Browne v. Trustees of Methodist Episcopal Church in City of Baltimore

• Decision Date: 18 December 1872
• Citation: 37 Md. 108
• Parties: CHARLES C. BROWNE v. THE TRUSTEES OF THE METHODIST EPISCOPAL CHURCH IN THE CITY AND PRECINCTS OF BALTIMORE.
• Court: Maryland Court of Appeals

37 Md. 108

CHARLES C. BROWNE v. THE TRUSTEES OF THE METHODIST EPISCOPAL CHURCH IN THE CITY AND PRECINCTS OF BALTIMORE.

Court of Appeals of Maryland

December 18, 1872

Appeal from the Circuit Court for Baltimore County.

This was an action brought on the 2nd of December, 1871, by the appellant against the appellees to recover damages for the obstruction of an alleged right of way. At the trial below the plaintiff offered in evidence the Act of 1849, ch. 323, a supplement to an Act authorizing the defendants to hold certain lands as a burial ground; a notice to the defendants to remove the obstructions to the road; the record of the case of Bujac v. Browne, et al., in the Circuit Court for Baltimore County, in equity, as also the record of the case of Bousquet v. Guestier, in the Superior Court of Baltimore City, in equity, the various deeds under which the parties claimed, and a copy of the will of Elizabeth Lawson. By this will admitted to probate in February, 1814, the testatrix directed her executor, Charles C. Browne, the father of the plaintiff, to lay off ten acres of land, adjoining her dwelling house in Baltimore County called "Font Hill," which she devised as follows "I do hereby devise and bequeath the said dwelling house called 'Font Hill,' with the land and appurtenances before mentioned, to be laid out as directed, unto Charles C Browne, and his heirs, in trust, to permit Sarah Browne to take and receive the profits during her natural life, or to reside thereon, if she shall think proper; but if she shall not reside thereon, it is my will and desire, that the same shall remain in the hands of the said Charles C. Browne, he paying over to her the annual rents and profits thereof during her natural life, and at the death of the said Sarah Browne, I give, devise and bequeath the said dwelling, with the appurtenances, unto the heirs of her body lawfully begotten, and failing such heirs, unto Elizabeth Browne, daughter of the said Charles C. Browne, and to her heirs forever."

The residue of her real estate, the testatrix directed her executor to sell and "to convey the same to purchasers absolutely and in fee simple."

Elizabeth Browne mentioned in the will died about 1826 or 1827, intestate, unmarried, and without issue. Sarah Browne died in 1855, intestate, unmarried, and without issue. The plaintiff became the owner in fee of "Font Hill," and the ten acres adjoining, under proceedings in the case of Bujac v. Browne.

The plaintiff offered in evidence a plat of Font Hill, signed Cornelius Howard, May 1st, 1815, and introduced evidence tending to show that it was the identical plat referred to in the several deeds, as having been exhibited at the sale of the property of Mrs. Lawson, by her executor. A witness for the plaintiff testified on cross-examination, that the road leading through the property claimed by the appellees, being Mount Olivet Cemetery, was closed by a Mr. Patterson, when he bought the property in 1829. Other evidence in relation to this road will be found in the opinion of this court.

A witness in behalf of the defendants testified that he was one of the trustees and also one of the committee to take charge of Mount Olivet Cemetery, and that he never heard of a claim of a right of way through the property, by the plaintiff prior to this suit.

Plaintiff's Exception: The plaintiff asked the following instruction:

If from the evidence the jury find that Elizabeth Lawson was seized of the land embraced in the plat offered in evidence by the plaintiff, that she died leaving the will offered in evidence by the plaintiff, that Charles C. Browne, her executor, sold and conveyed the several parts of said land of said Elizabeth Lawson to Guestier, known on said plat as "Nos. 1 and 2, 3 and 8," by the deeds offered in evidence, and that the defendants hold the said tracts so sold to Guestier, by the mesne conveyances offered in evidence. If they further find that said plot so offered in evidence, is the plot referred to in said deeds offered in evidence. If they further find that the said Sarah Browne, named in said will of Elizabeth Lawson, died in 1855; that Elizabeth Browne, named in said will, had previously died intestate, unmarried and without issue, and that her heirs-at-law were Charles C. Browne, the plaintiff, Mary E. Browne, Ellen E. Wilson, wife of Dr. Thos. Wilson, and Charles J. B. Mitchell, and that said C. C. Browne, the said executor, died intestate, leaving as his heirs-at-law, said C. C. Browne, Ellen E. Wilson, and his widow, Martha T. Browne; that said widow died also before the bringing of this suit; that Robert Browne, named in said will, died intestate in 1856, leaving James T. Browne, his sole heir-at-law. If they further find that said heirs-at-law of Elizabeth Browne, said heirs-at-law of said C. C. Browne, the elder, and said heirs-at-law of Robert Browne, were parties defendants to the action of Bujac v. Browne, in the Circuit Court of Baltimore County, in Equity, the record of which was read in evidence, and that said C. C. Browne, the plaintiff, under the decree in said cause, acquired all the right, title and interest of all the parties to this cause. If they moreover find that the road marked on said plat between lots 3 and 8, and east of lot 1, is the road in controversy in this suit, and was actually in existence at and subsequent to the time of said conveyances from Browne, executor, to Guestier, and was used as a road connecting Font Hill with the Frederick Turnpike Road, as testified before them, and that the defendants caused to be erected a fence which prevents the use of said road, as testified before them, then they must find for the plaintiff, although they should further find that said road has not been actually used by the occupants of Font Hill since it was obstructed by Patterson in the manner testified before them, if they find such obstruction to have been so made, nor although the defendants themselves, prior to the late erection of said fences, had obstructed said way by planting trees or burying the dead.

The court (Yellott and Watters, JJ.) refused to give the instruction and granted, the following prayer of the defendants:

2. If the jury shall find that the defendants, and those under whom they claim had, prior to the bringing of this suit, enjoyed adverse possession of the bed of the road in question for more than twenty years, then the plaintiff is estopped from setting up any claim to the reopening of said road, and is not entitled to recover in this action, although they shall further find that the said road existed at the time of the sales of Font Hill by Charles C. Browne, executor of Elizabeth Lawson, as delineated on the plat of Font Hill, offered in evidence, and that the said plat is the identical one mentioned in the deeds from said executor to Peter A. Guestier, offered in evidence, and that the plaintiff, and those under whom he claims, were entitled to the use of said road before its closing.

To this ruling of the court the plaintiff excepted.

Defendant's first exception.--The plaintiff offered a plat of Font Hill, signed Cornelius Howard, May 1st, 1815, coupled with an offer to prove that it was the identical plat referred to in the several deeds put in evidence, as having been exhibited at the sale of the property of Elizabeth Lawson by Charles C. Browne, executor. The defendants objected, but the court overruled the objection and the defendants excepted.

Defendants' second exception.--The defendants offered the following prayers besides the one which the court granted:

1. If the jury shall find that the defendants purchased the property known as ""Mount Olivet Cemetery," from Lancaster Ould and wife, in 1849, and proceeded at once to dedicate the same for burial purposes, and have ever since continued to use the said property for that purpose; and shall further find that the road in question would, if reopened, pass over and through the graves actually occupied by the bodies of the dead, then, for considerations of public policy, the said road should not be re-opened, and the plaintiff is not entitled to recover in this action, although they should further find that the plaintiff, and those under whom he claims, were entitled to the use of said road before its closing.

3. If the jury shall find that the plaintiff's lands were held in trust for Sarah Browne during her lifetime, with remainder over to the plaintiff and others, then it was the duty of the trustees holding the legal title of said property, to prevent the closing of the road in question, and from his failure to do so for more than twenty years, it may well be presumed that he has been prevented from objecting in consequence of the use of said road-bed by the defendants being rightful.

4. If the jury shall find that the defendants have been the owners of the property known as 'Mount Olivet Cemetery," since the year 1849, and have been since that time engaged in improving, and expending money thereon to fit it for burial purposes, with the full knowledge of the plaintiff, and without any intimation from him of a claim to a road through the property, then the plaintiff is not entitled to recover in this action.

These prayers the court rejected, and the defendants excepted. The verdict and judgment being for the defendants, the plaintiff appealed.

The cause was argued before STEWART, BRENT, MILLER and ALVEY, JJ.

Michael A. Mullin and William Shepard Bryan, for the appellant.

Both parties claim title under the will of Elizabeth Lawson; the appellant to the dwelling house "Font Hill," and the ten acres adjoining directed to be laid off by the executor; and the appellees to portions of the estate directed by the testatrix to be sold. The executor in...