Emory v. Owings ex rel. Green

| Md. | Dec 15, 1852

Eccleston, J.,

delivered the opinion of this court.

This case comes before us on a second appeal.- The report of the first will be found in 6 Gill, 260.

According to-the former decisions-the stone quarry called the Fox Rock Quar’ry, which, by the lease of the 11th June 1840, on which this suit is founded, was demised to the defendants, was not covered or conveyed by the lease of the 25th July 1836, unless the quarry was opened at the date of that lease. This decision, of course, was binding on the court below, and at the second trial it became an important inquiry whether the quarry bad been opened as far back as the 25th July 1836. To show that it had been, the defendants gave' a variety of evidence, to rebut which the plaintiffs offered to prove, by-Caleb D. Owings, that he was the person named as lessee in the last mentioned lease ; that the Fox Rock Quarry had been opened by Swett & Co., against the consent of Nicholas Owings, (who then possessed and owned the same,) and by trespass upon his premises; that the said rock never had been opened as a quarry by the said Nicholas Owings, or any former proprietor of the same, which facts were all known to the witness at the time he received the said leasé; and also, that it was not believed by him, nor was it understood between the parties to said lease at the time of executing the same, that the quarry was an open quarry. The defendants objected to the admissibility of the evidence thus offered, but the court overruled the objection and authorised the testimony to be given. But on examination the witness was unable to prove anything in regard to the alleged trespasses.- To the opinion and ruling of the court the defendants then excepted.

The objection is to all the proof offered. If, therefore, any portion was admissible the court were not hound to sustain the objection. Budd vs. Brooke, 3 Gill, 220. Under the circumstances, we think there can be no doubt of the right of the plaintiffs to prove that the quarry never had been opened by Nicholas Owings, or any former proprietor. And this is part of the testimony included in the objection, This being the case, it is not necessary for us to express any opinion in reference to the residue of the evidence, as it is a matter of no importance whether it was or was not admissible.

It has been contended that this testimony should have been rejected, because the witness, Caleb D. Owings, was incompetent. We have not been able to discover anything to establish the incompetency of this witness from the proof contained in the record of the second trial, or from the papers or testimony set forth in the record of the first trial, and authorised by the agreement of counsel to be used on this appeal. The only paper which could create a doubt on the subject is the deed of the 28th of March 1840, from Caleb D. Owings, B. Owings and C. H. Owings to Nicholas Owings, which was offered and read in evidence on the former trial, but does not ap^ pear to have been used at all on the second. Neither the bills-of exceptions, or the agreement referred to, make the slightest allusion to it. The deed not being regularly before us, it cannot authorise a decision that the court below erred in not rejecting the proof because of the incompetency of the witness,,, which incompetency is supposed to rest upon a deed notusetf before the court on the trial, for any purpose.

The fourth bill of exceptions on the part of the plaintiffs,, shows, that this witness had released his interest in the estate of his father, (the said Nicholas Owings,) and that he was>examined as a witness without any objection to his eompepetency appearing to have been made.

The evidence and instruments of writing, included in the* first, second, third and fourth bills of exceptions on the part of the plaintiffs, are made part of the first bill of exceptions-of the defendants.

J. L. Stearns, a witness examined by the defendants, having testified that the quarry in controversy was first opened-1 in 1831, by Swett & Co., stated, that “they continued to-quarry until the injunction, and that the quarry remained in the state in which they left it until Wood & Co. got it in-1835.” This testimony is to be found in the plaintiffs’ se-cond exception.

According to the defendants’ second exception, they offered a variety of testimony in reference to the opening of the1 quarry, and read to the jury, without objection by the-plaintiffs, an injunction bill filed by Nicholas Owings against Enoch Swett and others, on the equity side of Baltimore-county court, in 1832, the answers thereto, and the order dissolving the injunction. The particular purpose for’which these papers were read was not stated. But immediately after the reading of them the plaintiffs offered an injunction bill, filed in the same court, in 1833, by Nicholas Owings against the same persons, as the firm of Swett & Co., and also the order granting an injunction. Wlien this proof was offered it was stated to- be for the purpose of showing that this- injunction was the one referred to John L. Steams in his testimony. The defendants objected to the admission of these proceedings, but the court refused to sustain the objection.

Stearns had stated, that Swett & Co. continued to quarry until the injunction. It will be seen by the plaintiffs’ fourth bill of exceptions, that whilst testifying in regard to this quarry Caleb D. 0 wings stated, that Swett & Co. had a contract with the Baltimore and Ohio Railroad Company, to furnish sills for the road. That the father of the witness slopped Swett & Co. by injunction; “that they raised the injunction, and worked afterwards, but he did not know whether they worked at the Fox Hock quarry or not.” Stearns did not speak positively as to the year when Swett & Co. quit work at the quarry, but thought it was in 1832. The bill offered by the defendants was sworn to on the 29lh of March 1832, ,and the order dissolving the injunction is dated the 20th of April following. The order granting the injunction on the hill offered by the plaintiffs hears date the 1st March 1833. There is nothing in the record to show whether this writ was ever dissolved,.

If the object for which these proceedings were offered did no injury to the defendants, the admission of them, although they might not be legal evidence, was not such error in the court below as demands a reversal of their judgment. 8 Gill, 370. 5 G. & J., 223. 10 G. & J., 442. 12 G. & J., 493. 9 Gill, 160.

The chief object of the defendants was to prove that the quarry was open on the 25th July 1836. Slearns had testified, that in 1831 Swett & Co., through a sub-contractor under them, first opened the quarry, and continued to work in it “until the injunction,” which he thought was in 1832. The defendants produced and read an injunction issued the same year. Supposing, very naturally, that this was offered as the one alluded to by the witness, although not so stated, the plaintiffs presented the other, declaring the object for so doing. If Stearns had spoken confidently as to the year 1832, the last injunction might have militated against the defendants’ case by being used as a contradiction of their witness, but his language is doubtful in reference to the year, whilst he speaks with confidence, certainly not doubtfully, as to the working of the quarry by Swett & Co. until the injunction. If that was in 1833 it was not injurious to the defendants but quite the contrary, the important fact for them to establish being, that the quarry was opened prior to the 25th July 1836.

This could be as well and as effectually done by showing that Swett & Co. carried on their quarrying operations there, until 1833, as if they had stopped the year before.

When testimony is admitted for a particular purpose, it does not follow that' the party introducing it may then use it for any .object he thinks proper, and if any such attempt is made the court will prevent it upon the application of the opposite party, where the use attempted is an improper one. But there is nothing to show that in this instance there was any effort on the part of the plaintiffs to use this evidence for any other than the purpose declared when making the offer.

We do not see that the court committed an error in granting the prayer of the plaintiffs contained in the defendants’third bill of exceptions. The prayer was: “Upon the whole evidence to the jury on the trial of this cause, the plaintiffs, by their counsel, pray the opinion and direction of the court to the jury, that if the jury find that said quarry was not, previously to 25th July 1836, opened with the consent of Nicholas Owings, the proprietor thereof, and that said facts were known to Caleb D. Owings, the lessee, in the lease of that date, that the right to use said quarry did not pass by said lease.”

The argument of the defendants’ counsel was not understood by us as denying the correctness of the law involved in the prayer, if the former decision of the Court of Appeals, in 6 Gill, 260, is to be considered as the law of this case. He found fault with that decision for applying to the Fox Rock quarry the principles established in relation to a mine, in Saunders’ case in 5 Coke’s Rep., 22. We, however, cannot on the present occasion, adopt the views of the counsel in opposition to what has been decided, in this very case, by the appellate tribunal. But it was insisted that the instruction should have been refused, because there was no evidence on which it could be based. Let us see how far this assumption is sustained by the record. In the defendants’ first bill of exceptions will be found a statement of what the plaintiffs’ offered to prove by -Caleb D. Owings. Among the proof there stated as offered is the following: “That the said Fox Rock quarry had been opened by Swett & Co. against the consent of Nicholas Owings, who then possessed and owned the same, and.by trespass upon his possession, and that said rock never had been opened by said Nicholas Owings, or any former proprietor of the same, as a quarry, and that said offered fa.ets wer.e well known to said Caleb D. Owings at the time he received the aforesaid lease.” The lease of 25th July 1836, being the one alluded to in a former part of this opinion, we have stated the overruling of the defendants’ objection to the admissibility of this offered evidence, and that the court authorised the same to be given. But it seems that, on examination, the witness was unable to prove anything in regard to the alleged trespasses. From this we understand the witness did testify that the Fox Rock quarry never had been opened by the said Nicholas Owings, or any former proprietor .of the same, as a quarry, which he, Caleb D. Owings, well knew at the time he received the lease of 25th July 1836. Charles Wood stated in substan.ee, that he could not say precisely when this quarry was first opened, but to the best of his recollection it was in the latter part of the year 1837. This, if there was no other testimony on the subject, is sufficient to forbid our reversing the decision below upon the ground of there being no evidence on which the prayer could be predicated. Granting the prayer did not encroach upon the rights of the jury in any respect, they were left at full liberty to consider and decide upon the truth and the weight of all the evidence in the cause given by both parties.

Concurring with the court below in regard to the decisions in all the bills of exceptions on the part of the defendants, the judgment below will be affirmed.

Judgment affirmed,

Upon the appeal of the plaintiffs below the same judge delivered the following opinion of this court:

In 8 Gill, 376, under similar circumstances, the Court of Appeals say: “In the case of Donovan’s appeal, the verdict having been in his favor and the judgment affirmed as above, he cannot be injured by the decision of which he complains, and, of course, cannot ask a reversal of the judgment.” In addition to which, the counsel for the plaintiffs below says he abandons his exceptions. .

Judgment affirmed.