Goldstein v. Potomac Elec. Power Co.

• Decision Date: 21 August 1979
• Docket Number: No. 4,4
• Citation: 285 Md. 673,404 A.2d 1064
• Parties: , 13 ERC 1611, 19 A.L.R.4th 442 Joseph I. GOLDSTEIN et al. v. POTOMAC ELECTRIC POWER COMPANY. Misc.
• Court: Maryland Court of Appeals

Page 673

285 Md. 673

404 A.2d 1064, 13 ERC 1611, 19 A.L.R.4th 442

Joseph I. GOLDSTEIN et al. v. POTOMAC ELECTRIC POWER COMPANY.

Misc. No. 4.

Court of Appeals of Maryland.

Aug. 21, 1979.

Stephen D. Annand, Alexandria, Va. (Geoffrey Judd Vitt and Cohen, Vitt & Annand, P. C., Alexandria, Va., B. Michael Rauh and Landis, Cohen, Singman & Rauh, Washington, D. C., and Ernest F. Henry, Washington, D. C., on the brief), for appellants.

Hal C. B. Clagett, Upper Marlboro (Nicholas D. Ward and Thomas E. O'Dea, Washington, D. C., on the brief), for appellee.

Argued Jan. 28, 1978 before MURPHY, C. J., and SMITH, ELDRIDGE, ORTH and COLE, JJ.

Reargued Feb. 2, 1979 before MURPHY, C. J., and SMITH, ELDRIDGE, COLE and DAVIDSON, JJ., RIDGELY P. MELVIN, Jr., and ALAN M. WILNER, Special Judges.

MURPHY, Chief Judge.

Pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States Court of Appeals for the Fourth Circuit has certified for our consideration the following question of state law:

"Where a nearby landowner seeks past, present and prospective damages for injuries to his property, measured by the diminution in its market value, from a public utility company whose operations allegedly have caused, are causing, and will cause daily air and noise pollution, is plaintiff barred by reason of Ann.Code of Md., Cts. & Jud.Proc., § 5-101, from bringing suit more than three years from the date that the landowner alleges that the injuries commenced?"

The statement of relevant facts, as set forth by the certifying court, discloses that in 1964 the Potomac Electric Power Company (Pepco) commenced operating its Chalk Point electric generating station at Aquasco, Prince George's County, Maryland. At that time, Joseph and Shirley Goldstein owned a 500-acre tract of land located across the Patuxent River from Chalk Point at a distance of approximately two miles. In 1967, the Goldsteins purchased an additional 1100-acre tract located three-tenths of a mile from Chalk Point. They sold this property the same year to Star Enterprises, Ltd., a corporate enterprise wholly owned by them.

On November 21, 1974, the Goldsteins and Star (hereinafter the appellants) instituted a civil action for damages and injunctive relief in the United States District Court for the District of Columbia, alleging that air, water and noise pollution emanating from Pepco's Chalk Point plant constituted an actionable nuisance under the common law of Maryland and that Pepco was negligent in failing to install state-of-the-art pollution control equipment. The appellants subsequently withdrew their claims for damages based on water pollution and on negligence, thus alleging an actionable nuisance only from air and noise pollution. On March 5, 1975, the case was transferred for trial to the United States District Court for the District of Maryland.

The appellants alleged in their complaint that the damage to their properties began when the Chalk Point station commenced operations and was aggravated when the size of the plant was expanded at later dates. The parties stipulated that Unit No. 1 of the Chalk Point plant became operational in 1964, Unit No. 2 in 1965 and Unit No. 3 in 1975. It was also stipulated that the level of the alleged particulate pollution emanating from the plant has not been significantly greater since November 21, 1971 (the date three years prior to the filing of the suit) than it was before that date.

Pepco moved for summary judgment asserting that Maryland's three-year statute of limitations, § 5-101 of the Courts Article, barred appellants' cause of action since it provided that:

"A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced."

By the time Pepco's motion for summary judgment was before the District Court for determination, the appellants had limited the relief requested to permanent damages, I. e., monetary relief in an amount equal to the diminution in market value of their properties as a result of air and noise pollution caused by Pepco's Chalk Point operations.

Pepco argued before the District Court that if its plant constituted a nuisance, the nuisance was permanent and became permanent prior to November 21, 1971 three years before the filing of the appellants' suit. Pepco contended that since the alleged nuisance was permanent, the appellants' cause of action arose when the Chalk Point station was placed in operation, and since the appellants failed to institute suit within the three-year limitations period, the action was barred by § 5-101 of the Courts Article.

The appellants did not dispute Pepco's assertion that the operation of the Chalk Point plant, if a nuisance at all, was permanent. They contended that the nuisance, though permanent, was an ongoing activity which damaged their properties on a continuing basis, and consequently their cause of action should be barred only if the nuisance continues for the prescriptive rights period of twenty years. ¹ Under this theory, it was argued that while § 5-101 may limit past damages from "ongoing activity" nuisances to those suffered no more than three years prior to suit, it would not bar recovery of present and prospective permanent damages so long as the prescriptive rights period has not elapsed. In support of their contention, the appellants relied upon Professor Charles T. McCormick's article entitled Damages for Anticipated Injury to Land in 37 Harv.L.Rev. 574 (1924).

In deciding the case on Pepco's motion for summary judgment, the District Court recognized the distinction between a permanent and a temporary nuisance. It noted that under Maryland law, damages past, present and future for permanent reduction in the market value of the land can only be recovered for a permanent nuisance, citing Donohue Realty Co. v. Wagner, 154 Md. 588, 141 A. 337 (1928), and Carroll Springs Co. v. Schnepfe, 111 Md. 420, 74 A. 828 (1909). Where the nuisance is only temporary, the court said that the injured party must resort to successive suits to recover for injuries if and when they actually occurred, citing Aberdeen v. Bradford, 94 Md. 670, 51 A. 614 (1902). In determining whether a nuisance is temporary or permanent, the District Court held that if the source of the nuisance is abatable, by either discontinuing the offending activity or eliminating the nuisance element, it is not permanent, citing Carroll Springs and Lurssen v. Lloyd, 76 Md. 360, 25 A. 294 (1892). It thus observed that since appellants did not complain of the existence of Pepco's plant per se, but only of its operation, the nuisance, if any, would disappear if Pepco were to discontinue its operations.

The court recognized that the distinction between a temporary and a permanent nuisance is sometimes difficult to draw, that abatability per se can be a "close question" and that courts examine the nature of the activity and whether, under the circumstances of its existence, it presumably will continue indefinitely. Because appellants sought permanent damages measured by the diminution in the market value of their properties, the District Court concluded that the appellants were alleging a permanent nuisance. It said that the general rule as to such nuisances, applicable in Maryland, is that an action to recover past, present and future damages must be brought within the three-year period of limitations and failure to do so acts as a bar to all recovery, citing Donohue Realty Co. v. Wagner, supra.

The District Court concluded that the appellants had a cause of action for permanent nuisance prior to November 21, 1971, and that in no event could they recover permanent damages suffered prior to that date. It gave in-depth consideration to appellants' contention, based on McCormick's article, that because the ongoing pollution generated by Pepco's facility amounted to a continuing burden on their properties, the three-year statute of limitations should not be applied to bar recovery in one action for permanent damages for all future injuries. The court recognized McCormick's view that an injured party should almost always have the election either to sue in one action for all future damages or to bring successive suits within the prescriptive period to recover damages as they occurred regardless of the statute of limitations. The court observed that McCormick's thesis was based in part on the uncertainty inherent in the definition of a "public nuisance" and in the fact that great confusion surrounds the use of that term so much so that a plaintiff will often not know whether a court will find a nuisance to be permanent or not. Thus, if he mistakenly believes that the nuisance is not permanent, then he may be barred when he attempts to bring a second suit to recover for damages suffered since the first suit, the likely result being, according to McCormick, that the court will hold that the first suit was for permanent damages past, present and future and that he has no claim remaining to assert in the second action.

The District Court said that Professor McCormick found significance in the fact that the defendant in most cases is under a continuing legal duty to stop his offending activity. As to this, the court said:

"This is so even if a court, because of the comparative hardships involved, or for other equitable reasons, refuses to enjoin the nuisance. (McCormick) believes the plaintiff should be permitted to wait until his injuries occur before being forced to sue for damages and should not be required to anticipate those injuries. It is only reasonable that if at any point a plaintiff wishes to end the succession of law suits, he should still be permitted to recover damages for future injuries to be caused by the permanent nuisance."

Although believing...