Harford Sands, Inc. v. Levitt & Sons, Inc., 630

• Decision Date: 05 September 1975
• Docket Number: No. 630,630
• Parties: HARFORD SANDS, INC. v. LEVITT AND SONS, INC.
• Court: Court of Special Appeals of Maryland

Page 702

27 Md.App. 702

343 A.2d 544

HARFORD SANDS, INC. v. LEVITT AND SONS, INC.

No. 630.

Court of Special Appeals of Maryland.

Sept. 5, 1975.

Peter Parker, Baltimore, with whom were Gordon W. Priest, Jr., Baltimore, and White, Page & Lentz, Baltimore, on the brief, for appellant.

Robert J. Carson, Baltimore, with whom were M. King Hill, Jr., Edward J. Adkins and Smith, Somerville & Case, Baltimore, on the brief, for appellee.

Argued before POWERS and LOWE, JJ., and JOHN C. ELDRIDGE, Associate Judge, Court of Appeals, Specially Assigned.

JOHN C. ELDRIDGE, Associate Judge, Court of Appeals, Specially Assigned.

This appeal is taken from a 'judgment' purportedly entered pursuant to Maryland Rule 605 a, which allows 'entry of a final judgment upon one or more but less than all of the claims (for relies presented in an action) only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' Because we do not believe that the 'judgment' is a final appealable judgment under Rule 605 a, we shall dismiss the appeal.

The appellant, Harford Sands, Inc., filed suit in the Circuit Court for Harford County seeking monetary damages from and an injunction against the appellee, Levitt and Sons, Inc. Harford Sands' declaration contained three counts which alleged that Levitt had intentionally caused certain damage to Harford Sands' property (Count I-Trespass); that Levitt had negligently damaged Harford Sands' property (Count II-Negligence); and that the continuing nature of the damage constituted a nuisance (Count III-Nuisance). All three counts of the declaration alleged specifically that '(c)ommencing on or about April 1, 1968, and continuing to the present date, defendant intentionally (or in the alternative negligently), has caused or permitted water, silt, sand, gravel, debris and various by-products of its building operation to flow or run-off onto the property of plaintiff which lies immediately adjacent to defendant's business premises.' Harford Sands' declaration also alleged with respect to all three counts that Levitt had removed topsoil from Harford Sands' property and had deposited earthfill and other debris on its property. According to the declaration, these actions of Levitt resulted in the destruction of trees on Harford Sands' property; 'accumulation of debris on plaintiff's property, destruction or damage of a portion of plaintiff's elaborately located survey line; erosion of plaintiff's land; extermination by suffocation of numerous fish located in a pond on plaintiff's property; accumulation of sand and silt and other by-products in quantities measured in the tens of thousands of tons; destruction of (a) road on plaintiff's property; extensive siltation of the streams which pass through the plaintiff's property; and pollution of stream waters, lower marsh areas and 'wetlands' by heavy deposits of building by-products.' The declaration further alleged that the volume of discharge had increased since 1968, and that Harford Sands had expended substantial unreimbursed sums of money 'to correct or repair the damages to its property for which defendant has been responsible.' Harford Sands demanded $250,000 in damages under both Counts I and II of its declaration, and requested an injunction requiring Levitt to halt the flow of water, sand and other harmful substances onto Harford Sands' property under Count III.

Upon the suggestion and affidavit on behalf of Levitt, the case was removed to the Circuit Court for Baltimore County.

Harford Sands' declaration was later amended by adding to Count I (Trespass) and Count III (Nuisance), allegations that Levitt had intentionally installed a sewage disposal relief valve on Harford Sands' property which released untreated sewage and that Levitt had begun construction of houses on land adjoining Harford Sands' tract without filing a required sedimentation control plan. Harford Sands' declaration was also amended by increasing the amounts demanded under both Counts I and II to $800,000, and by adding a request that Levitt be ordered by the injunction requested under Count III to remove the sewage disposal relief valve from Harford Sands' property.

Following a pre-trial conference, the circuit court pursuant to Maryland Rule 502 ordered that the legal question of the effect of the Harford County zoning ordinance on Harford Sands' 'right to mine sand on the part of the property involved in this case where the Defendant has dumped dirt' would be decided separately by the court. The parties formulated an agreed statement of facts 'for the sole purpose . . . of determining the question of law hereinafter stated in advance of trial.' The question of law presented was stated by the parties in the following words:

'In determining damages to which Harford Sands may be entitled because of the encroachment of earth on its land as a result of Levitt's grading operations, is Harford Sands, in presenting evidence of its damages, subject to the restrictions on its mining operations on its property contained in the present Zoning Ordinance, or may Harford Sands mine up to the property line without being subject to said restrictions?'

Harford Sands filed a motion for a 'partial summary judgment' with respect to this issue of law.

On August 1, 1974, a hearing was held on the issue of law presented by the parties. On the same day, the circuit court rendered its opinion in which it concluded that certain setback requirements contained in the Harford County zoning ordinance were applicable to prevent Harford Sands from mining said within about 60 feet of the property line between its and Levitt's tracts and that the setback requirements were constitutionally valid. On August 9, 1974, the court entered a 'partial summary judgment' in favor of Levitt and declared that 'Harford Sands, Inc. . . . has sustained no compensable injury or damage by virtue of any inability to mine in or under the area of its property lying within . . . (the distances set forth in the setback requirements of the zoning ordinance) due to any encroaching dirt placed on or over said area by Levitt.' The judgment provided that 'the Court . . . (has) determined, pursuant to Rule 605 a of the Maryland Rules of Procedure and without objection by either party to such determination, that there is no just reason for delay in entering final judgment upon the issues involved in said Motion for Partial Summary Judgment.'

An appeal to this court from the circuit court's order was taken by Harford Sands. The issues presented to us by both appellant and appellee are whether the circuit court properly construed the Harford County zoning ordinance in holding that the setback requirements were applicable to mining on Harford Sands' property and whether such an application of the zoning ordinance is constitutionally permissible. We do not reach these issues presented by the parties for the reasons stated below.

Neither the appellant nor the appellee presented the issue of whether this court has jurisdiction to decide the appeal. When, at oral argument, we raised the issue of our jurisdiction, counsel for both parties urged us to decide the case on the merits. However, the 'jurisdiction of this Court is statutory and may not be conferred by consent of the parties.' Wright v. Nugent, 23 Md.App. 337, 356, 328 A.2d 362, 373 (1974). See also Blocher v. Harlow, 268 Md. 571, 578, 303 A.2d 395 (1973). It is our duty to raise and decide, where appropriate, the issue of our jurisdiction over cases appealed to us. Maryland Rule 1035 a 2. Therefore, we have considered the propriety, under Rule 605 a, of this appeal, and conclude that the appeal must be dismissed.

An appeal of the decision resulting from a separate trial of an issue of law cannot normally be appealed until the conclusion of the entire litigation of which the separate trial is a part. Maryland Rule 502 a provides:

'At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be raised for the court's decision in such manner as the court may deem expedient. All such further proceedings as may be rendered unnecessary by the decision of such question shall upon the decision by stayed. Such proceedings as show the questions so decided and the decision thereon shall form a part of the record and be reviewable upon appeal after final judgment.' (Emphasis supplied.)

Moreover, since this court, with certain limited exceptions not pertinent here, has jurisdiction only over appeals from final judgments, Maryland Code (1974), § 12-301 of the Courts and Judicial Proceedings Article, the appeal in this case could only be justified on the basis of Rule 605 a. That rule states:

'Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before tne entry of judgment adjudicating all the claims.' (Emphasis supplied.)

While, in the instant case, the circuit court did expressly determine that 'there is no just reason for delay' and did order entry of a 'judgment' on the issues raised by the motion for a 'partial summary judgment,' an appeal cannot property be brought under Rule 605 a because the order entered by the court was not a 'final judgment upon...