Wood v. Ramsey

71 Md. 9 | Md. | 1889

Irving, J.,

delivered the opinion of the Court.

This is an action of trespass quare clausum fregit, and the controversy seems to turn wholly on the proper location of the divisional line between the parties. William Morton devised a tract of land, containing twelve hundred and thirty-four acres, to his wife for life, and then to be equally divided between three children. The widow died, and the tenants in common executed deeds of partition to each other. The appellant and the landlord of the appellee own parcels which are supposed to bo coterminous along the line where the trespass is alleged to have been committed; in fact, for the distance of five hundred and ten perches, comprised in only two lines. The deeds bear the same date; that is, the deed of the appellant’s predecessor in title, and the deed of appellee’s landlord were executed at the same time, as partition deeds, so that neither can take priority over, and be superior to, the other as a title paper; but they must be reconciled.

The plaintiff declared for trespass upon a tract of land conveyed to him by George W. Tinges and George H. Hargeaut, trustees, dated the 28th December, 1883. The grantors were trustees appointed by the will of Margaret E. Morton, to whom one of the deeds of partition, executed on the 3rd of December, eighteen hundred and sixty-nine, was given. These trustees conveyed to the appellant by courses and distances the same land, and by the same description and calls as are own in Margaret E. Morton’s deed from her co-tenants in common, which is in evidence. By comparing that deed and the deed of the defendant (the appellee) we find that the third and fourth course and distance of Margaret E. Morton’s deed, and the first and second course and distance of the appellee’s deed make the divisional line between the litigants. The distances are the same in each case, and the courses are the reverse of each other. The call at the end of the fourth course of the appellant’s deed, is the beginning of Mrs. Bowen’s deed, (Mrs. Bowen being the defendant’s landlord,) and in each deed is described in the same words, or in the same, way, to identify it as the same point, viz., “a, stake upon the shore of the Patfixent river near a Avater-fence, three perches from a stake at the beginning of the twenty-eighth course of the survey made as aforesaid by the commissioners to mark and bound said land.” The deeds of partition recited the marking and bounding of William Morton’s land by commissioners appointed by the Circuit Court for Calvert County, after the death of Wm. Morton.

Upon application of appellant a warrant of resurvey was issued, and sundry locations were made by each side, which are in the record. The plaintiff began the location of his deed at the end of the first line of his deed, as he claimed it to be, at a granite stone No. 2, set up bjr the commissioners, to mark and bound the land of William Morton, Avhich seems to have been conceded as a boundary of the whole tract of William Morton; but the record evidence of that marking and bounding, appears by the proof to have been destroyed by fire. From that granite stone, the plaintiff (the appellant) after allowing for variation of the needle, ran the second and third lines of his deed by the deed; and then finding the fourth course would not take him to what he claimed to be the call on the Patuxent river, he ran the fourth line without respect to the course or distance, to the point designated on the plats as letter “P,which he claimed as the call, and of which he offered some evidence, tending to show' it was the call. The appellee claims that the call on the Patuxent river, mentioned as the beginning of his deed and the end of the fourth line of appellant’s deed, is at a different place, and offered evidence tending so to prove. From this beginning (as he claimed) of his deed, lie ran the divisional lines between himself and the appellant so as, according to his contention, to show there was no trespass. The verdict was for the appellee; and tlie appellant now contends that there ivas error in rejecting his third prayer as offered. in granting only one portion thereof, and in granting the defendant’s prayer.

We think the appellant has no ground to complain of the rulings on his behalf. His first and second prayers, which Avere granted, certainly seem to have given him all he was entitled to claim. If ho could satisfy the jury.that his location of the point on Patuxent river ivas ivliere he claimed his fourth line ended and the appellee's deed began, then, under the instruction granted him, .the jury could find his location accurate, and give him the verdict, if they also found his starting point right.

The third instruction, in lieu of Ms third prayer, could only he understood as saying that proper location involved a proper allowance for the variation of the needle. It could’ not mislead; hut though, in effect, the same statement was in the third prayer, it was coupled with a proposition which could not he assented to as stated. The prayer assumed, and asked the Court to assume, that the first line of his location ivas properly located, and'that granite stone Ho. 2 was the proper beginning of the second line of his deed; and then asked the .jury to he told that the true way of finding the divisional line, ivas to take the first line of his location as established; and then to skip from its end to the river, and finding the common point on the Patuxent river, (which was the end of his fourth line, and the'beginning of the appellee’s deed,) reverse his fourth line, for the space of one hundred and sixty perches to a point where a stake with eight notches was set up according to the deeds when originally located, but which can not now be found, and thence by a straight line' to the end of the first course and line from granite stone No. -2, which he had located, thus treating the end of that located line as if it was an imperative call, which was to be gratified by total disregard' of course and distance when he left the point where the stake with eight notches is supposed to have stood, and which is narqed in his deed as .the end of the line. It is plain that the Court could not grant that instruction. Indeed, he did not need it, and was not injured by its rejection, for his location of his deed included the lociis in quo, and if the jury found that location correct, he was entitled to recover, otherwise not. If his deed was found to be properly located, it also established the defendant’s lines. Another mode of establishing the divisional lines existed. Establishing the common call on the Patuxent, and then running the two first lines of defendant’s deed, which would be reversing the fourth and third lines of the appellant’s deed/ ought to give the true divisional line between the contestants; for the dee(ls were.intended, on those lines, to be the reverse of each other, and leave no intervening land.

If, by running the divisional lines in that way, certain objects well known and established as being on the divisional line as originally run, or near it, are not touched or found near the line thus run, there may be reason for questioning the correctness of the starting point; or the correctness, or accuracy of the original survey, or of this one ; or the correctness of the variation of the needle now allowed by the surveyor; or it may raise doubt whether there was not error made in entering the course in the deeds ; hut it cannot discredit that method of establishing the true divisional line between the parties. Metes and bounds always control courses and distances. Material and certain calls when they can be found will invariably control. Wilson vs. Inloes, 6 Gill, 92 ; Friend vs. Friend, 64 Md., 331. If the call can not be found then the course and distance must prevail. Ib. Therefore if the point on the Patuxent river can not be fixed as the imperative call for the plaintiff’s deed, so that it can be located with certainty, of course it must be located by course and distance, with proper variation of the needle, and that would establish the line of division.

The appellee’s prayer can not be regarded as the converse of the appellant’s prayers. It put his side of the case to the jury in a most misleading way ; for it relied on the location of the divisional line as he located it, the correctness of which does not seem to be supported by evidence ; which is the appellant’s contention, as certified in the bill of exceptions.

He begins his first location at a point designated on the plats as stake M. In fact this point is on the line first located by appellant, but why defendant starts at that point is not explained; and there is no evidence touching it. It appears, therefore, to be an arbitrary starting point, from which he runs a line corresponding in course and distance with the third line of appellant’s deed, and from the end of that line he draws a straight line to what he claims the call to be on Patuxent river. For a second location he starts at the call on the river, as lie claims it, and offers proof thereof, and then, running the first course and distance of his deed from the end of that line, he runs a straight line to stake M, as if it were an imperative call, justifying departure from the course. This is not locating the first two lines of his deed; and the jury could not properly be told that, if they found those lines “to be embraced in the courses- and distances of the land described ’ ’ in his deed, ‘ ‘ the plaintiff could not recover.” There is a plain variance from his deed and no evidence to justify it. The whole controversy and alleged trespass are along the line from stake “M” and the point where the stake with eight notches once stood. The true location of that line was the thing to be settled. That prayer allowed the jury to consider a location which involves the assumption of a bounder at stake “M,” in each location, of which there is no proof. In making his second location, if the appellee had made his first and second lines conform to his deed, making due allowance for the variation of the needle, and had confined his prayer to that location, it would have been unexceptionable. For the error in granting the defendant's prayer as framed, the judgment must be reversed.

(Decided 10th May, 1889.)

Judgment reversed, and new trial ordered.