Crook v. Pitcher

• Decision Date: 26 March 1884
• Parties: WILLIAM CROOK v. THOMAS J. PITCHER.
• Court: Maryland Court of Appeals

61 Md. 510

WILLIAM CROOK v. THOMAS J. PITCHER.

Court of Appeals of Maryland

March 26, 1884

Appeal from the Court of Common Pleas of Baltimore City.

This action was brought by the appellee against the appellant to recover damages for obstructing a way which the former was entitled to use, and also for obstructing a highway over which he was accustomed to travel. Both roads lay wholly in Baltimore County. The defendant demurred to the declaration. The court (Brown, J.,) overruled the demurrer, the only objection urged by the defendant being that the road, way or highway in the declaration mentioned, was not located or described with sufficient distinctness. At the trial of the case before the jury, Judge Stewart presided.

Exception.--The evidence on both sides being closed, the plaintiff asked the folowing instruction:

If the jury find from the evidence, that the road in question had been used immemorially, as a common highway for all persons and carriages having occasion at all times to pass over the same, and that the defendant obstructed the same by building a fence in the bed of said road, whereby the plaintiff was prevented from using the same, for the proper and legitimate uses of his farm, then the plaintiff is entitled to recover such damages, as the jury, under all the circumstances taking into view the motives of the parties as disclosed in the evidence, should think proper to allow.

The defendant offered the followng prayers:

1. That the first count in the declaration is defective, and the verdict must be for the defendant on said first count.

2. That the jury, cannot find a verdict for the plaintiff, unless they find from the evidence, that the owners of the land over which the road in question is claimed, surrendered their right in the same, and abandoned it to the public, without claiming any control over the same as owners.

3. That the jury cannot find a verdict for the plaintiff, unless they find from the evidence, that for twenty years without interruption, the public has used the whole extent of the road from Bird River, to the public highway leading to Chase's Station, as mentioned in the declaration adversely to the owners of the land over which the road runs and without their consent, and in denial of their right to prevent such use by the public.

4. That the verdict must be for the defendant in this case, because the action is local, and ought to have been brought in Baltimore County.

The court (Stewart, J.,) gave the instruction prayed by the plaintiff; and the plaintiff conceded the first prayer of the defendant; the court granted the third prayer of the defendant, but refused his second and fourth prayers. The defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before Alvey, C.J., Yellott, Stone, Miller and Robinson, JJ.

William S. Bryan, Jr., and John T. Ensor, for the appellant.

Fielder C. Slingluff, for the appellee.

Robinson J., delivered the opinion of the court.

The declaration contains two counts:--First count for obstructing a right of way belonging to the plaintiff; and the second for obstructing a highway used by the plaintiff in going to and coming from the post-office, markets, school, and hauling the produce from his farm, in consequence of which he was obliged to use a longer and more circuitous road. The way or road thus alleged to have been obstructed lies in Baltimore County, and the venue is laid and the suit is brought in the Court of Common Pleas of Baltimore City.

The first question arising on the demurrer, is whether the plaintiff had a right to sue the defendant in Baltimore City?--and this depends upon whether the cause of action is local or transitory

In the earlier history of the law, the plaintiff, as is well known, was required in all actions to state with the utmost certainty, not merely the county, but the particular district or hundred, within which the cause of action had arisen. This was necessary in order that the sheriff might summon as jurors, persons from the immediate neighborhood, who were presumed to be acquainted with the nature of the transaction, which they were called upon to try, and who were liable to be attainted, if they rendered a wrong verdict. This was soon found, however, to be extremely inconvenient, especially in mixed transactions which might happen partly in one place, and partly in another, and hence arose the distinction between local and transitory actions. If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one's right of way, are according to all the authorities local.

On the other hand, actions for injuries to the person, or to personal property, actions on contracts, and in fact all actions founded on transactions, which might have taken place anywhere, are transitory. Mostyn v. Fabrigas, Cowp. 161; Berwick v. Ewart, 2 W. Bl. 1036; Com. Dig. Action N., 12.

Where the action is local, and the suit is brought in another...