Jacobs v. Davis

• Decision Date: 24 February 1871
• Citation: 34 Md. 204
• Parties: CURTIS W. JACOBS v. PETER L. DAVIS.
• Court: Maryland Court of Appeals

34 Md. 204

CURTIS W. JACOBS v. PETER L. DAVIS.

Court of Appeals of Maryland

February 24, 1871

APPEAL from the Circuit Court for Worcester County.

The facts of the case are sufficiently stated in the opinion of the Court.

At the trial of the cause below, the defendant took four exceptions to the rulings of the Court in relation to the admissibility of testimony.

First Exception: The plaintiff having offered evidence of the damage done his lands by the water flowing down the ditches cut by the defendant, and having offered evidence as to the general tendency of the water in the swamp above his land, the defendant offered evidence of an agreement, under seal, made by the plaintiff and others appointing commissioners to lay off ditches and roads on their lands, together with the plats, showing the lands and the roads and ditches laid down by the commissioners, in order to show the general tendencies of the water from a certain part of the swamp, and proposed to follow it up by showing the approval of the action of the commissioners by the plaintiff. To this testimony the plaintiff's counsel objected, and the Court having sustained the objection, the defendant excepted.

Second Exception: Evidence having been offered by the plaintiff, showing that the line of the ditch along the High Bridge road spoken of in the agreement, ran through the land of George Lewis for some distance, the defendant offered to prove that George Lewis was still the owner of the land and that neither he nor Davis, nor Holloway, had ever granted the defendant the privilege of a water-course over the said lands of Lewis. The Court refused to admit the testimony, and the defendant excepted.

Third Exception: The plaintiff, as a cause of damage, having offered evidence tending to prove that certain fence-rails and shingles on his premises had been injured and rendered comparatively worthless, the defendant, to rebut this evidence and to prove that the rails and shingles had not been injured, proved by a witness, that he had carefully examined the rails and shingles, and did not think they were injured for use or market, except to the extent of natural decay; and further testified, that he had selected from the rails and shingles, one rail and several shingles, which were a fair sample of the said rails and shingles, and that he had the said rail and shingles ready to be produced when called for, to show the condition of the said rails and shingles; and thereupon the defendant offered the said rail and shingles in evidence; to the admissibility of which evidence, the plaintiff objected, and the Court sustained the objection; to this ruling of the Court, the defendant excepted.

Fourth Exception: The plaintiff having offered evidence tending to prove the location of the lands claimed by the plaintiff and the said Thomas Holloway, on the east side of the High Bridge Road and binding thereon, and the mode and manner in which the water-course had been opened and cut thereon by the defendant, the defendant offered evidence to prove that he had cut and opened the said water-course in a manner in accordance with the terms of his covenants in said paper-writing, and of sufficient width and depth for his purpose, and propounded the following question: "For what purpose are the lands to be drained by the ditches, as cut by Mr. Jacobs below Snow Bird Island, and adjoining the lands of the plaintiff, most valuable?"

To the admissibility of this evidence, as also to the propriety of the question, the plaintiff objected, and the Court sustained the objection. The defendant excepted.

As the prayers referred to in the opinion of the Court embody the principles of law decided, and are numerous and some of them quite long, they are omitted.

The verdict and judgment being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., BRENT, GRASON, MILLER and ROBINSON, J.

T. A. Spence and A. B. Hagner, for the appellant.

John H. Handy, for the appellee.

GRASON J., delivered the opinion of the Court.

This was an action of covenant instituted by the appellee against the appellant, and the agreement between the parties thereto was set out in the narr. A demurrer was filed to the narr. and three causes of demurrer were assigned in the argument; first, that the covenant was joint, second, that the breach was not sufficiently assigned in the second count, and third that the covenant not to allow the owner of Gum's land to drain that land through the ditches mentioned in the agreement, is against public policy. It appears on the record that the appellant had obtained, from the proper Court in the State of Delaware, a commission to open, what is termed a tax ditch to drain his lands, through the lands of the appellee and Thomas Holloway, and they, in consideration that the appellant would abandon his proposed tax ditch and not again apply for one, entered into an agreement with the appellant, under seal and dated the 17th day of September, 1864, by which they covenanted to grant to the appellant the privilege of a water course through their lands, to begin for the head of said water-course on the East side of the High Bridge road, where the appellant's and Davis' lands join, and to run by and with said road on the lands of the appellee and Holloway, until it reached the divisional line between the States of Delaware and Maryland. The appellee and Holloway further agreed to permit the appellant to cut and keep open forever, a ditch on the line aforesaid, of sufficient width and depth for his purposes, reserving to themselves the wood and timber removed in cutting the same. The appellant on his part covenanted to abandon all proceedings in the State of Delaware, to procure a water-course through the lands of the appellee and Holloway, or either of them and not to commence any other; that he would not allow Menaan Gum or any one, who might thereafter own the land of the said Gum, to cut ditches into his, the appellant's land, so as to drain through the ditches by the agreement granted. He also further agreed to cut the ditch first above named and granted, by beginning at the point where it intersects the divisional line between Delaware and Maryland, and not to cut it above, so as to throw the water down, until it could be taken off by the ditch below, and for the faithful performance of the agreement the three parties above named, bound themselves each to the other in the penal sum of $1,000.

The first question to be determined is, whether the covenant made with the appellee and Holloway is joint or several. We have carefully examined the authorities, cited in argument by the counsel of the respective parties, and they all recognize the rule as uniform and well established, that, where the interests of the covenantees are several the covenant is several. Wright vs. Post, 3 Conn., 145; Anderson vs. Martindale, 1 East., 501; 1 Chitt. Plead., 10; Eccleston vs. Clepsham, 1 Saund., 153, note 1, and Slater vs Magraw, 12 G & J. 270. In the note in 1 Saund., 153, it is said "though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several, and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his peculiar damage, notwithstanding the words of the covenant are joint." And in Platt on Covenants, 123, the doctrine is laid down "that covenants shall not be construed to be joint or several, from the particular language in which they may be conceived, but shall be measured and moulded according to the interests of the covenantees," and this rule is cited and recognized by the Court of Appeals in the case of Lahy & Counselman vs. Holland, 8 Gill, 451. In the case now before us, the appellee and Holloway respectively, owned the lands through which the ditch was to be cut, and which were to be affected by...