5 Md. 237 | Md. | 1853
delivered the opinion of this court.
This is an ejectment, for a tiact of land called “Skipnish,” in Allegany county, patented to John Swan, under whom the plaintiffs claim, in 1803. The defendant below (the appellant) claims title to a part of this tract under a survey made for John Hoye, in pursuance of the act of 1839, ch. 34, the certificate of which was assigned to the appellant and a patent, issued to him, on the 4th April 1842, for “Ratler.” ,
The defendant took five exceptions, the first four to refusals of the court to grant prayers tendered by him, and the fifth, to one granted at the instance of the plaintiffs.
The first and second exceptions present questions underthe act of 1839, ch. 34, the first asserting that the patent granted to the defendant for Ratler “is a positive bar by limitations,”, apd the second, that if not a bar it is evidence of adverse possession by John Hoye, claiming title for twenty years prior to the date of the survey under which that patent was granted.
The act of 1839 is supplemental to that of 1818, ch. 90, entitled: “An act to quiet possessions and prevent suits at law.” The counsel for the appellant insists, (hat they must be construed together, and that when so construed, the last must receive the construction put upon it by him, viz., that it applies to any lands, vacant or not, because the legislature must have intended to confer some right not granted by the former act. This would be a strong argument in a case in which it was clear that no other additional right was conferred but the one contended for on this appeal. But even then it might be well doubted whether the legislature did not exceed its authority in passing the act. The State may take private property for public purposes, but she has no more right to take one man’s land and confer it upon another, than that other has to take it for himself without the assent of the owner. Does it need any argument to show that the State cannot any more than a citizen grant what she does not own? Cases of conflicting grants not unfrequently occur. The elder patent prevails over the junior for the simple reason, that the State, in granting the last, has undertaken to do what she could not accomplish — to pass a title to land that did not belong to her. So in escheat patents, the party claiming against the patent may show that the State had no title at the time of the grant, because the land was not liable to escheat.
The third exception presents the question of title by limitations, the defendant showing no title. This leaves out of view all notice of the act of 1839, and we are now to consider the case as if that act and the proceedings under it had not been introduced. It appears that John Swan’s patent was granted in 1803, for eight hundred and eighty-eight acres, when that section of the State was in a wild and uncultivated condition,
Within two years after taking possession a fence enclosure was made of a few acres, one line of which remains, but no part of this enclosure is within the lines cf “Skipnish.” W'ithin its lines, however, there is a portion of about ten or fifteen acres on which Childs cut rail timber and fire-wood, and probably some building timber; and the witness showed the stumps of six of these trees that he had cut more than twenty years before 1851. At a greater distance from the dwelling.; and on “Skipnish,” he showed the stump of a tree near an old tar-pit which had been cut down for boards. This tar-pit was burned by Childs (bitty years before. The land near to and surrounding the tar-pit was then used by Childs. The whole of this land was run out by John Hoye at the lime of the lease, and is the same that is now called “Rader.” Childs lived on the land as Hoye’s tenant for seventeen years,' and was succeeded by Summers. The witness also says, that during all this time Hoye had peaceable possession of (he land and kept off all persons trespassing thereon, but he does not show the character of this possession. It does not appear that the plaintiffs, or those under whom they claim, ever had actual possession of any part of the land.
The counsel for the appellant concedes, that if the plaintiffs had actual possession of any portion of the land covered by their title, the defendant could not recover upon adverse pos-
It is not deemed necessary to refer to the cases in other' courts, (they are numerous and some not easily reconciled with others.)- because we think that the Court of Appeals of Maryland has not made any distinction between the case propounded by this prayer, and what is commonly understood to be one of mixed possession, that- is- to say, where a person having title to the whole is in- actual possession of a part, and another without title is in actual possession of the other part, without enclosures. As against a wrong-doer claiming title by possession alone, the law is the same, whether the real-owner be in actual possession of any part of the land or not.-
The doctrines of adverse possession are treated of in Casey vs. Inloes, 1 Gill, 500, and the cases of Davidson vs. Beatty,
The learned judge also refers to a case in 1 Cowen, 609, to show “that entry under claim of title is generally sufficient to constitute an adverse possession, and it is not material whether the title be valid or not. But if claim is not founded on a deed or writing, the possession is limited to actual occupancy and substantial enclosures, definite and notorious.” Also to Jackson vs. Schoonmaker, 2 Johns., 230, where it is said: “To make out an adverse possession in ejectment, the defendant must show a substantial enclosure, an actual occupancy, definite, positive and notorious.” It does not appear that in these two cases the real owners were in possession of any part of the land; whether they were or not, the ruling of the courts is not placed on any such ground, but the doctrine is broadly stated, without any qualification whatever, and we suppose that the Court of Appeals, in deciding Casey vs. Inloes, so understood them. We are fortified in this view by the fact, that the case of Potts vs. Gilbert, 3 Wash. C. C. Rep., 475, is also referred to as establishing the same doctrine, in which it appears that the actual owner had not been in possession for many years before the suit was commenced.
Independently of this recognition, by the Court of Appeals, of this distinction, shown, as we think, by the opinion to which we have referred, prepared by an eminent judge, himself high authority on all questions of ejectment law, there are other cases to the same effect. In Cresap vs. Hutson, 9 Gill, 273, the question was, whether the plaintiff could, pending the suit, convey the land in controversy of which the defendant had adverse possession? The counsel for the appellant insists, that that was a case where the plaintiff was in actual possession of part of the land, and was theréfore seized of the whole,
In Ridgely vs. Ogle, 4 H. & McH., 123, the property was a large body of wood-land, unenclosed and unoccupied, except by the defendants, and those under whom they claimed. And so in the case of Hammond vs. Warfield, 2 H. & J., 158, where it is said, “a naked possession (possession without right,) is only adversary to the extent of actual enclosures,” the court were deciding upon the exclusive possession of the defendant.
In Miller vs. Shaw, 7 Seargt. & Rawle., 129, there was evidence offered of a possession by the plaintiffs in answer to the
The cases in 2 Johns., 230 and 2 Gill & Johns., 173, do
In 9 Gill, 276, it is said to be “a settled principle in the law apparently all the States, that title to lands from the commonwealth draws the seisin or actual legal possession to it; so that one who has title derived out of the State, is, by force of his title, in possession until an ouster or disseisin is committed by some one entering upon the land with a claim of possession adversely to him,’’ for which reference is made to 2 Smith’s Lead. Cases, 413.
The opinion of Washington, J., in Potts vs. Gilbert, (3 Wash. C. C. Rep., 475,) is often referred to, and by the Court of Appeals, in 1 Gill, 501. The facts of thatcase are free from doubt, and nothing can be plainer than the terms in which the rules of law on this subject are there stated. The plaintiff had made no entry on the land since 1788 : the alleged adverse possession commenced in 1793, and had continued for more than tw-enty-one years. The only defence seriously relied upon was the act of limitations, and the judgment was pronounced on that state of case, (477.) The court said: “In the construction of the statute it has always been held, that the actual entry of the owner is not necessary to prevent the operation of the law, unless an actual adveise possession is taken by a stranger, from which time, and not before, the limitation begins to run.” And after stating that the grant of land passes at once the legal possession to the grantee, he says: “The adverse possession, before mentioned, must not only continue, but it must continue the same in point of locality, during the prescribed period of time, sufficient to constitute it a bar; that is to say, a roving possession from one part of a tract of land to another, cannot bar the right of entry of the owner upon any part of the land which had not
•What constitutes, in a case like the present, such an adverse possession in a trespasser as will turn the real owner out of possession, is a different question. In some of the
We acknowledge the force of the argument, that titles depending upon long continued and uninterrupted possession, rest upon plain principles of reason and policy, and that disputes in regard to titles and boundaries should not be encouraged or revived after the lapse of many years. This is the principle on which courts generally act in these cases. In Maryland the doctrine is fully recognized. But we must remember that whilst presumptions are not made in favor of a tort feasor, they' are very often made in behalf of the real owner as against one having no title. These titles by limitation, however, when established must prevail; and hence, when a party enters upon land which he knows does not belong to him, with intent to make it his own by possession alone, and without compensation to him who has acquired the title by purchase, or in some other legal mode, there is nothing unreasonable in prescribing to him the most rigid rules, and in exacting from him a compliance with all the requirements of the law, whatever they may be. If by these means he succeeds in retaining what he has actually grasped, he secures to himself what public policy, not justice, allows, and should be satisfied with his gains.
According to these principles, there not being sufficient evidence to sustain the third and fourth prayers offered by the defendant below, they were properly refused.
The fifth prayer was offered by the plaintiffs and granted by the court. If, as the record shows, John Hoye had no title to the land in dispute, and was a wrong-doer at the time of his entry, it is manifest that he could pass no title to the defendant except that acquired by possession, which we have
We agree with the court below on- all the exceptions, and'affirm the judgment-
Judgment affirmed.