| Md. | Jan 8, 1864
delivered the opinion of this Court :
This action was instituted by the appellees against the appellant, for the recovery of certain penalties under the Act of 1722, ch. 8, entitled, “An Act for preventing the destroying of boundaries, or bounded trees, and the bounding of trees, or setting up of boundaries, without lawful authority.”
At the trial.of the cause below, after the evidence had been submitted and closed, the appellant presented four prayers, involving the interpretation of this Act. A judgment for the plaintiff was entered pro formo., that the case might be brought up to this Court, where no exception has been taken in the argument to the form of the prayers. Considering the case as argued before us on the interpretation of the Act, we proceed to its construction.
No authorities have been cited by the counsel on either side, in support of their conflicting views of the interpretation of this Act, whence it is concluded, none are to be found. Our own examinations have led to a like result. The Court is therefore left to the usual - rules of construction.
The preamble of the Act recites, “that many abuses and prejudices have happened to many of the inhabitants within this province, occasioned by private persons taking upon themselves in a private manner, the bounding or rebounding of trees, whereon the bounds either of their own lands or any other adjacent lands that may have any dependence, and also, by bounding of trees at random in the woods, the multiplicity of which renders the true boundaries of lands very precarious and uncertain; and likewise by the cutting down or destroying of bounded trees, either of or upon their own lands, or any others; for the remedy of
It tints appears the bounding of trees without lawful authority, is prohibited tinder the same penalties as the distraction of boundaries. To make the act consistent with itself, it could not be intended that boundaries which were prohibited, were meant to be protected. Being a penal Act, it must be construed strictly. lienee, we have no difficulty in deciding that the boundaries, the destruction of which was prohibited, were boundaries established by some legally authorized person, surveyor, officer or agent of the Stale or comity, upon surveys made by public authority, or boundaries substituted for them in the manner prescribed by law, or other boundaries, which had acquired a known character and reputation, and not such boundaries as private persons, taking upon themselves in a private manner the hounding or re-bounding trees, should set up and establish.
The supposed boundary said to have been destroyed in this case, was a call in two deeds from one Griffith to Kennard, the plaintiff, the one dated the 22nd of August 1835, for four acres and sixty-nine perches; the other dated the 13th June 1851, for one and three-quarter acres and twenty-two porches. The defendant proved that the tree, if a boundary at all, was a boundary fixed upon by Griffith and ivennard, and offered to prove it stood on the defendant’s lands. No evidence was offered to show the tree had acquired any known character as a bounclary, or was known to the defendant as such, or had been established with the knowledge and consent of the defendant or any proprietors of adjacent lands, it was clearly a boundary set up by private persons, in a private manner, and as such, not entitled to the protection of the law. It is not necessary to
Judgment reversed.