Gittings v. Moale

21 Md. 135 | Md. | 1864

Bartol, J.,

delivered the opinion of this Court:

This is an appeal from a decision of the Commissioner of the Land Office, overruling a caveat of the appellants, and ordering that a patent for the land in controversy be issued to the appellee. 'Before considering the case upon its merits, it is necessary to dispose of a preliminary question raised by the motion to dismiss the appeal. The Act of 1853, ch. 415, gives the right of appeal in such cases, to “any parties aggrieved by the judgment” of the Commissioner. In this case it is alleged the appellants are not aggrieved by the judgment, because “they have no interest in the controversy,” and are therefore mere “pragmatical objectors.” On this ground the motion to dismiss is based; and if the fact'were as alleged, of course the motion would prevail, because a party having no interest in the subject-matter, a mere stranger could not be aggrieved, and therefore would not be heard as caveator or appellant.

We think, however, this record discloses that the appellants have a substantial interest in the subject of the controversy, which would be injuriously affected by the Commissioner’s judgment. This will appear by a recital of the facts as shown by the record. On the 26th of October 1854, the appellee obtained a special warrant to resurvey a tract called “Upton Court,” with power to attach contiguous vacancy. On the 24th of October 1855, the surveyor returned to the Land Office his certificate of survey under this-warrant, stating therein that lie Lad addei two acres and thirty perches, more or less, and which he had called “‘Moale’s Security.’ It being the same parcel of land heretofore surveyed and returned by me, to the Land Office, by virtue of a special warrant issued therefrom, to John S. Gittings, on the 14th day of October 1852, and called-therein ‘ Randle’s Disappointment.’ ”

It appears also from the rtcord, that a caveat had been* filed in the Land Office, by the appellee, against the issue of a patent for “'Randle’s Disappointment,” which was pending, and by the agreement of counsel, was to be heard and disposed of upon the same proofs as were taken in the-present case.

The special warrant under which Gittings, one of the appellants, claims, although not exhibited iu the record,plainly appears to cover the land in controversy, and to have been prior in date to that of the appellee, and thus discloses his interest, and his right to he heard as caveator.

Three several caveats were filed by the appellants, the first on tbe 1st November 1855, the second on the 3rd November, 1855, and the third on the 13th February, 1856. The last being the only one verified by affidavit, as required by tbe rules of the Land Office, tbe appellee contends, is the only one entitled to be considered, and at that time the special warrants had expired, and all interest which the appellants might have claimed tinder them had ceased'. It is sufficient to say in answer to this suggestion, that it appears by the very agreement referred to, that a caveat had been filed, and was undisposed of, and therefore under the rules of.the Land Office, the special warrant of the 14th of October 1852, it must be assumed, had not expired. We think the motion to dismiss this appeal should be overruled.

Under the Act of Assembly, the appellants filed their “reasons for appeal.” These are five in number, but it will be necessary for us to notice only the third, which is as follows:

“Because the proof in the cause shows that said Moale was not the owner of any land contiguous or adjacent to that included in said return as vacancy; and that between the land covered by the above specified warrant as vacancy, and that now in the possession of said Moale., there was land shown by the proof in the cause to be the property of, and held and possessed by, persons other than said Moale, and which prevented all contiguity between said vacancy and Moale’s possessions.”

The legal principles asserted in this objection are well established, ihat is to say, a party must he seized in fee of land to entitle him to a warrant of resurvey; and under such warrant, a patent will not be granted for lands as vacancy which are not contiguous. For these elementary rules of the Land Office, it is sufficient to refer to the authorities cited by the appellants in the first and second points of their brief.

The decision of the case therefore turns upon an examination of the facts, as shown by the locations and other proofs in the record. These we have carefully examined, and are all of opinion the appellee has failed to establish the required contiguity. His title is presented by the record in two aspects: First, as derived under the will of his father, John Moale, proved the 11th of July 1*798; and •secondly, as based upon long possession.

1st. As to tbe paper title. This is deduced as follows: The tract called “Upton Court,” containing 620 acres, was resurveyed for John Giles the 29th of March 1723. John Giles devised a part of the same tract to Jacob Giles by will, tbe 8th November 1725. By deed dated tbe 1st March 1732, Jacob Giles conveyed to John Moale a part of “Upton Court,” containing about 200 acres. John Moale devised to Bichard Moale, .who devised to John Moale, (2nd,) father of the appellee, who devised to the appellee 69{- acres thereof.

Upon the true location of the land described in the deed from Jacob Giles to John Moale, the title of the appellee depends. That location as shown by the plot made by Gilbert H. Bryson, surveyor, and returned to the Land Office in this case, fixes the northernmost limit of the land described in the deed, at the line extending from the north-west branch of the Patapsco to X, thence to D on the Middle branch of the Patapsco. If this be the correct location, the result would he that between the line indicated, and the parcel taken up under the warrant as vacancy, there intervenes a space of twelve or fourteen acres, thus destroying the contiguity. This intervening land according to the testimony of several witnesses, is claimed by the heirs of Giles. ^*

The location just referred to was made under the caveator’s instructions, and its correctness depends upon the true location of the line forming the “northernmost bounds of “Upton Court,” which is the second call in the deed.

In this case it is not necessary for us to decide whether the line marked upon the plat as the northernmost bounds of “Upton Court,” is truly located; or whether the. true locacation of “Upton Court” is that claimed by the appellee. Iu the latter case the northernmost bounds would be indicated by the line extending from the north-west branch at the letter P to M. One tiring is quite clear, by the description in the deed, after reaching the northernmost bounds of “Upton Court,” the call is for aline running “south-west two hundred and twenty-five perches (or thereabouts) to the middle branch of the Fatapsco.” If we assume the appellees’’ location to be correct, this line would run írom P to M, and thence continuing the same course to the Middle branch; which would still leave an intervening space of several acres claimed by Giles’ heirs, and equally destroy the contiguity.

2nd. Appellee’s title by possession: In the opinion of this Court, upon an examination of all the testimony, the appellee has failed to prove such acts of user and ownership as to establish his title by possession. In the case of Thistle & others vs. The Frostburg Coal Co., 10 Md. Rep., 130, it was decided that such possession “must be proved with clearness and precision, must cover the full period of twenty years, and must be adverse, exclusive, and unbroken.” That “the acts of user and ownership relied on,, must be such as comport with the title or claim of one asserting ownership against all the world, and not such as may be done with impunity by any and all persons in common with him who claims to be the real, owner.”

Tried by this test, the evidence relied on by the appellee in this case to establish title by possession is altogether inconclusive and insufficient.

With the exception of MountgarrettVlot, which had been occupied but seven or eight years, the land, outside of the line we have indicated as the limit of the appellee’s record title, was for fifty years an open common, over which all persons passed and repassed at will.

There is no evidence that any possession was ever taken or held of lots Nos. 471 and 472, under the lease from Moale to Mackie. The brickyard occupied by the Messrs. Reese as tenants of the appellee, was within his lines. They prove that they were in the habit in the prosecution of their business, of passing with carts, &c., in all directions across the commons, to and from the city, and other points; but such an user of outlying unenclosed land does not constitute acts of ownership such as the law requires, to form a basis of title by possession.

(Decided Feby. 25th, 1864.)

Whether we confine ourselves to the paper title of the appellee as disclosed in the record, or examine his alleged title by possession, we are forced to the conclusion that he has failed to show such a seizen and ownership of the contiguous lands, as to entitle him to claim as vacancy the parcel of land in dispute. Considering the third reason •for tho appeal has been supported, it is not necessary to refer to the others.

The decision of the Commissioner of the Land Office overruling the caveat will be reversed.

Order reversed.

* For Plot here referred to see Appendix A, at the end of the vol..