2 Gill 221 | Md. | 1844
Lead Opinion
delivered the opinion of this court.
The only question, discussed by the appellant’s counsel, and on which the opinion of this court was called for, on the first bill of exceptions was, whether, as the plaintiff had not located the patents and title papers of his land upon plots returned to the court, under a warrant of re-survey issued for that purpose, he could give such patents and title papers in evidence to the jury, and prove, that the grievance complained of, was perpetrated by the defendant in respect of those lands.
In an action relating to lands, if the defendant does not see fit to take defence on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties. Without such plots he may read his title papers in evidence to the jury; prove his
The case of Medley vs. Williams, et al., Lessee, the only case relied on by the appellant as sustaining his position, bears no resemblance to the case now before us. There, defence was taken on warrant, and locations made, and this court held that a title paper, of which there was no location, could not properly be offered in evidence; on the well established principle of correspondence between the pleadings and the proof. But here, no warrant of survey being required by either plaintiff or defendant, no plots or locations could be made in the cause. The county court, therefore, are exempt from the error complained of in the first bill of exceptions.
But the county court, we think, erred in rejecting the testimony offered by the appellant in his second bill of exceptions. The plaintiff having offered the testimony stated in the first bill of exceptions, showing the diversion of the stream from its natural channel, on his land, where it was accustomed to flow; the defendant offered evidence to show, that the diversion of the water complained of, was made on the lands of the defendant, above the lands of the plaintiff, and, that it was rather a benefit than an injury to his lanílg^, and that it was made in virtue of a verbal agreement, entered into by the plaintiff and defendant; by which, it was agreed, that the defendant might make the diversion, as now complained of, for the purpose of working a mill, to be erected by the defendant on his own land; if he, the defendant, would allow the plaintiff the use of a wagon road, from the lands of the plaintiff, over the lands of the defendant. That, in pursuance of the agreement, the plaintiff used the said road; and the defendant, at an expense upwards of $4000, (encouraged so to do by the plaintiff,) erected the said mill; which mill was of no value, without the said privilege of diverting the water, as “Aforesaid. That the plaintiff made no objection to the diverting of the stream of water, till shortly after the completion of the mill; when the plaintiff demanded of the defendant a large pecuniary compensation for the use of the water; and that the dam, erected on
But, regarding this license as countermandable, upon what terms is the plaintiff to be restored to his former rights? Can he require of the defendant to be at the expense, and endure the labor, of removing structures lawfully erected, and by the express authority of the plaintiff? The manifest injustice of such a requisition, is an answer to the question. How, then, is the plaintiff to be restored to rights which he is authorised to demand? By doing justice to the defendants: by tendering to him the expense which he has incurred, under the This principle was announced in the case of Winter vs. Brock* we.ll, 8 East, 308. "'Where an action being brought for a private nuisance, by the erection of a sky-light over the defendant’s open area; at the trial, the defence set up was, that the area, which belonged to the defendant’s house, had been enclosed and covered by a sky-light, in the manner stated, with
We are not to be understood in what we have said, as countenancing the idea, that a written grant, unacknowledged and unenrolled, of a power similar to that conferred by the license in this case, but which power had not been executed, would be operative and effectual to bar a subsequent bona fide purchaser, for a valuable consideration without notice, claiming the water right naturally incident to the lands he had purchased. To interpose such a bar, in such a case, we think the same conformity to the provisions of our registry laws is necessary, that would be required if land were the subject of the conveyance.
The doctrine, insisted on in the argument of the counsel for the appellant, that an oral contract, of no validity under the statute of frauds, would obtain such validity, and would enable a party to maintain an action upon it at law, if he could prove that the opposite party perpetrated, or designed to per
Assenting to the opinion of the court, on the first bill of exceptions, but, dissenting from its refusal to admit, in evidence, the testimony offered by the appellant in the second bill of exceptions, we reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.
Dissenting Opinion
dissented in part.
I concur in the opinion expressed by my Brother Dorsey, so far as that opinion relates to the case, now for the judgment of this court. To so much of it as relates to the idea, “that a written grant, unacknowledged and unenrolled, of a power similar to that conferred by the license, in this ease, &c.” I beg leave to be considered as expressing, neither concurrence or dissent. That question is not involved in the cause now before us, has not been at all argued by counsel, certainly has not been investigated by me; and, whatever be the law applicable to it, this case will, in no respects, be affected by it.
Considering it quite sufficient to examine and decide questions which are brought before us, I am unwilling to prejudge .others; not because of any supposed difficulty in the particular case, but on account of the principle.