Douglass v. Boonsborough Turnpike Road Co.

• Decision Date: 31 October 1864
• Citation: 22 Md. 219
• Parties: ROBERT DOUGLASS v. THE PRESIDENT AND MANAGERS OF THE BOONSBOROUGH TURNPIKE ROAD COMPANY.
• Court: Maryland Court of Appeals

22 Md. 219

ROBERT DOUGLASS v. THE PRESIDENT AND MANAGERS OF THE BOONSBOROUGH TURNPIKE ROAD COMPANY.

Court of Appeals of Maryland.

October 31, 1864

APPEAL from the Circuit Court for Washington County:

This was an action instituted by the appellant against appellees on the 7th of August 1857. The declaration which is in trespass contained four counts: 1st. For breaking and entering plaintiff's close, called " Moreland," cutting down and carrying away trees, cutting and digging the soil; digging up to and under the fences of the plaintiff and undermining them, throwing down the fences and gates, and digging near the foundation of his barn and removing the earth and rendering it insecure. 2nd. For entering said land digging the soil and causing gutters and channels, so that water could and did run over the fields; and making high embankments by digging along the fences and gates on the private roads and ways of the plaintiff, used for passing with wagons, & c., to his fields and barn, and cutting away the earth, so as to render the gates useless, & c 3rd. Is similar to the 2nd, or a repetition of it in general language. 4th. Charges that through said tract, called " Moreland," the public road leading from Sharpsburg to the Potomac river, passed and had run for a long period of time, and that the plaintiff had and ought to have had certain ways and roads for wagons, & c., leading from said public road on each side into his fields and to his barn, and so used and enjoyed the same, but the defendants with a view to injure the plaintiff, and deprive him of the use of said private ways and roads, and render inaccessible his gates, cut and dug the earth and made gutters and trenches along on both sides of said public road, and across said private ways and roads, so as to greatly obstruct the same, & c.

The defendants pleaded: 1st. That they did not commit the wrongs alleged in the declaration. 2nd. That they did what was alleged by the plaintiff's leave. 3rd. Limitations. 4th. A plea of justification, under the Acts of 1814, ch. 71, and 1852, ch 266.

The plaintiff replied as follows: 1st. Joinder of issue on the first plea. 2nd. A traverse of the leave or license alleged in the 2nd plea. 3rd. That the causes of action did accrue within three years before bringing of suit. 4th. That the wrongs complained of were continuous and did continue from their commission to the time of bringing the suit, all the while subjecting him to loss and injury. 5th. That the defendants were not entitled to the said highway over the plaintiff's land as alleged in the 4th plea. 6th. That the alleged trespasses were not the legal and proper use by the defendants of said highway, mentioned in the 4th plea. 7th. That the defendants, before committing said acts, did not pay, nor ever have paid to the plaintiff any compensation for the privilege of grading, using and occupying said road, running over his land, nor did they ever agree with him or take inquisition by jury in the premises as to the damages to be paid for the privileges and use of said road, before or since said act. 8th. As to the 4th plea, that before the defendants' entered the land and graded the road, they did not compensate the plaintiff for the privilege, nor agree with him concerning the grading, using, & c., of it, or as damages therefor, nor have condemnation by inquisition, then or afterwards. 9th. That as to said 4th plea, the defendants did not grade and occupy said public road in pursuance and lawful exercise of the authority, rights and powers conferred by said Acts of Assembly. 10th. That as to said 4th plea, the defendants cut down trees and earth and removed the same, in and on the sides of the road, and did other acts unnecessary and improper to the grading of the road, and for other purposes than the grading of it.

The defendants rejoined as follows:

1st. They joined issue upon the plaintiff's 2nd, 3rd, 5th, 6th, 9th and 10th replications. 2nd. To the 4th replication they demurred, because that it alleges certain acts complained of to have been done by a continuando, whereas they did not lie in continuance. 3rd. To the allegations of the 7th replication, they said the plaintiff had no claim or right by law to be paid any compensation, or to any agreement therefor, or inquisition, because, as they aver, they have graded and occupied said public road in pursuance of powers and rights vested in them by the said Acts of Assembly, " and in so doing have not departed from the track of said public road, or changed the same through that portion of said public road that passes through, over and upon the lands of the plaintiff." 4th. As to 8th replication, the defendants before grading said road were not bound to compensate the plaintiff for the privilege, or to agree with him for damages, or have condemnation, because they had a right under said Acts of Assembly, so to grade and use it in the manner alleged by them in their 4th plea; and in so doing they did not depart from the track of said public road, or change it, through that portion of it that passed through, over and upon the lands of the plaintiff; and that in such case the plaintiff was not entitled to compensation, or any of the matters pretended or claimed by him in his 8th replication.

The plaintiff joined in the demurrer to the 4th replication, and demurred to the rejoinder to the 7th and 8th replication, assigning for causes, that the Act of 1852, ch. 266, was unconstitutional and void; that sufficient power to do the acts was not shown; that it was not alleged and shown that before grading, & c., compensation was given or agreed for, & c.; that no sufficient facts are stated in answer to these replications, but only matters of law, arguments and inferences; and that they have by said rejoinders departed from the defence set out in their previous pleading, particularly in their 4th plea.

The defendants joined in these demurrers.

The Court below (PERRY, J.,) overruled the demurrer to the plaintiff's 4th replication to the third plea of the defendants, and also overruled the plaintiff's demurrers to the defendants' rejoinders to the 7th and 8th replications.

1st Exception. --At the trial of the cause, the plaintiff to support the issues joined on his part, offered evidence of his title to a tract of land called " " Moreland," and that he had owned and been in possession of the same since the year 1849; that for many years there had been a public county road through said tract, of a mile in length, which for more than thirty years had been fenced on both sides, and that for the same period of time there had been gates in said fence by which he passed freely from the public road into private ways and lanes leading into the fields and woods, and to the barn of the plaintiff; but that the defendants in grading and ditching said road on both sides, had " by their servants and agents, cut large and deep trenches, and made high and abrupt embankments, so that the said gates and ways have been, since the grading of the said road, obstructed and rendered inaccessible--and almost impassable and useless to the plaintiff," --" and thereby turned the water off the said road into and on the fields of the plaintiff, and caused the said fields to be washed and overflowed and much injured."

The defendants then gave in evidence the said Acts of Assembly, and also the Acts of November session, 1790, ch. 32, and November 1791, ch. 82, and then proved by several witnesses that the road graded, & c., through the plaintiff's land was the old county road, that had been used by the public from the earliest recollection of the oldest witness, and that it was in no part changed, so far as it ran over and upon the lands of the plaintiff; and that the work was finished on the plaintiff's land in June 1854, and that no trees were cut in or along said road or the plaintiff's land after February 1854. All the acts done were proved to have been done in the grading of said road, and to have been necessary and proper for the purpose. A great deal of proof was taken also as to the condition of the plaintiff's fences, gates and ways and drainage, to show that he suffered no injury; that the water ran as formerly along and over his fields, & c.; and further that the plaintiff was frequently on the road whilst being graded, and never complained or objected to any thing that was done, except as to removing two trees, cut in 1853, and that he expressed his satisfaction to several witnesses after the road was made, both as to its excellence, and its location over the bed of the old road.

The plaintiff offered the following prayers:

1st. That the Act of 1852, ch. 266, is void and conferred no power.

2nd. That if the jury found that the road graded ran over and through plaintiff's land, and that the defendants did proceed under said Act of 1852 to grade the same, as said Act provides they might do, yet they could not do so until after an agreement with plaintiff for the right of way, or an inquisition for damages and payment thereof.

3rd. That if the defendants did so occupy and grade said road, and that part thereof ran over and upon the lands of the plaintiff, then the defendants in grading the same, could only use such earth and material as would have been necessary and proper for the repair and good order of the road, if it had remained public, under the supervision of the county authorities and not passed into the control of the defendants.

4th. That if the road so passed over the land of the plaintiff and the defendants used and occupied it under said Act of 1852, as they might; yet if the defendants cut down and removed earth and trees in and upon the sides of the road, and did other acts complained of, unnecessary and improper to...