Horning v. Hardy

• Decision Date: 10 June 1977
• Docket Number: No. 818,818
• Citation: 373 A.2d 1273,36 Md.App. 419
• Parties: Joseph P. HORNING, Jr. and Lawrence E. Horning t/a Horning Brothers v. Albert R. HARDY et al.
• Court: Court of Special Appeals of Maryland

Page 419

36 Md.App. 419

373 A.2d 1273

Joseph P. HORNING, Jr. and Lawrence E. Horning t/a Horning Brothers v. Albert R. HARDY et al.

No. 818.

Court of Special Appeals of Maryland.

June 10, 1977.

Bernard F. Goldberg, Elliott City, with whom was Howard Silverstein, Elliott City, on the brief, for appellants-cross-appellees.

E. Alexander Adams, Elliott City, with whom were Cornelius F. Sybert, Jr., Elliott City, and Sybert, Sybert & Nippard, Elliott City, on the brief, for cross-appellants-appellees.

Robert E. Wieder, Elliott City, for appellee Martins.

Argued before MORTON, DAVIDSON and LISS, JJ.

LISS, Judge.

To unravel its complexities, this case on its face would seem to require the services of a 'Philadelphia lawyer,' ¹ but when the parties and issues of the several appeals have been sorted out, we find there are but two basic issues to be decided.

The first issue concerns the ownership of a parcel of land consisting of all or part of five lots shown on a plat of a subdivision known as Timberleigh Village in Howard County. The original suit in this case, filed by Albert C. Hardy ² (appellee and cross-appellant herein), consisted of a two count declaration alleging that William B. Martin and his wife, Phyllis (cross-appellees herein), and Joseph P. Horning, Jr. and Lawrence E. Horning, partners, trading as Horning Brothers (appellants and cross-appellees herein), had committed trespass quare clausum fregit on land owned by the Hardys and sought damages from the Hornings and their ejectment from the property allegedly owned by the Hardys.

The cross-appellees, Hornings, filed a cross claim against the Martins, from whom they had purchased the lots in question, seeking damages based on the special warranty recited in their deed. In addition, they filed an amended counter-claim against the Hardys in which they sought compensatory and punitive damages for malicious interference with the contracts between the Hornings and various purchasers of homes erected by the Hornings on the disputed lots, as well as damages for slander of title.

After a number of preliminary rulings which are not here in dispute, the case came on for trial in the Circuit Court for Howard County before Judge James Macgill sitting without a jury.

In the trial below, the Hardys claimed ownership of the disputed land by virtue of their title deeds and by reason of adverse possession for the required 20 years period. In their appeal briefs and in argument they sought to have this Court accept-if necessary to their cause-the additional alternative that their title was established by a doctrine novel to Maryland law known as the doctrine of boundary by acquiescence. Counsel for the Hardys have submitted a thorough discussion of the law governing this doctrine in other jurisdictions, but we shall not consider this ground in this appeal. Whether the doctrine of boundary by acquiescence should or should not be adopted in Maryland will have to await a case in which the issue is raised and decided in the trial court. In this case, the appellees/cross-appellants failed to present and preserve this issue in the court below, and it will not be decided for the first time on appeal. Rule 1085.

Judge Macgill, who presided at the five day trial in this matter, personally viewed the property in question, walked the boundary lines as surveyed, and prepared a detailed opinion showing the title history of the general area and specifically the area in dispute. We must commend the trial court for a remarkably thorough and expert analysis of the ownership of the lots claimed by the contesting parties in this suit. We are mindful of the strictures of Rule 1086 which require us to review a non-jury case on the law and the evidence but preclude our setting aside the judgment of the lower court on the evidence unless that judgment in clearly erroneous. We do not find such error in the court's conclusion as to the ownership of the lots in question and shall adopt the trial court's excellent opinion as to that issue, adding such additional authorities as we deem appropriate:

'The Hardys claim ownership of the land in dispute by virtue of their title deeds and also by virtue of adverse possession for the statutory period. It appears to be agreed that whether or not the disputed area lies within the area covered by their title deeds depends upon the correct location of the seventh line of a tract of land called 'Peace.' (There is a certain irony in the name under the present circumstances). This tract evidently is an early grant, dating from the eighteenth century. It was not offered in evidence. The writer, in attempting to arrive at a conclusion as to where the title lines of the respective parties lie, has prepared a plat which shows the locations, or approximate locations of the various deed lines as it has plotted them. A copy of this plat is attached to this opinion and should be considered a part of it.'

Judge Macgill thereupon proceeded to an exhaustive and comprehensive fact finding discussion of the metes and bounds of the property involved in the dispute. It would serve no useful purpose to repeat that discussion in this opinion.

The trial court then gave its reasons for its conclusion that the appellees had not met their burden of proof:

'This Court finds that the plaintiffs have not established, by a preponderance of the evidence, that the disputed area lies within the lines of their title deeds. It believes, on the contrary, that the area in dispute lies on the easterly side of the seventh line of 'Peace' and is within the title lines of the defendants. This conclusion is not arrived at with a conviction of certainty, there is much that does not appear to be reconcilable in the various deed descriptions but in actions of both trespass and ejectment, the plaintiffs must recover on the strength of their own title and not by the weakness of the title of the defendants. Feritta (Fertitta) v. Bay Shore Development Corporation, 252 Md. 393, (250 A.2d 69 (1969)); Janoske v. Friend, 261 Md. 358, (275 A.2d 474 (1970)); Giles v. diRobbio, 186 Md. 258, (46 A.2d 611 (1946)); Stottlemyer v. Kline, 255 Md. 635, (259 A.2d 52 (1969)).

'As to the plaintiffs' claim of title by adverse possession to the wooded area in question, there was testimony that they had cut firewood and timber and dumped stones easterly of the boundary line claimed by the defendant for a period in excess of twenty years. There was also testimony as to the location of old barbed wire fences but the significance of these locations is, at best, ambiguous. Cf. Stinchcomb v. Realty Mortgage Co., 171 Md. 317, (188 A.2d 790 (1937)). It has been said that in order to establish adverse possession of unenclosed timberland, evidence of the cutting and hauling of timber therefrom is not of itself sufficient, because such acts might be nothing more than successive trespasses. Malone v. Long, 128 Md. 377, (97 A. 643 (1916); Schlueter v. Ackerman, 215 Md. 173, 137 A.2d 179 (1957)). The same is true as to evidence of digging and selling sand. Parker v. Wallis, 60 Md. 15 ((1883)). It was there said that 'To work an ouster, the acts must be such as indicate to the world a claim of right to the land-acts of exclusive and continuous possession open and notorious . . .' (Id. at 19). In Goen v. Sansbury, 219 Md. 289 (297, 149 A.2d 17, 22 (1959)); the law was quoted that 'the holder of the older and better title has constructive possession of all of his land; and the holder of the junior and inferior title that overlaps it must, if he is to acquire good title, enter upon and actually hold adversely and continuously for the requisite period the actual boundary claimed by the older and better title . . ..' '(O)ne who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy.' (Id. at 294, 149 A.2d at 20). (underscording supplied). Furthermore, a mere statement of ownership, absent actual physical possession, is inadequate to constitute adverse possession. White v. Hardisty, 220 Md. 152, (151 A.2d 764 (1959)).

'This Court having found that the plaintiffs are not entitled to prevail in their actions, it follows that the cross-claimants, Joseph P. Horning, Jr. and Lawrence E. Horning are not entitled to prevail against the defendants, William B. Martin and Phyllis B. Martin.'

The second issue to be determined in this appeal is whether the trial court erred in entering its judgment in favor of the appellees (Hardys) on the amended counter claim of the appellants (Hornings). We find no error and shall affirm.

The Hornings' amended counter claim contended that they were entitled to damages from the Hardys because of an alleged slander of the Hornings' title to the land in dispute and because of an alleged malicious interference with contracts between the Hornings and purchasers of buildings constructed by the former on that land. The parties and the trial court treated the two claims as one-at the trial, in the briefs, and on argument-because legally and factually the absence of malice, if established, would be dispositive of both claims. In this Court the parties have primarily concerned themselves with the issue of slander of title.

As previously indicated in this opinion, the Hardings purchased the property here involved from the Martins in August of 1973. Later that month Albert R. Hardy, one of the appellees, communicated with an agent of the Hornings and advised him that the Hardys claimed ownership to a portion of the land purchased from the Martins. The Hornings immediately employed a surveying firm which after studying the property boundaries reported that the disputed land was owned by the Martins at the time of conveyance to the Hornings. In September, 1973 counsel for the Hardys notified the Martins and Hornings that 'further development of the disputed parcel of land will be done at your own risk.' From...