Parklawn, Inc. v. Nee, 369

• Decision Date: 24 June 1966
• Docket Number: No. 369,369
• Citation: 243 Md. 249,220 A.2d 563
• Parties: PARKLAWN, INC. v. Dermot A. NEE et ux.
• Court: Maryland Court of Appeals

Page 249

243 Md. 249

220 A.2d 563

PARKLAWN, INC. v. Dermot A. NEE et ux.

No. 369.

Court of Appeals of Maryland.

June 24, 1966.

Karl G. Feissner, Rockville, for appellant.

Calvin H. Cobb, Jr., Washington, D. C. (J. Dapray Muir, Washington, D. C., on the brief), for appellees.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

MARBURY, Judge.

Suit was instituted in the Circuit Court for Montgomery County by Parklawn, Inc., plaintiff-appellant, against some forty-two defendants, who were alleged to be owners, lessors, and improvers of land near the plaintiff's cemetery. The declaration charged that:

'These defendants have since 1962 graded, built upon and otherwise developed their property for their economic benefit from its natural state into an industrial and commercial complex and use, in such a manner as to copiously increase the run-off of water, dirt, silt and debris onto the land of plaintiff. These defendants were negligent in failing to take, and in failing to have their agents, engineers, contractors and builders take reasonable precautions against the foreseeable consequences of their acts, and have maintained a nuisance which is continuing to cause plaintiff damage and loss of valuable cemetery land.'

Plaintiff sought damages as well as ancillary injunctive relief. Defendants-appellees Dermot A. Nee and his wife, Antoinette K. Nee, who were part owners of two parcels of real estate located near plaintiff's cemetery, filed a motion for summary judgment. In an affidavit accompanying the motion, the defendants averred that the two parcels of real estate here in question had been leased by them in two separate leases, respectively to the Filderman Corporation and Giant Food, Inc., for a term of ninety-nine years, and that both parcels of real estate had been leased before the beginning of 1962. The defendants further averred that the building, grading, paving and all other improvements then existing on these parcels were undertaken by the lessees (or their agents, contractors, or sublessees), that no part of such improvements were 'authorized or undertaken by affiants or their agents,' and that they had in no other way participated in such improvements. The plaintiff filed no counter affidavits but instead argued that there were certain germane 'questions of fact' raised by the conflict between portions of the lease agreements which the defendants had filed with their affidavit, and certain portions of Dermot A. Nee's deposition, which had been previously filed in this case. A hearing on this matter was held before Judge Walter H. Moorman on August 4, 1965, and on the same date the motion for summary judgment was granted in the defendants' favor. On August 26, 1965, plaintiff entered this appeal wherein the questions are whether there was presented any dispute as to a material fact, and if not, whether the defendants were entitled to a judgment as a matter of law.

Judge Alvey, speaking for this Court in Maenner v. Carroll, 46 Md. 193, 216, said:

'If a landlord demise premises which are not in themselves a nuisance, but may or may not become such, according to the manner in which they are used by the tenant, the landlord will not be liable for a nuisance created on the premises by the tenant. He is not responsible for enabling the tenant to commit a nuisance, if the latter should think proper to do so. Owings v. Jones, 9 Md. 108; Rich v. Basterfield, 4 C.B. 805 (56 E.C.L. 782). In such case, it may be said, in one sense, that the landlord permitted the tenant to create the nuisance, but not in such sense as to render him liable.'

See also Metropolitan Savings Bank v. Manion, 87 Md. 68, 83, 39 A. 90, wherein the above was quoted with approval. The 'one sense' referred to by Judge Alvey as not being the basis for liability was in the sense that the landlords permitted the work (excavation in that case) to be done by their 'mere silence and failure to interfere, or by not taking active measures to prohibit the making of the excavation * * *' (p. 215 of 46 Md.).

The reason for the rule that a landlord, who leases his property for a term of years, is not liable for the nuisance caused solely by the lessee is that ordinarily such an owner does not have the ability to do anything to abate the nuisance during his tenant's term. See Moretti v. C. S. Realty Company, (1951) 78 R.I. 341, 82 A.2d 608, 612, 39 A.L.R.2d 963. In the instant case the appellant argues that certain portions of the two leases here in question do contain provisions from which a trier of facts might find that the landlords in this particular case did retain such control over the demised premises by which they might abate the nuisance for which suit was brought. Appellant specifically points to six provisions contained in the Filderman lease and avers, without mentioning the precise clauses thereof, that provisions of 'similar import' can be found in the Giant lease. The six provisions are that: (1) the buildings which are erected during the first five years of the lease will be compatible in design with a specified building which was already in existence, (2) once the initial improvements are made no building can be demolished for the last twenty-five years of the lease, (3) both parties could mortgage the premises, (4) landlord can terminate lease in case of rent default, (5) the landlord will, at lessee's request, grant adequate rights of way over landlord's adjoining property (the Giant tract) so that the lessee may install (and connect with) adequate water and sewer facilities, and (6) lessee had an option to purchase the fee but not until after 1970. No useful purpose would be...