Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp.

• Decision Date: 01 September 1991
• Docket Number: No. 1734,1734
• Citation: 607 A.2d 584,92 Md.App. 267
• Parties: FANTASY VALLEY RESORT, INC. v. GAYLORD FUEL CORPORATION d/b/a Gaylord Stone Company. ,
• Court: Court of Special Appeals of Maryland

Page 267

92 Md.App. 267

607 A.2d 584

FANTASY VALLEY RESORT, INC. v. GAYLORD FUEL CORPORATION d/b/a Gaylord Stone Company.

No. 1734, Sept. Term, 1991.

Court of Special Appeals of Maryland.

June 2, 1992.

Certiorari Denied October 23, 1992.

Warren K. Rich and Douglas S. Brossman (Graham & James on the brief), Washington, D.C., for appellant

Robert H. Reinhart (Walsh, Walsh & Reinhart, Cumberland) and W. Dwight Stover (Stover & Sherbin, Oakland, on the brief), for appellee.

Argued before MOYLAN, ROSALYN B. BELL and HARRELL, JJ.

ROSALYN B. BELL, Judge.

This appeal is yet another chapter in an ongoing battle between neighbors that began almost 20 years ago. Appellant, Fantasy Valley Resort, Inc. (Fantasy Valley), operates a "get-away" vacation spot for various corporate, religious, and other organizations. Appellee, Gaylord Fuel Corp. (Gaylord), mines an open-face limestone quarry on adjacent property. Over the years, Fantasy Valley sought to stop Gaylord from mining the quarry, contending that Gaylord's operations constitute a nuisance. Fantasy Valley complained that flyrock, ¹ noise, and vibrations from blasting operations at the quarry and dust from the movement of limestone out of the quarry has interfered with the use and enjoyment of the resort, and amounts to a trespass on its land. On August 28, 1991, the Circuit Court for Garrett County issued a permanent injunction, barring Gaylord from operating its quarry business on the property except in accordance with specific requirements outlined in a mining plan submitted to the court on July 25, 1991. Fantasy Valley has appealed, contending:

--the trial court erred by allowing the continuation of occasional deposits of flyrock to be thrown onto the Fantasy Valley property from the Gaylord quarry;

--the mining plan incorporated into the trial court's Order of Injunction fails adequately to abate or curtail the continuing trespass and private nuisance which has resulted from operations at the Gaylord site;

--the injunction issued by the trial court lacks sufficient specificity to ensure abatement of continuing trespass and private nuisance; and

--

the trial court's injunction order improperly incorporated by reference other documents in violation of Rule BB78.

We affirm and explain.

THE FACTS

In 1964, Robert M. Leatherbury purchased an interest in an 80-acre farm in rural Garrett County. He acquired the other outstanding interests in the property in 1965 and 1975. The property originally included only a barn and a farm house. Over the years, Leatherbury improved the property, constructing cottages, an eight-unit motel, an "Old West Saloon," a tennis court, trout ponds, a swimming pool, and a Western-style chapel. This became the Fantasy Valley Resort.

Gaylord Fuel Corp. acquired 33.06 acres adjoining Leatherbury's property in 1973 and an additional adjacent parcel of 11.24 acres in 1975. Gaylord sought and received permits from Garrett County for removal of surface soil for open-face limestone quarrying, and from the Department of Health and Mental Hygiene to install and operate limestone crushing and air pollution control equipment in 1973.

Leatherbury filed suit in late 1973 against Gaylord, seeking to enjoin the proposed quarry operation which had not yet begun to function. In Leatherbury v. Peters, 24 Md.App. 410, 332 A.2d 41 (1975), this Court upheld an order of the trial court dismissing Leatherbury's bill of complaint against Gaylord as being premature. The Court of Appeals affirmed, without prejudice to any future action by Leatherbury after the quarry was in operation. Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 377, 347 A.2d 826 (1975).

Quarrying operations began in 1974 on the Gaylord property. Blasting procedures were conducted to remove limestone from the face of the quarry and the stone was then crushed, graded and hauled from the site. The last blasting operations were logged in 1985. After 1985, blasting was curtailed and then halted due to a decline in the limestone During this time, Fantasy Valley Resort faltered and Richard Chaney, a long time friend of Leatherbury's, purchased a one-half interest in the real estate and personal property. Chaney is currently the principal in the Fantasy Valley Resort corporation. Mary Pepin Kidd, the personal representative of Leatherbury's estate, filed suit with Chaney against Gaylord on August 4, 1986. Fantasy Valley's complaint alleged an action in trespass and nuisance. The complaint sought damages resulting from the trespass and nuisance to Fantasy Valley property from past blasting and day-to-day activities at the Gaylord quarry. Fantasy Valley also sought a permanent injunction against future quarrying activities.

                market.   The present suit was initiated after Gaylord expressed its intention to resume blasting operations
                

Trial on the issues was held on May 16-18, 1990. By memorandum dated June 29, 1990, the trial court found that Gaylord's quarry operations constituted a continuing trespass and private nuisance upon the property of Fantasy Valley. The court entered judgment in favor of Fantasy Valley in the amount of $1.00 for continuing trespass and $1.00 for private nuisance. The court delayed entry of final judgment, however, to allow subsequent findings regarding an injunction of Gaylord's activities. The court held two subsequent hearings to address appropriate parameters to be included in the permanent injunction on Gaylord's quarry operations. At the conclusion of both hearings, the court concluded that Gaylord had failed to provide a plan which would adequately abate the continuing trespass and private nuisance to Fantasy Valley.

On June 13, 1991, Gaylord submitted a third mining plan to the court. By letter dated July 24, 1991, Fantasy Valley submitted to the court its objections prepared by its expert to the mining plan. The court, by order dated August 28, 1991, issued the permanent injunction.

On September 19, 1991, Fantasy Valley filed this appeal. On January 13, 1992, Fantasy Valley also filed a Motion for

                Stay of Judgment due to Gaylord's continued quarry operations.   The Motion for Stay of Judgment was heard on March 11, 1992.   In that March 11 hearing, the trial judge denied Fantasy Valley's request to modify the previous judgment
                

THE INJUNCTION

Fantasy Valley first complains that the trial court erred by allowing the continuation of blasting at the Gaylord property which, in turn, might allow occasional deposits of flyrock to be thrown onto the resort property. What Fantasy Valley is really arguing, however, is that the trial court's injunction did not go far enough and grant it all of the relief it requested, namely, to shut down Gaylord's quarrying operation.

As a general rule, the decision to grant or deny an injunction in an appropriate case is a discretionary one. The exercise of discretion by the trial court will not be disturbed on appeal absent a showing that discretion has been abused. Seci, Inc. v. Chafitz, Inc. 63 Md.App. 719, 725, 493 A.2d 1100 (1985). An injunction is an extraordinary remedy. In Campbell v. Mayor of Annapolis, 44 Md.App. 525, 536-537, 409 A.2d 1111, reversed in part, 289 Md. 300, 424 A.2d 738 (1980), this Court said, quoting Whalen v. Dalashmutt, 59 Md. 250, 252 (1883):

" '[I]t is a well settled principle in the practice of injunction, that where a defendant asserts positively that it is not his intention to do a certain act, or to violate any particular right asserted by the plaintiff, and there be no evidence to show to the contrary, the Court will not interfere by injunction. It will neither grant nor continue an injunction in the face of such disclaimer.' "

To enjoin a nuisance on adjoining property, the landowner must show "that the injury is of such a character as to materially diminish the value of his property and seriously interfere with the ordinary comfort and enjoyment of it." Leatherbury, 276 Md. at 377, 347 A.2d 826. A business may be enjoined if it is operated in a manner that creates a nuisance to neighboring property. Corbi v. Henderson, 268 Md. 459, 464, 302 A.2d 194 (1973). In Corbi, 268 Md. at 464, 302 A.2d 194, the Court of Appeals held:

"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, ... may become a nuisance which can be abated."

In the instant case, in its memorandum of June 29, 1990 with respect to damages, the trial court wrote:

"There were at least nine blasts at the Gaylord quarry after August 4, 1983, one of which was described by Mary Kidd and referred to earlier. No evidence was presented which quantified the damages caused by the blasting after August 4, 1983, or, indeed, even before that date. There simply was no evidence of any diminution of property value; there was evidence that customers left the resort early but no evidence of the amount of economic loss to the business. There was evidence that Mary Kidd and others were frightened by the blasts and that some trees were damaged by fly rock, but no value was assigned to the loss of the trees. There was evidence that the resort was required to employ extra help to clean up after the blasts because of dust and smoke, but there was no evidence of the cost of that help. None of the evidence of injury or fright was apportioned to events after August 4, 1983."

With respect to the injunction, the court wrote:

"It would appear that while the use of general regulatory language is permissible, if not preferred, Bishop Processing Co. v. Davis, 213 Md. 465 (1957); Five Oaks [Corp. v. Gathmann, 190 Md. 348, 58 A.2d 656 (1948) ],...