Leatherbury v. Peters

Menchine, J., delivered the opinion of the Court. Robert M. Leatherbury and Phyllis Leatherbury, his wife (Leatherburys), filed a bill asking that prospective use of property for a quarry operation be declared a nuisance; that its owners be enjoined from using the property for quarry purposes and that they have other and further relief. The action was filed against Gaylord Fuel Corporation, doing business as Gaylord Stone, a Virginia corporation (Gaylord) as owner, against James Paul Sebold and Edna Sebold, his wife, as mortgagees and against Frank Peters as President of Gaylord. On motion and over the objection of appellants, the individual defendants were dismissed as party-defendants.

The case then went to trial on the merits against Gaylord, resulting in an order dismissing the bill of complaint. The Leatherburys have appealed. The bill of complaint had alleged that the Leatherburys were the owners of an 80 acre parcel of land in Garrett County, Maryland, and that Gaylord was the owner of a 33.06 acre parcel of land adjacent thereto; that Gaylord was proposing to operate a limestone quarry upon its land in such a way that: the discharge of waste waters from the quarry into nearby Hoyes Run; the discharge of limestone dust into the air; and the loud noises resulting from its operation would combine to make the Leatherburys’ home unfit for use as a dwelling. It was alleged that limestone dust, noise and water pollution from the respondent’s quarry would constitute a nuisance; would cause irreparable injury; that the nuisance would be continuing and thus would result in a multiplicity of suits unless operation of the ⁴¹² quarry was enjoined.

It was not alleged that there was a zoning impediment in the proposed use of the land. It is well-established that courts of equity may intervene to prohibit a threat of harm that has not yet occurred. A leading case in the country is Hamilton Corporation v. Julian, 130 Md. 597 , 101 A. 558 . In Hamilton the Court said at 601-02 [560]: “The real question in all such cases, as stated by the authorities, is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party.” See also: Prosser, Law of Torts, Ch. 15, § 90 at 603 (4th ED.

HB, 1971); Annotation 7 A.L.R. 749 , et seq. In the subject case there was directly conflicting testimony by witnesses offered by the Leatherburys on the one hand, and by Gaylord on the other upon the question whether there would be such discharge of waste water, or such discharge of dust into the air, or the creation of such noises as would be naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits. The trial judge heard this conflicting testimony and said in his written opinion: “The operation of a stone quarry is an essential and lawful business and is not a nuisance per se; furthermore, the court was more impressed with the expert witnesses produced by the Respondents than those of the Complainants, especially with reference to new and modern scientific advances and developments of