Day v. Allender

• Decision Date: 10 March 1865
• Citation: 22 Md. 511
• Parties: WILLIAM Y. DAY v. WALTER T. ALLENDER.
• Court: Maryland Court of Appeals

22 Md. 511

WILLIAM Y. DAY v. WALTER T. ALLENDER.

Court of Appeals of Maryland.

March 10, 1865

APPEAL from the Circuit Court for Baltimore County.

This was an action of trespass vi et armis brought by the appellee against the appellant, to the November term 1854. The declaration which contained five counts, charged, with some variations in each count, as to the place and mode, a forcible trespass by the appellant upon the property of the appellee and the cutting down by the appellant of a certain fence of the appellee. The appellant pleaded: 1st. Not guilty; 2nd. A public highway across the locus in quo, and justifying the cutting down of the fence erected by the appellee, because it obstructed such public highway; --3rd. A private right of way from " Taylor's Mount," the residence of the defendant through the locus in quo to the Philadelphia Turnpike Road, created by express grant in 1810, by the then owner of the locus in quo, justifying in like manner the destruction of the fence; -- 4th. Liberum tenementum in the defendant in the locus in quo; --5th. A prescriptive private right of way.

The plaintiff then replied, joining issue upon the first plea likewise upon the second and third pleas, and also new assigning and alleging in his replications to said second and third pleas, distinct trespasses extra viam, joining issue also upon the fourth plea, also upon the fifth plea and new assigning in like manner trespasses extra viam. Demurrers were filed by the defendant to the replications to the 2nd, 3rd and 5th pleas, but they were subsequently withdrawn, and issue joined upon them.

At the trial of the case a great deal of evidence was given setting forth the time, place, and manner of the alleged trespasses tending to prove, on the part of the defendant that the " Old Joppa Road" across which the fence destroyed by the appellant was erected by the appellee, was not included in the lines of the plaintiff's land as properly located: that even if included in his lines, the place of the alleged trespass was part of a public highway immemorially used by the defendant and all others having occasion to travel that way, though no record evidence of its ever having been regularly laid out was produced: also tending to prove the use open, continuous, adversary and under color of right by the appellant of the " Old Joppa Road" for more than forty years. Also that the Old Joppa Road is recognized in the following Acts of Assembly, viz: 1704, ch. 21, secs. 2, 3, 5. 1712, ch. 19. 1724, ch. 16.1827, ch. 21, sec. 5.

The testimony on behalf of the plaintiff tended to show that the " Old Joppa Road" had never been regularly laid out, that it had long since ceased to be used, that in many places it had become impassable, and that even if it should be regarded either as a public or a private way, the defendant had committed a trespass by permitting his wagon to traverse a portion of the plaintiff's land out of the line of said road.

The details of the testimony offered on both sides sufficiently appear, for the purposes of the cause, in the prayers offered by the plaintiff and defendant, and upon which the main questions in controversy arise.

The prayers offered on the part of the plaintiff, which were excepted to, were as follows:

1st. That if they find that either of the closes or pieces of land described in the declaration, was owned by the plaintiff, and that being so owned he caused a fence to be erected across the Old Joppa Road, as stated in the evidence, for the purpose of obstructing the passage of the defendant along and over said pieces of land, and that the defendant was aware of such purpose, and without the consent of the plaintiff, cut down said fence, and also without such consent caused his wagon to be driven along and over both of said pieces of land, as testified by the witnesses Costa and Orso Day, then the plaintiff is entitled to recover upon the pleadings and evidence in this case, unless the jury find that the defendant has established affirmatively that he had a right of way over all the land of the plaintiff so traversed by him or his wagon; and in such case the burden of proof is on the defendant to make out such defence.

2nd. That there is no evidence, that at the time of the alleged trespass, the defendant had a right, either of private or public way, across the piece of land called in the evidence, Dr. Allender's private road.

3rd. The mere use of a road by individuals, no matter how general, or for however long a time, does not make it a public road.

The fourth, fifth and sixth prayers of the defendant, being those which were rejected by the Court, were as follows:

4th. If the jury find from the evidence, that the place where the alleged trespass was committed, is part of the Old Joppa Road, and that the same had been used immemorially as a common highway for all persons and carriages having occasion at all times to pass over said place, and that, during all that time, there never was any obstruction at said place, until the plaintiff erected a fence at said place, at the time stated in the evidence, and that the defendant committed the trespasses complained of, for the purpose of abating and removing said fence, at said place, then the plaintiff cannot recover for such abating and removing of said fence, although the jury may be satisfied that the fence so erected and removed, was placed within the lines of the plaintiff's land.

5th. If the jury find from the evidence that prior to the committing of the trespass complained of, the defendant has used that part of the Old Joppa Road where the fence was erected by the plaintiff, (provided they find such erection,) for forty years, openly and uninterruptedly, without objection on the part of the plaintiff and those under whom he claims, then the jury may and ought to presume a grant of a right of way to the defendant over said part of said road, and the plaintiff is not entitled to recover in this action, in respect to any supposed trespass committed by the defendant in removing any obstruction on said part of said road, although the jury may find that such user by the defendant may have been in common with other persons.

6th. That the pleas of the defendant and the replications thereto, and issues joined thereon, do not entitle the plaintiff to give evidence of any trespass committed by the defendant in the places referred to by the defendant's said pleas, but the plaintiff must show trespasses by the defendant at other places than those mentioned and referred to in said pleas.

The Court below, (PRICE, J.,) granted the first three of plaintiff's prayers, rejecting the fourth: and granted the first three of the defendant's prayers, and rejected the fourth, fifth and sixth. Exception was taken by the defendant to the rejection of his fourth and fifth prayers, and to the granting of the first three of the plaintiff's prayers.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN, and WEISEL, J. J. Prentiss Poe, for the appellant.

1st. That in Maryland, immemorial use is sufficient to establish a highway-- that such immemorial use is proved in this case, and that consequently the appellant was not guilty of a trespass in destroying the fence unlawfully erected by the appellee across such highway. Harrison vs. Young, 9 Georgia, 359. Stetson vs. Faxon, 19 Pick., 147-153. Stump vs. McNairy, 5 Humph., 363. Vooght vs. Winch, 2 Bar. & Ald., 668. Rex vs. Lloyd, 1 Camp., 260. Lansing vs. Wiswall, 5 Denio, 213. 2 Greenleaf on Evidence, sec. 662. 2 Hilyard on Real Estate, 22. 1 Law Reporter, 506. Regina vs. Petrie, 30 Eng. Law & Eq. Rep., 210. 3 Archbold Crim. Law, 607--609, 651, notes. Reed vs. Northfield, 13 Pick., 97-98. Coolidge vs. Learned, 8 Pick., 504. Commonwealth vs. Cole, 26 Penna. St. Rep., 187. Daniels vs. The People, 21 Ills., 442. State vs. Wilson, 42 Maine, 9. Haywood vs. Charlestown, 34 New Hamp., 23. Willey vs. Portsmouth, 35 N. Hamp., 303. Hays vs. State, 8 Ind., 425. Barrickman vs. Commissioners, 11 G. & J., 50-57. Folger vs. Worth, 19 Pick., 108. Washburn on Easements, 101, 127. Reimier vs. Stuber, 20 Pa . R., 458. Kelly's Case, 8 Grattan, 632. Jennings vs. Tisbury, & c., 5 Gray, 73.

2nd. That should it be considered that record evidence of the creation and existence of a highway, is indispensable, and that no presumption of its establishment can be made from the fact of immemorial use by the public, yet in this case the appellant abundantly proved a private right of way growing out of an open, uninterrupted and adversary use of the place of the alleged trespass for more than twenty years. Miller vs. Garlock, 8 Barbour, 153. James vs. Hayward, Sir Wm. Jones, 222. Lansing vs. Wiswall, 5 Denio, 213. Kent vs. Waite, 10 Pick., 138. Moale vs. Mayor and City Council, 5 Md. Rep., 314. Wright vs. Freeman, 5 H. & J., 467. Cherry vs. Stein, 11 Md. Rep. 22.

3rd. That upon the pleadings and evidence in this case, the appellant was not guilty of a trespass on any part of the appellee's land beyond the line of the Old Joppa Road. 2 Greenleaf on Evidence, sec. 662. 2 Hilyard on Real Estate, sec. 3. Stafford vs. Coyney, 7 Barn. & Cress., 257. Act of 1837, ch. 287, sec. 2 and 3. Act of 1843, ch. 212, sec. 3. 2 Greenleaf on Evidence, sec. 635. Darby vs. Smith, 2 M. & Rob., 184. Greene vs. Jones, 1 Saund., 300 a, note g. Pratt vs. Groome, 15 East., 235. Washburn on Easements, 30.

A. W. Machen and R. J. Gittings, for the appellee.

Whatever theoretic views may be taken of the questions raised in the several prayers offered to the Court on one side or the other, the plaintiff was necessarily entitled to a verdict; and as he claimed at the trial and received from the jury only nominal damages, the judgment ought not to...