87 Md. 569 | Md. | 1898
delivered the opinion of the Court.
The Jacob Tome Institute of Port Deposit has appealed from a judgment rendered against it in favor of the administrators of James A. Davis, deceased. Davis brought an action of quare clausum fregit against the appellant, which was continued after his death by his administrators. The merits of the controversy depend on occurrences which took place many years ago. As might naturally be expected, some of them are involved in considerable obscurity. . Before considering in detail the rulings of the Court below, we will state the facts in evidence with their legal effect and consequences, so far as it may be necessary for a decision of the questions presented by the record.
The town of Port Deposit is situated on the eastern bank of the Susquehanna river. In the year eighteen hundred and twelve Hugh Beard made a plat which showed the division of a portion of the village into lots; and this plat was recorded among the Land Records of Cecil County. A number of these lots were exhibited on the plat as reaching down to the edge of the river, and a street thirty-three feet wide was described as beginning at the water’s edge and extending into the river. The western line of these lots and the eastern line of the street, and the edge of the river were coincident with each other. It will be seen that it was the purpose that the street should be constructed in the waters of the river immediately below its margin. In the year eighteen hundred and twenty-four, Sarah M. Thomas leased two of these lots to Elizabeth and Catharine White for the term of ninety-nine years, renewable forever. They were described as follows: “All those two lots or pieces of ground situate and being in a town called Port Deposit, on the northwest branch of the river Susquehanna, in the said
Lots thirty and thirty-one were duly assigned to David White; and in eighteen hundred and thirty-three they were assigned by him to Isaac Nowland. Large additions had been made to them in the meantime by fillings in the river,' and the making of fast land in front of
In eighteen hundred and thirty-nine Nowland conveyed to Allan Anderson part of No. 30 and nearly the whole of
In eighteen hundred and fifty-five White and his wife made a conveyance to Edwin J. Rinehart and his heirs of all that part of a lot or parcel of land known and described as the water privilege of Lot No. 31; and it is stated in the deed that said part of said water privilege is described more particularly as follows, that is to say: “ Beginning for the same at the southwesternmost corner of said Lot No. 31, and running thence by and with the lower or river line of said Lot No. 31 forty feet to the southeasternmost corner of said lot; thence by and with the extension of southeastern side line of said Lot No. 31 sixty feet toward the river Susquehanna; 'thence by a line parallel to the first line of the land hereby conveyed forty feet, and thence by a straight line parallel to the second line hereof sixty feet to the place of beginning, it being a part of the same land which was conveyed to the said David White by one Isaac Nowland, by his deed bearing date on the seventeenth of April, in the year eighteen hundred and thirty-seven. ” This water privilege is described as a part of the land conveyed to White by Nowland by the deed above-mentioned. The Nowland deed describes White’s water privilege as commencing at the top of high-water mark, and running into the river. It bounded on the westerly side of Lot No. 31, as extended, which was the river line of that lot. When the Rinehart deed says that the water privilege conveyed by it
In eighteen hundred and sixty-six White and his wife conveyed to James A. Davis “ the-entire water privilege of lots number thirty and thirty-one;’ ’ in the words of the deed, “ commencing for said water privilege at the top of high-water mark on the river Susquehanna; and running thence into the river, embracing all the entire water privilege of the said two lots on the said riyer Susquehanna, being the same lots the said David White obtained from Isaac Nowland.” We suppose it to be clear that high-water mark mentioned in this deed means the mark which existed at its date. If at this time White owned any fast land bounding on the river, he had the right to extend his land into the water, and he could convey to Davis the same kind of a title which he had acquired from Nowland. He had in eighteen hundred and fifty-five conveyed a tract extending sixty feet towards the Susquehanna from what was the high-water mark at the date of his deed from Nowland in eighteen hundred and thirty-seven. If this sixty feet comprehended all the fast land, which he then had, he had no interest left, and he, therefore, could not convey anything to Davis. It is a question of fact arising on the locations, and .the decision was for the determination of the jury.
A warrant of resurvey having been issued, a great many locations were made by the parties. It has been our purpose in what we have said to indicate the rules by which the locations should have been made, and also to make our opiniori known on the other important questions in the case. We think that we have decided the essential questions before us. But as the case must be tried again, it is our duty to decide all of the numerous exceptions which were taken at the trial. We shall proceed to consider them in detail; for the sake of convenience beginning with the prayers.
We see no objection to the first prayer granted on behalf of the plaintiffs, marked No. 2 in the record. The year eighteen hundred and sixty-four is mentioned in the prayer instead of eighteen hundred and sixty-six. We understood that this matter was explained at the argument. At all events no objection was made on this ground in the Court below or in this Court. Plaintiffs’ No. 3 was properly granted. Nos. 4 and 6 ought to have been rejected, inasmuch as we think that the deed' from White to Davis, as we have already stated, conveyed no land above the high-water mark of the river, as it existed at the date of the deed. No. 7 ought to have been rejected for the reason which we have already stated in discussing the deed from White to Rinehart. On the hypothesis of the thirteenth prayer the plaintiff ought to recover compensation for the damage done by the defendant. This is usually measured by a reasonable rent for the land wrongfully occupied, where there is nothing in the case to authorize punitive damages, and there is no such element in this case. This prayer is not clear on this point, and might mislead the jury into believing that they could allow damages commensurate with the benefit
The exceptions to the rulings on the evidence are next in the order which we have adopted for the decision of the questions on the record. The first exception is to the admission in evidence of the deed from Nowland to White, and the one from White to Davis. It is unnecessary for us to repeat what we have said about these deeds. The next exception was to the competency of the witness Sullivan. The objection was stated to be on the ground that he was not present on the survey. The witness testified in answer to a question by the court that he was present during the survey at the site of the Tome Institute, and was there during the entire day while the county surveyor was making his survey in the case; and no other testimony was offered to the Court on this point. Evidence was given tending to show that Davis had been in possession of the land in dispute using and claiming it as his own property, for more than twenty years. In the third exception a witness testified that during this possession in the year eighteen hundred and seventy-five, Joseph B. Pugh, who was a partner and an intimate friend of Davis, built a cow-shed and a fence around a cow-yard, but before doing so he asked from Davis permission to build them. Defendant excepted to this evidence, but the Court admitted it. The evidence
Because of the errors mentioned, the judgment must be xeversed, and a new trial will be ordered.
Reversed and new trial