appellants.

Austin W. Brizendine, Towson, for appellees.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

DIGGES, Judge.

While it is sometimes said that music has charms to soothe a savage beast, ¹ there are those who consider rock and roll music to be a savage beast that should be slaughtered or at least should be caged and controlled. This seems to be true of the appellees, four husbands and their wives, who own and occupy homes in Baltimore County near Reisterstown, Maryland. Because of the playing of what the appellees called 'loud and obnoxious noise and vibrations, sometimes referred to as 'rock and roll',' they filed a bill of complaint in the Circuit Court for Baltimore County against the appellants, Rose Corbi, her son Lawrence, and a corporation owned by them which, trading as the Squires Inn, operates a bar and restaurant located within 300 yards of each of the appellees' homes. By this complaint, these residents sought to have the appellants enjoined from causing 'this noise' to be unleashed from their nightclub so as to roam onto the appellees' properties and prey upon their senses. After a full hearing Judge John N. Maguire issued an order which permanently enjoined the appellants 'from the playing of loud noise upon their property in such a manner that the noise made by (them) is transmitted onto the properties of the (appellees), or any one of them, so as to deprive (them) and the members of their families, from the reasonable use and comfortable enjoyment of their respective homes.' In addition to an appeal from that decree, contained in the same record is a second appeal. This latter appeal followed a subsequent finding by Judge Maguire that the appellants were in contempt of court for violating the injunction.

The facts reveal that the appellees have owned and resided for many years in their homes located near Hanover Road and Mount Gilead Road about three and one-half miles north of Reisterstown. This area was described as rural with 'rolling country, very nice farms, well kept and interspersed with family housing.' It was considered by these residents as an ideal spot to live if you were 'looking for a place in the country where it would be quiet and (you) could enjoy country life and not be bothered by city noises and a lot of people'-an important consideration to many now in this time of ecological awareness. The appellees say that until recently they have enjoyed the advantages of tural living to their utmost-they have pursued such outdoor activities as badminton, picnics, parties, reading and relaxing outdoors, just sitting on the porch, or chatting with neighbors.

Although an inn has existed at the present site of the Squires Inn for a long time, until 1970, when the appellants acquired it, this was not a source of disquietude to the residents of the area; and very little despoiled the bucolic serenity appellees found themselves surrounded by for many years. The original inn operated as a family restaurant and continued to do so even after it obtained a liquor license. Except for an occasional reception or other special affair no music was played there. In 1970, the restaurant was sold and appellants established the Squires Inn. In lieu of the family restaurant, the appellees now have a rock and roll bar and nightclub as a near neighbor.

From its inception, the appellants began to engage rock bands and since that time such musical luminaries have performed there as Fain Moss, Smash, Appaloosa, Dryed Ice, Cryptic Image, and, appropriately enough, a group called Vibrations. ² These rock bands generally consisted of four pieces, often an organ, drums, lead guitar and bass guitar, and sometimes a vocalist. The groups, in addition to rehearsing during the afternoons, 'did their own thing' four or five evenings a week from 9:00 p. m. to 2:00 a. m.

The appellees variously described the sounds emanating from the inn as 'wailing', 'howling', 'repetitious', 'a penetrating boom', 'a thump', 'a kind of BOOM, BOOM, BOOM', or 'brr-ump, brr-ump, brr-ump'. These noises, which will 'drive through or penetrate everything so that you cannot get rid of it; you cannot hide from it', quickly shattered the residents' tranquility. The appellees found themselves unable to sleep, concentrate on work or study, or practice the piano-perhaps Beethoven. The appellees said that the rock music made it impossible to keep the windows open, or enjoy the outdoors; and, in fact, they were driven to distraction and tears because they could not escape this noise. One of the residents testified that the music hits her in the middle of her abdomen and sometimes when she is sitting in the bathtub she 'can hear the vibrations in (her) body.'

The appellees, whom the chancellor found to be individuals of exceptional integrity and intelligence, started to complain immediately after the nuisance began. They registered their protest not only with the owners of the Squires Inn but also by resort to the magistrate's court. When these efforts proved unsatisfactory, this suit was instituted. By this action, the appellees seek to have the playing of these loud and annoying noises stopped insofar as they interfere with the reasonable use and comfortable enjoyment of their homes. At no time have they sought to force the appellants out of business or halt the playing of the music entirely. Appellees do not even object to the playing of rock and roll music, they only want it confined so that it does not visit their homes.

The chancellor found as facts, and there is sufficient evidence to support his findings, all we have recited. And, on June 27, 1972 he fashioned a decree granting the requested relief. Appellees apparently are satisfied with this result, as they did not cross-appeal. Believing that the injunctive mandate had not been obeyed, on July 7, 1972 they filed a motion for citation of contempt alleging that the offending noises emanating from the inn had not ceased. After two hearings on the contempt citation, which included the taking of testimony and the receiving of a report of a county policeman who was dispatched at the court's request to visit appellees' homes and listen to the sounds, on August 27, 1972, Judge Maguire found appellants to be in contempt and fined them $1,000. However, the judge stated that there was a possibility that the money would be remitted in six months if there was future compliance with the injunction and no further complaints were lodged. From the granting of both the injunction and the finding that the appellants were in contempt for violating its terms, these appeals were noted.

Here, appellants raise three contentions in hope of obtaining a reversal of either the injunction, the finding of contempt, or both. First, the posit that the chancellor erred when he admitted into evidence, allegedly without a proper foundation, a tape recording made by one of the appellees of the type of music that was annoying them. Second, appellants argue that if the recording was admissible then Lawrence Corbi should have been permitted to testify about the results of a test he made in court using a decibel meter which showed that the volume of the voice of one of the appellees on the tape was far greater than the actual volume of her voice in court. Finally appellants urge that the chancellor erred when he held appellants to be in contempt.

Before we begin a discussion of these issues, we will quickly set forth the controlling law in this state regarding the enjoining of a noise nuisance. Appellants recognize, as well they must, the precedents in this state which permit such an injunction. And, in fact they are not questioning the authority of the court to fashion such relief or the form in which the injunction was framed. The law is clear in Maryland that though not a nuisance per se, any business so conducted as to become such may be enjoined. So, where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies at law or equity. The decisions of this Court, as well as the courts of our sister states, have recognized that the creation of excessive noise, though incidental to a proper business or recreational activity, may become a nuisance which can be abated. See, e. g., Carr's Beach v. Annapolis Roads, 222 Md. 392, 160 A.2d 598 (1960); Five Oaks Corp. v. Gathmann, 190 Md. 348, 58 A.2d 656 (1947); Swimming Club v. Albert, 173 Md. 641, 197 A. 146 (1938) and cases cited therein. See also Annot., Loud-Speaker as Nuisance, 23 A.L.R.2d 1289 (1952). In Albert, supra, 173 Md. at 646-647, 197 A. at 148, a case factually similar to the one now before the Court and which as here involved the creation of a nuisance by the playing of loud music, we stated that:

'Of greater interest are precedents relating to nuisances due to the creation of noises. From those we find that noise alone, if it be of such a character as to be productive of actual physical discomfort and annoyance to persons of ordinary sensibilities, may create a nuisance, and be the subject of injunction, though such noise may result from the carrying on of a...