Ammendale Normal Institute, Inc. v. Schrom Construction, Inc.

Smith, J., delivered the opinion of the Court. A property owner here complains because a party was permitted to continue to remove sand and gravel from ⁶¹⁸ the owner’s property after bringing to date royalty payments which had been in arrears. We conclude that the chancellor properly denied injunctive relief, but gave the wrong reasons for that denial. Appellant, Ammendale Normal Institute, Inc. (Ammendale) , a religious facility conducted by the “Christian Brothers,” entered into a written agreement in 1963 with appellee, Schrom Construction, Inc. (Schrom), under which Schrom was “to mine sand and/or gravel” from the land of Ammendale, paying certain specified sums per ton.

The agreement provided “this ground for mining and processing materials may be available for approximately ten years or until sold.” The method of measurement was set forth. Payment was to “be on a monthly basis by the fifteenth of each month for all materials sold.” It provided “[u]pon completion of the mining or processing areas, Schrom [would] level all ground disturbed in a workmanship like manner so that it [would] have a gradual contour and [would] not impound water and have proper drainage.” It is silent as to any remedy in the event of default on the part of Schrom. In May of 1969 Ammendale filed a bill of complaint reciting its ownership of property upon which were “located certain valuable deposits of sand and gravel”; that Schrom was in the business of excavating and processing sand and gravel; that Ammendale had permitted Schrom “to remove sand and gravel from certain areas under an informal memorandum”; that “[c]ontrary to the directions of [Ammendale], [Schrom] ha[d] invaded other areas forbidden by [Ammendale] and ha[d] been removing sand and gravel from [Ammendale’s] property against the direction and wishes of [Ammendale]” although Ammendale had “repeatedly notified [Schrom] of the termination of his permission to mine the sand and gravel and to desist from invading the forbidden area of [Ammendale’s] land”; that Ammendale had ordered Schrom to remove its equipment and cease operations but Schrom continued to come upon Ammendale’s land; and that the conduct of Schrom “and its contin ⁶¹⁹ uation ha[d] in the past and [would] continue to cause [Ammendale] immediate substantial and irreparable damage unless [Schrom was] enjoined from doing so.” The prayer for relief was in the following form: “1. That each of the defendants be enjoined pendente lite and permanently from going upon the plaintiff’s property located at Ammendale Road, Beltsville, Maryland, and from removing sand and gravel therefrom. “2.

That an ex parte injunction be granted immediately prohibiting, enjoining and restraining the defendants from going upon the plaintiff’s real estate located at Ammendale Road, Beltsville, Maryland, and removing any sand and gravel therefrom and that the requirement of bond pursuant to Maryland Rule BB75 be dispensed with, because it will constitute an extraordinary hardship for the plaintiff. “3. That an Order to Show Cause be issued directing each of the defendants to show cause, if any they may have, why the Court should not grant the Plaintiff an injunction pendente lite, to enjoin the defendants from going on the land of the plaintiff located at Ammendale Road, Beltsville, Maryland and removing sand and gravel therefrom. “4. That the defendants give a full and complete accounting to the plaintiff of the sand and gravel removed by the defendants and the plaintiff have judgment in such amount as may be found due. “5. And for such other and further relief as the case may require.” An ex parte injunction was issued.

Subsequently, Ammendale moved for summary judgment. The affidavit in connection with the motion included in it a statement that on July 17, 1970, Ammendale received a payment accompanied by a statement ⁶²⁰ setting forth the materials Schrom admitted removing during the month of April, 1970, but Schrom had “failed and refused to make any payments to [Ammendale] for any months thereafter,” although Schrom had been removing materials and was “in arrears on the payments for the months of May, June, July, August, September, and October.” The motion for summary judgment was heard by Judge Loveless on January 14, 1971. He passed an order enjoining Schrom from going on Ammendale’s property, and removing sand and gravel until Schrom accounted with Ammendale “for all arrearages from April of 1970 for sand and gravel removed * * * from the premises.” He stated he was unwilling at that time to hold that the circumstances were such as to effect the termination of the entire contract. Accordingly, he denied “the balance of the motion for summary judgment.” The matter ultimately came on for hearing before Judge Loveless.

Apparently, the Schrom operations had been centered in the area known by the parties as “Chicken House Hill.” At the hearing before Judge Loveless it was brought out that Schrom claimed that it had an exclusive right to mine on Ammendale’s property and that this right extended to almost all of the Ammendale land, not being strictly limited to the “Chicken House Hill” vicinity. At the same time Ammendale alleged that the “Chicken House” area was designated by it as the primary site of operation and that this was understood by the parties at the time of the contract, but that it was further understood that mining rights could be extended to Schrom for other areas at the discretion of Ammendale. Judge Loveless in his opinion commented on the fact that Ammendale’s chief dissatisfaction was that payments were consistently late, that some payments were several months in arrears, that two checks were returned marked “Insufficient Funds,” and that after this the bill of complaint was filed. He further said: “The issues before the Court are several.

First, should an injunction issue to stop ⁶²¹ Schrom’s mining operations on the Institute’s property at Beltsville? Secondly, does Schrom have an exclusive right to mine the property? Third, has there been an effective modification of the contract such that Schrom is entitled to make payments at times later than on the 15th of each month as specified by the contract? Fourth, does Schrom have an enforceable claim against Contee and the Institute for damages?” All of these questions were answered in the negative.

The bill for injunction was denied. Schrom was directed to “pay promptly by the 15th of each month as provided by the contract for all sand and gravel materials removed from [Ammendale’s] property,” and the contract was construed as not giving Schrom exclusive mining rights. The third paragraph of the resulting order read in part: “[T]hat Schrom Construction, fully and promptly comply with the requirements of the Prince George’s County Zoning Ordinance.” No appeal was entered from that decree. This cause reaches us as a result of a petition filed in the same proceeding just over two months after passage of the decree.

That petition recited the terms of the decree; that checks dated February 19, 1971, and March 12, 1971, for sand and gravel removed during the months of January and February, 1971, had been returned by the bank upon which they were drawn because they exceeded the sum on deposit by Schrom in the bank; that in April in another case in Prince George’s County Schrom had obtained leave to intervene without advising the court of that portion of Judge Loveless’ decree that required Schrom to “fully and promptly comply with the requirements of the Prince George’s County zoning ordinance”; that Schrom had not complied with any of the ordinance requirements of Prince George’s County; that by obtaining this order granting permission to intervene it had attempted to avoid compliance; and that Schrom ⁶²² was continuing to remove sand and gravel although it had failed to make any payments to Ammendale or otherwise comply with the decree of March 10, 1971. (The other Prince George’s County proceeding to which reference was made was one that sought a declaratory judgment that a certain portion of the Prince George’s County zoning ordinance relative to mining sand and gravel was unconstitutional.) The petition prayed that Schrom be held in contempt. At the hearing it was admitted that payments were not in fact made on time. The chancellor, Judge Meloy, said: “It would appear from the petition to adjudicate the defendant in contempt of the order that payments for materials mined during the months of March and April, 1971, were not paid for on time.

It has been admitted by the defendant that the payments were not paid for on time, and that sometime subsequent to the due date, respectively the 15th of each month, there was mailed to the plaintiff, arriving on or about the 2nd of June, 1971, payments for March and April mining operations. * *' * «* * * Qourt is 0f the opinion that when the plaintiff received and accepted the moneys due subsequent to their date that they were in effect condoning the illicit delaying, dilatory action of the defendant, and in effect acquiescing in the breach. * * * “I draw to the petitioner’s attention that the right to an injunction is never absolute, but it rests in the sound discretion of the Court. An injunction is primarily a preventative remedy, the province of which is to afford relief against future acts which are against equity and good conscience, and to keep a condition in status ⁶²³ quo, rather than to remedy something which is past or to punish for wrongful acts already committed. “Under the Court’s philosophy with respect to injunctive relief, the Court will not in this instance grant injunctive relief. We will find as a matter of equity that the defendant was technically in contempt by noncompliance with the date of payment, and will rule under the circumstances of this case at this time and in view of the evidence that the contempt has been purged, but will strongly admonish the defendant to comply with the order of March the 10th hereinbefore signed by Judge Loveless.” The order passed by the chancellor as a result of the hearing found Schrom in contempt of the earlier decree, held that he “ha[d] purged himself of said contempt by telephonic condonation and by acceptance on behalf of [Ammendale] on or about the 2nd of June, 1971, of checks in payment of the current account due,” found that “[o]ther allegations of willful violation of the Court’s order of March 10, 1971 * * * were not pursued by [Ammendale],” and “denie[d] the prayer for enjoinment and injunctive relief on the ground that to grant such a drastic remedy in this case, amounting to a complete rescission of the contract, would be punitive and repressive for inadvertence already committed (untimely payments of amounts due).” On appeal to us Ammendale urges that the trial court erred in refusing to enjoin the further removal of sand and gravel “after the contract ha[d] been terminated by [Ammendale].” Ammendale does not point to any