Washington Suburban Sanitary Commission v. Frankel

RODOWSKY, Judge. This case presents the question: Are the owners of dominant lands which are benefited by a covenant restricting the use of servient land entitled to just compensation because the servient land has been condemned for a public use prohibited by the restriction? Unfortunately we do not reach the question because there is no appealable judgment. ³⁰³ Three declarations executed, acknowledged, and recorded among the land records in 1956 and in 1959 by the then owners of 347.4369 acres of Montgomery County land (the parent tract) imposed restrictive covenants on the parent tract. 1 The assemblage so restricted has been developed as an industrial park. In the introductory “WHEREAS” clauses of the declarations each grantor recited that it was desirous of subjecting the real property described in Clause I to the conditions, covenants, restrictions, reservations and easements hereinafter set forth, each and all of which is and are for the benefit of said property and for each owner thereof, and for the benefit of adjacent properties and properties in the general neighborhood and each owner thereof and shall inure to the benefit of and pass with said hereafter described property of Grantor and each and every parcel thereof and shall also inure to the benefit of and pass with said adjacent properties and properties in the general neighborhood and each and every parcel thereof and shall apply to and bind the successors in interest and any owner thereof.

The pertinent covenants provide that [n]o waste material or refuse may be dumped or permitted to remain upon any part of the property outside of buildings[.] and that [n]o emission of objectionable odors outside the lot lines shall be permitted____ ³⁰⁴ Furthermore, the covenants specifically prohibit the use of the land for a “[d]ump or sanitary fill.” One of the parts into which the declarations are divided, that headed “GENERAL APPLICATION,” contains If (c) which in relevant part reads: The covenants herein set forth shall run with the land and bind the present owners, their successors and assigns, and all parties claiming by, through or under it shall be taken to hold, agree and covenant with the owner of said building sites, its successors and assigns, and with each of them, to conform to and observe said restrictions as to the use of building sites, and the construction of improvements thereon, and the Grantor or the owner of any of the adjacent land shall have the right to sue for and obtain an injunction prohibitive or mandatory, to prevent the breach of or to enforce the observance of the restrictions above set forth, in addition to ordinary legal action for damages____ On July 8, 1980, Washington Suburban Sanitary Commission (WSSC) acquired by condemnation the title to 115.-48135 acres out of the parent tract. 2 The property condemned by WSSC is known as “Site 2.”' Site 2 was condemned for and is used for composting sewage sludge, a process which emits noisome odors. In the condemnation action the only defendants were two entities which then owned the parcels comprising Site 2. None of WSSC’s adversaries in the case before us were condemnees in the action by which WSSC acquired Site 2. The case before us is a declaratory judgment action brought on November 6, 1980, by WSSC.

The legal relationship to be adjudicated is the entitlement, vel non, of identified and unidentified property owners to compensation ³⁰⁵ because of the use to which WSSC is putting Site 2. WSSC seeks a declaration that there is no entitlement to compensation. There are twenty-four identified defendants, eight of whom own properties outside of the parent tract. 3 In addition WSSC’s declaration purports to sue all other persons claiming damages or payment of any kind, or relief of any kind, purportedly stemming from the violation, abrogation, or non-observance, or the anticipated violation, abrogation or non-observance of record covenants hereinafter identified, or for a purported “taking” of property rights or interests without the payment of just compensation, all stemming from the acquisition of land for a public use. The circuit court signed an order of publication under the recited authority of former Maryland Rule 105 (Service of Process—In Rem or Quasi In Rem Jurisdiction ...

Gen’l.) and of former Md.R. Ill (Land Action ... Gen’l.) directed to these unidentified persons. In this opinion the term “Claimants” refers to all those whom WSSC joined or purported to join as identified or unidentified defendants to the declaration. Most of the Claimants filed counterclaims in which they asked for a declaration that the use made of Site 2 required WSSC to pay them compensation.

These counterclaims also sought a monetary judgment in the amount of the compensation to which the counterclaimant was entitled. On motion of one of the Claimants, The Chesapeake & Potomac Telephone Company of Maryland (C & P), the circuit court ordered a separate trial, as permitted by former Md.R. 502, of an issue of law. C & P framed the separate issue to be: ³⁰⁶ Under the U.S. Constitution, Maryland Constitution and/or Maryland law are the restrictive covenants of record on Site 2 compensable property rights of the parties benefited or intended to be benefited thereby, including defendants, which the plaintiff (WSSC) must acquire by condemnation before it can use Site 2 for a sludge composting facility which will violate or breach those covenants? On December 8, 1982, the circuit court in effect ruled that WSSC was obliged to pay compensation, without specifying to whom. 4 Thereupon, the Singer Company, one of the Claimants, acting “on behalf of all the Defendants herein,” moved for an order certifying the December 8, 1982, ruling for immediate appeal pursuant to former Md.R. 605 a on the theory that the ruling was dispositive of WSSC’s claim for a declaratory judgment.

In an answer filed to that motion WSSC agreed that the ruling was so dispositive, and the circuit court entered the Md.R. 605 a certification. On WSSC’s appeal the Court of Special Appeals affirmed as to all “appellees” other than the eight identified Claimants who own property outside of the parent tract. As to those eight the intermediate appellate court vacated the circuit court judgment and remanded for a determination whether those persons owned properties which were “adjacent” or in the “general neighborhood,” as the quoted terms ³⁰⁷ were used in the declarations of restrictive covenants. Washington Suburban Sanitary Comm’n v. Frankel, 57 Md.App. 419, 436 , 470 A.2d 813, 822 (1984).

Additionally, the Court of Special Appeals remanded for further proceedings as to the amount of compensation payable to those appellees in whose favor the judgment had been affirmed. This Court granted WSSC’s petition for certiorari. It presents two questions: I. Is violation of restrictive covenants by a public use on a servient tenement a taking of property from owners of dominant tenements for which just compensation must be made?

II

Is violation of restrictive covenants by a public use a taking of private property rights of the owners of neighboring property beyond the tract owned by the covenantor, though the declaration of covenants purports to apply to them? There is a threshold question which we are obliged to raise sua sponte. That is whether there is an appealable judgment. This case is not appealable on the theory relied upon by the parties.

The Md.R. 605 a certification did not make the ruling on WSSC’s requested declaratory judgment a final judgment on an entire claim. 5 WSSC’s claim in this case was for a declaration on whether it was constitutionally obliged to pay just compensation to the owners of land benefited by the restrictive covenants.