Maurer v. Snyder

Markell, J., delivered the opinion of the Court. This is an appeal from a decree dismissing a bill for injunction against (a) alleged violations of the ⁵⁵³ Anne Arundel County zoning act and regulations thereunder and (6) continuation of alleged nuisances. Plaintiffs and defendants own adjoining properties at Magothy Beach, each fifty feet wide and running about 565 feet from the public road in the rear to the waterfront. Zoning regulations applicable to these properties were adopted on April 20, 1948 and again on February 15, 1949.

These properties were zoned as “Cottage Residential”. Of six zones provided for, the “Cottage Residential” is the highest, most restricted zone. In it “the following uses are permitted: Single or two-family dwellings. — Schools or churches. — Public buildings; — Home occupations and professional offices, providing that such an occupancy does not usurp a structure’s primary use as a dwelling. — Accessory buildings to any of the above uses.” A regulation provides, “Signs advertising professional offices or home occupations may not exceed two square feet in area.” Defendants do not question the validity of the act or the regulations or claim any right to. a non-conforming use. The bill alleged that defendants “are engaged on [their] lot * * * in the business [a] of transporting for profit * * * fishing parties and (b) of selling for profit live crabs, peelers, soft crabs, minnows, fish and bait, all in * * * violation of said zoning act and the regulations * * * thereunder”; and also “that practically all of the numerous people who have become patrons of * * * defendants drive upon [defendants’] lot * * * in automobiles ; that the roadway on * * * defendants’ * * * property used by said patrons is not surfaced * * * and all of said automobiles stop, start, back and turn within approximately seven feet of the bedrooms in [plaintiffs’] house * * *; that the driving, stopping, starting, backing and turning of said automobiles produces not only clouds of dust but also fumes and gases which infiltrate the bedrooms and said home of [plaintiffs]' to such an extent that they are denied the peaceful use and comfortable possession thereof”; and also “that * * * defendants employ in the operation of their said business two motor ⁵⁵⁴ launches, four row boats and a number of live boxes; * * * when defendants * * * made repairs to their said equipment, the discarded materials, consisting of boards with protruding nails and other refuse, was dumped overboard by them; * * * the bulk of said discarded material and refuse washed up on the beach of [plaintiffs’] lot * * *, and * * * it became necessary for [plaintiffs] to remove [it]; * * * since some of said refuse material has become submerged and is not discernible through ordinary inspection, the use of [plaintiffs’] bathing beach * * * has become hazardous and dangerous.” The bill prayed an injunction against [a] use by defendants of their premises or any part thereof “for the sale of crabs, fish, bait and oysters or for any other commercial use, including the transportation of fishing parties, not permitted” by the Anne Arundel County zoning act and the regulations thereunder and [b] “continuing and perpetuating the nuisances described and set forth in the bill * * The answer denied “that defendants engage on said lot in the business of transporting fishing parties for profit, or selling for profit crabs, peelers, minnows, fish or bait” and alleged that “the people they have taken out on fishing parties have never paid them anything; * * * they do not fish commercially but only for sport, and with hook and line and not with nets, and only on a comparatively few occasions, when they made an excessive catch, did they dispose of the excess, not to the general public, but to neighbors, and not for market price but for a nominal sum”. “They say that nobody comes to defendants’ premises at any point near plaintiffs’ premises other than defendants’ friends and there is no space in which to park more than two cars, that nobody comes during the week, and only a few people on some week ends. * * * the so called ‘customers’ who come to defendants' premises do not drive by plaintiffs’ premises at all, and park about two hundred feet from plaintiffs’ home.” Defendants deny throwing refuse overboard, say they have two small children who would be injured by doing so, and say that refuse of ⁵⁵⁵ which plaintiffs complain comes from plaintiffs’ own wharf and live box.

Mr. Snyder’s testimony shows that some of these denials in the answer are not true, e.g., denial that he “sold for profit crabs, peelers, minnows, fish or bait”, and assertions that “the people he had taken out on fishing parties had never paid him anything” and that “only on a comparatively few occasions when he made an excessive catch, did he dispose of the excess, not to the general public but to neighbors, and not for the market price, but for a nominal sum.” Apart from zoning questions, plaintiffs’ charges of nuisances call for little discussion. Strange to say, at the hearing and in this court the principal nuisance complained of was one not mentioned in the bill, viz., disturbance of sleep by noises from automobiles and other sources in connection with the arrival and departure of fishing parties at three or four o’clock in the morning. Most of the nuisance charges seem exaggerated and improbable on their face. All presented questions of fact.

The trial judge, who saw and heard the witnesses, decided these questions of fact against plaintiffs. In so doing he was not clearly wrong; we think he was right. We shall only add that the instant case, both the charges and the facts, falls far short of Fox v. Ewers, 195 Md. 650 , 75 A. 2d 357 , in which trucks at the plaintiffs’ bedroom window were held a nuisance, Green v. Garrett, 192 Md. 52 , 63 A. 2d 326 , the baseball case, or Five Oaks Corporation v. Gathmann, 190 Md. 348 , 58 A. 2d 656 , a restaurant case, in which latter cases noise and other annoyance caused by attracting a metropolitan or suburban crowd for amusement at hours when neighbors preferred to sleep, were held nuisances. On the zoning questions defendants’ contention, which was sustained by the court, is that their commercial maritime activities (if they are commercial), both the fishing parties and the sale of crabs, peelers and bait are “home occupations” permitted by the regulations.

These questions are essentially questions of law as to the meaning of “home occupations”. We must construe ⁵⁵⁶ this term and apply our construction to what defendants have done and are doing, regardless of the names they apply to their acts. Plaintiffs’ witnesses, except their two brothers, one of them their counsel, were the defendant Mr. Snyder and friends or associates of his. The witnesses were not always candid — Judge Clark did not find them candid — but there are no important conflicts of testimony (except as to nuisance questions) other than some conflicts between what was first denied and later admitted.

If defendants’ activities are not clearly stated in the testimony of themselves and their friends and associates, they are readily inferrable therefrom. Mr. Snyder’s own position is two-fold, (1) he admits sales — and advertising signs which he could not deny— of “hard crabs”, “peelers” and “bait”, but minimizes the amount of such transactions, (2) he says he does not fish commercially, only for sport, and his fishing parties were confined to “friends”. Regarding his occupation and his fishing parties, Mr. Snyder testified, “Q. Mr. Snyder, what do you do? A. I forgot to mention I crabbed.

I caught some crabs. Q. What do you do with the crabs? A. I ketch crabs whenever I can catch crabs. I don’t always bring them home.

I bring them home and put them in the live box. If anybody wants to buy any, I will sell them. Q. You do sell crabs? A. Occasionally when I have them.

I don’t always have them. I don’t have any crabs now. Q. You do have signs advertising crabs, don’t you? A. That’s right.

Q. You have one in the front of your property and one on the opposite end of the property? A. That’s right. Q. What else do you do in your spare timé? A. Well, I go fishing when the fish are biting.

I fish with a hook. Q. With whom do you go fishing? A. Well I go fishing lots of times by myself; sometimes I go with my boy; sometimes I take my father; sometimes my father’s friends; sometimes my friends; sometimes relatives’ friends. Q. How often is that?

A. Well this year I may have went, so far this season, I ⁵⁵⁷ may have went fishing ten or twelve times off-hand. * * * Q. What do you use that boat for, Mr. Synder: A. I use that boat for my own pleasure, fishing with a hook and line. Q. Do you take anybody with you when you go out? A. Yes. Sometimes I go by myself; sometimes I take somebody.

Q. How often during the week do you go? A. Well it all depends. Sometimes I don’t go any. I haven’t went fishing for three weeks.

Q. You were fishing quite often prior to that thought, wern’t you? A. For two weeks this season, I fished. Q. How about June, did you have Mr. Collins out in June? A. I went fishing the last part of June I think.

Q. When you go out, how many people do you take with you? A. Like I told you — sometimes I go myself, sometimes I take one, may take my boy, my father — (Court) Do any of them pay you any thing? (Witness) They chip in and pay me for my trouble, expenses and gas and all. (Court) That’s what I want to know about — this chipping in business.

How much do they chip in? (Witness) Well they chip in sometimes two dollars, sometimes five dollars. I have gotten as high as thirty dollars. When they catch a lot of fish, the fellows feel good.

(Court) What is your charge? (Witness) I don’t charge anything for my boat. Q. Isn’t it true Mr. Snyder, that you charge ($5.00) Dollars a piece for people you take out. A. No, sir, absolutely not.

Q. How do you determine your expenses then when you come in? A. I don’t determine any expenses. A lot of fellows I take out for nothing, absolutely nothing. They don’t pay me a penny.

Q. How do they come to get to your place? A. Well, they are all friends of mine. Everyone that goes fishing. Q. What do you mean by friends — tell us who your friends are?

A. Well, I have some friends, people that have known me ever since I was ten — twelve years old. They come down and go fishing with me.” He then testified, in response to questions by the court, “Q. Well you would starve to death if you did it that way. You have a boat there. You have to make a living.

A. I make a living. Q. You don’t make a. living with that ⁵⁵⁸ boat. A. No sir. Q. But you have to make a living somehow.

A. Yes, sir. Q. Do you want me to understand that any time a friend comes along that you just get in your boat and stay out as long as he feels like staying. A. I stay as long as I want to stay, your Honor. Q. And you don’t make him any charges at all?

A. No sir. Q. Well how do you find time to make a living then? A. I make a living. I am a carpenter by trade.

Q. Well how can you work at your trade when you are out on