Honga River Gun Club, Inc. v. Montchester Gun Club, Inc.

• Decision Date: 08 March 1974
• Docket Number: No. 163,163
• Parties: HONGA RIVER GUN CLUB, INCORPORATED v. MONTCHESTER GUN CLUB, INC.
• Court: Court of Special Appeals of Maryland

Page 335

20 Md.App. 335

315 A.2d 810

HONGA RIVER GUN CLUB, INCORPORATED v. MONTCHESTER GUN CLUB, INC.

No. 163.

Court of Special Appeals of Maryland.

March 8, 1974.

Paul M. Anderton, Annapolis, for appellant.

Henry J. Noyes, Rockville, for appellee.

Argued before MOYLAN, POWERS and MOORE, JJ.

POWERS, Judge.

As noted by Judge Digges for the Court of Appeals in Montchester Gun Club, Inc. v. Honga River Gun Club, Inc., 257 Md. 79, 262 A.2d 312 (1970), this case involves a long standing boundary dispute between two Eastern Shore gun clubs which own large tracts of adjoining marshland, presumably lush with wild geese and other live targets.

The question presented to the Court of Appeals in Montchester v. Honga River, supra, was not determinative of the ultimate dispute. Honga had invoked an ancient and seldom used law, Code Art. 15, ¹ by applying to the Circuit Court for Dorchester County to appoint a commission to fix its boundaries. The case was docketed as Civil Law No. 2280, and over objection by Montchester, the court appointed a commission, which proceeded to file a return awarding the disputed area to Honga. Montchester questioned the return by filing a separate suit at law in trespass and ejectment against Honga, Civil Law No. 2675, and by moving to strike the return. The trial judge declined to consider the question of striking the return, on the ground that the only proper challenge to such a return was by a separate suit or action.

Holding that the return was subject to attack for misconduct of the commissioners the Court of Appeals reversed the orders of the lower court in No. 2280, and remanded the case for further proceedings. It said, at 86-87, 262 A.2d at 315:

'Deciding then that in a limited manner this case is properly before us on appeal and that the action of the trial judge in granting the motion ne recipiatur should be reversed, we deem it appropriate as authorized by Rule 885 to express our opinion on some of the problems which will confront the trial court either on remand of this case or the trial of the trespass-ejectment case. We are inclined to do so in an effort to clarify obscurities of ancient legal practices.

If the motion to strike the Commissioners' return is pursued, and the court finds 'misconduct of the commissioners,' the return should not be received. This determination would be res judicata as to the inadmissibility of that particular return in any later boundary action between the parties; however either party is free to seek appointment of a new commission in an effort to produce a return that will withstand procedural attack. If the motion to strike is denied, the return will be admissible in a subsequent suit but the substantive conclusions of the Commissioners would still be open to challenge if the suit were brought within five years of the recording of the return.

Because the return has significance almost entirely as evidence in later proceedings, the better practice would seem to be to resolve all questions concerning its validity in those proceedings. In the absence of any final determination under Section 14, the same grounds of attack could be posed at the trial. This would be done by objection to the offering of the return in evidence. If it were necessary to take testimony to determine the validity of such an objection, this could be done out of the presence of the jury, at the discretion of the trial judge. Obviously if objection to the return is sustained, the party offering it would be required to prove his case by other inpendent evidence. Weems' Lessee v. Disney, 4 Har. & McH. 156 (1798); Ruff's Lessee v. Webster, 4 Har. & McH. 499 (1767); Green v. M'Clellan, 4 Har. & J. 200. On the other hand if the commission was conducted regularly and in compliance with Article 15, the return as well as any other proper accompanying documents should be received in evidence 'to go to the jury to have what weight the jury might think it deserved', Lowes v. Holbrook, 1 Har. & J. 153 (1801). In reaching its conclusion the jury should consider this and all other relevant evidence. At an appropriate time there should be an instruction that since five years have not elapsed without the return being questioned by the institution of a suit or action under Article 15, it is not conclusive.'

The appeal now before us is from the judgment of the Circuit Court for Dorchester County in No. 2765, the law case initiated by Montchester's declaration in two counts against Honga, alleging its ownership and possession of certain land, described in the declaration, and that Honga trespassed upon it and ejected Montchester from it. Montchester also prayed for an injunction. Honga pleaded the general issue to each count of the declaration, denied Montchester's ownership of the land it claimed to own, and denied that it had trespassed upon or wrongfully ejected Montchester from any lands owned or possessed by Montchester.

Honga filed a counterclaim against Montchester in two counts paralleling Montchester's declaration, alleging trespass and ejectment, describing the lands owned by it by reference to the return filed by the Commissioners in No. 2280. Montchester pleaded the general issue to each count of Honga's counterclaim. The parties thus chose the traditional course to isolate for resolution by a jury the single issue between them: the true location of their common boundary line. Poe, Pleading and Practice, Tiffany's Edition, Vol. 2, Discusses ejectment in § 469, where he says:

'The action of ejectment may be of two kinds: It may involve simply the question of title to a piece of land, in regard to the location and boundaries of which there is no dispute, or the contention may be whether the land in controversy, truly surveyed and located, is within the lines of the plaintiff's or defendant's title papers. In the one case it is called ejectment upon title; in the other, ejectment upon location. * * * Where, on the other hand, a testator devises Blackacre to his son B, and Whiteacre to his son C, the two tracts being contiguous, and a controversy arises between the two devisees as to the boundaries of their respective tracts, and ejectment is brought by B to recover from C a strip of land claimed by B to be within the lines of Blackacre, truly located, but actually in possession of C-here, manifestly, the litigation can only be settled by means of a survey running the lines of the two tracts, and locating the conflicting pretensions of the parties upon plats. This, therefore, is an example of ejectment upon location.'

When a plaintiff is able to allege and prove actual possession he may choose, alternatively or additionally, the action of trespass to try his title. Poe, Pleading and Practice, Tiffany's Edition, Vol. 1, says of trespass in § 244:

'The action is frequently resorted to for the purpose of trying a disputed question of title to land, as in the case of Ridgely v. Bond, in which it is declared, upon the authority of Norwood v. Shipley, that to maintain it, the plaintiff must either show title to the land on which the trespass was committed, or that he was in actual possession thereof at the time of the trespass. * * * Indeed, the action is an obviously proper one to determine the divisional lines of adjacent land owners, where each of the parties claims title and possession of the land in dispute.'

Maryland Rule T42 b. restates the rule that a plea of not guilty in ejectment confesses the possession and the ejectment, and puts in issue only the title and right to possession of the land, and the amount of damages.

In June of 1969 Montchester filed a motion for a separate trial, under Maryland Rule 502, of the issue of law as to the admissibility in evidence of the Return of Land Commissioners filed in No. 2280. The separate trial was held, and the court ruled that the Return, with proper accompanying documents, be received in evidence at the trial of the case.

Trial was held before a jury in the Circuit Court for Dorchester County beginning 11 December 1972. On 13 December the jury returned a verdict in favor of Montchester, and assessed damages at one cent. After denying a motion for a new trial the court, on 17 January 1973, entered final judgment on the verdict, and entered an order permanently enjoining Honga and others from entering upon the lands of Montchester.

Honga filed a timely order for appeal from the judgment. Here it contends that the court erred in denying its 'additional motion', its motion for a directed verdict, and its motion for a new trial. It also asserts that the court erred in permitting Montchester to offer evidence tending to impeach the credibility of a witness who had been called by each side.

The only evidence material to the issue being tried in the case was evidence tending to show the location of the line dividing the property of the parties. Montchester offered in evidence a certified copy of a deed recorded among the land records of Dorchester County in 1947, between Honga River Gun Club, Incorporated and Robert L. Simmons and wife. Simmons was a predecessor of Montchester's grantor. The deed was admitted, without objection. We quote a portion of it:

'WITNESSETH, that Whereas, the said Robert L. Simmons and the said, the Honga River Gun Club, Incorporated own certain lands in Lakes or the 5th Election District of Dorchester County, State of Maryland, and they wish to establish and fix a line of division between their adjoining lands, for which purpose these presents are executed. NOW, THEREFORE, THIS DEED WITNESSETH, that the said Robert L. Simmons, on the one part and the said, the Honga River Gun Club, Incorporated on the other part, do hereby fix and establish as the line of division between their said adjoining lands, the following line, to wit: The first line in the patent for 'Kirwan's Adventure', recorded in Patent Record C. G. No. 6, folio 173 of the Patent Records in the Office of the Land Commissioner at...