84 Md. 414 | Md. | 1896
delivered the opinion of the Court.
The appellees sued the appellants, Philip M. Spencer and Jarrett Spencer, in Harford County, and the case was removed to Howard County. On the 28th day of March, 1896, a jury was sworn in the Circuit Court for the latter county to try the issues joined, and on April 9, 1896, there was a “ motion to amend declaration and to strike out the names of Philip M. Spencer and Jarrett Spencer, two of the defendants, from the writ and all subsequent proceedings in this case.” The next entry appearing on the very imper-
A demurrer was filed to the declaration, but it was not pressed in this Court. The defendants filed on the same day, April 9, 1896, a plea in abatement to the amended declaration, which is set out in the record with the following entry just below it: “ Motion ne recipiatur to said first plea and motion granted.” On the same day four pleas in bar,' marked second, third, fourth and fifth pleas to the amended declaration, were filed. The second was the general issue plea, and the third, fourth and fifth were demurred to,- and the demurrers were sustained. On the 16th day of April, 1896, two other pleas marked the sixth and seventh were filed, and there is an entry in the record, “ demurrer to the sixth plea and motion ne recipiatur to the seventh plea. . Demurrer and motion ne recipiatur sustained.” On the 17th day of April there was a verdict for the plaintiffs, and after a motion for a new trial was overruled judgment was entered thereon and an appeal taken. The record shows that exceptions had been taken during the trial, but as they are not in the record we are confined in our inquiries to the questions ■ presented by. the rulings of the Court below on the pleas.
The first point urged in this Court is in reference to the ruling on the first plea, which was filed in behalf of all the defendants, and alleges that at the time of the issuing of the summons in the case “ another suit or action was pending in the Court of Common Pleas of Baltimore City in this State, in which the said plaintiffs in this case are plaintiffs against Joseph E.’ Spencer and J. Herman, two of the defendants to this suit (and one Jarrett Spencer), on the same causes of action in said amended declaration mentioned and described, and which said suit is pending at this time.” There is nothing in the record concerning the action of the
The rulings on the third, fourth, fifth and sixth pleas will be considered together. The declaration alleges that the defendants did unlawfully, wrongfully, wilfully and maliciously break and enter the lands of the plaintiffs, and did then and there unlawfully, wrongfully and maliciously use and occupy said lands “by placing thereon and using stationary floats and other contrivances and devices for fishing in the waters of the Susquehanna River adjacent to said lands, whereby the plaintiffs were deprived by the defendants of the beneficial use and enjoyment of said lands as a fishery, as well as deprived of other uses to which said lands were suited and profitable to the plaintiffs.”
These pleas are intended to raise the same question. The third, for example, alleges that the plaintiffs’ closes are a part of the bed of the Susquehanna River covered by the navigable waters of the river where the tide flows and reflows, where there is a common fishery wherein all citi
The seventh plea is defective. Objection is made to its having been disposed of by a motion ne recipiattir. The proper way to raise the question was by a demurrer for want of equity, but as it is so manifestly bad, the defendants were not injured by the method adopted.
Although the question as to what rights the plaintiffs had in the navigable waters of the Susquehanna was argued at length, and with ability, we will not now determine it, as it
Judgment affirmed with costs to the appellees.