Miller v. Miller
| Decision Date | 09 March 1875 |
| Citation | 41 Md. 623 |
| Parties | ISAAC MILLER v. JACOB MILLER. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Frederick County.
This was an action brought against the appellant on the 3rd of April, 1869, by the appellee for trespass in breaking and entering his close, being part of a tract called "Last of March," and cutting down and carrying away hickory and oak trees. The locus in quo, which was unenclosed woodland, was described in the narr. by metes and bounds, and testimony was offered tending to show that said description was correct. The narr. was filed on the 17th of September, 1869, and the trespass was alleged to have been committed on the 15th of September 1868, and divers other times between that day and the commencement of the suit. The defendant took eight exceptions. The first seven are sufficiently set forth in the opinion of the Court. The eighth is as follows:
Eighth Exception:--The plaintiff offered the following prayers:
1. That if the jury shall find from the evidence that the plaintiff had the title of the close in the declaration mentioned, and that the defendant entered said close and cut down or carried away any trees of hickory or oak growing thereon, or which were lying upon said ground, then their verdict must be for the plaintiff, and that there is no evidence from which the jury can find that the defendant exercised such acts of exclusive user and ownership, as to establish an adverse possession in law necessary to constitute an ouster or disseisin of the plaintiff.
2. That there has been no evidence offered in the cause from which the jury can find that the close in the declaration mentioned was at any time in the actual possession of the defendant, in such manner and by such acts of exclusive user and ownership as to establish an adverse possession in law necessary to constitute an ouster or disseisin of the plaintiff.
3. That if the jury shall find from all the evidence that the title to the close in the declaration mentioned was in the plaintiff at the time of the commission of the alleged trespasses, and at the time of the suing out of the original writ in this cause, and that the defendant, without permission, entered said close and cut down any hickory or oak trees growing thereon, or carried away any such wood so cut or lying upon said close, that then their verdict must be for the plaintiff, unless the jury shall further find that the defendant was in the actual possession, custody and occupation of said close from the 15th day of September 1868, until the 17th day of September, 1869, and shall further find that said actual possession, custody and occupation was adverse to the title of the plaintiff, and was an open, notorious and exclusive actual possession, custody and occupation.
4. That if the jury shall find the facts stated in the foregoing prayer, they can only find the actual possession, occupation and custody, as in the foregoing prayer mentioned, upon the affirmative showing of the defendant.
And the defendant prayed the Court to instruct the jury that from the pleadings and evidence in the cause, the plaintiff was not entitled to recover,
1st. Because the property described in the evidence in this cause, upon which the alleged trespass is supposed to have been committed, is not the same property set out in the declaration in this case.
2nd. Because the description of the land contained in the plaintiff's declaration, and upon which the trespass complained of is alleged to have been committed, is other and different from the description of the land described in the evidence in the case.
3rd. Because the close in the plaintiff's declaration, being particularly described by courses and distances, it is necessary to prove them as laid.
4th. Because there is no evidence from which the jury can find that the trespass complained of was committed by the defendant upon that part of the tract of land called "Last of March," contained within the courses and distances specially laid in the declaration.
5th. Because the plaintiff has not proved to the jury the lines and actual location of the parcel of land wherein the trespass complained of was committed, as described in the plaintiff's declaration.
6. The defendant also prayed the Court to instruct the jury, that unless they find from the evidence and the pleadings in this cause, that the property described in the evidence upon which the alleged trespass is supposed to have been committed, is the same property set out and described in the declaration in this case, their verdict must be for the defendant.
[No prayer numbered 7 appeared in the record.--REP.]
8. That unless the jury find from all the evidence in the case, that the trespass complained of was committed by the defendant upon a part of a tract of land called "Last of March," and contained within the courses and distances specially laid in the declaration, their verdict must be for the defendant.
9. That if the jury shall find the facts set forth in the foregoing prayer, that then the verdict must be for the defendant, although they should otherwise find from the evidence that the plaintiff is entitled to recover.
10. That unless the jury find from the evidence in the cause, that the plaintiff has proved title to the land upon which said trespass is alleged to have been committed, and that said land is a part of a tract of land called ""Last of March," then their verdict must be for the defendant.
11. That unless the jury believe from all the evidence in the cause, that the description of the land to be found in the evidence in the cause, upon which said trespass is alleged to have been committed, agrees with the description of said land as set out in the declaration, then the verdict must be for the defendant.
12. That unless the jury shall find from all the evidence, that the actual location and lines of the parcel of land whereon the trespass complained of is alleged to have been committed, are proved as the same are laid in the plaintiff's declaration, their verdict must be for the defendant.
The Court (BOUIC, J.,) granted the first, third and fourth prayers of the plaintiff and the sixth, eighth, ninth and eleventh of the defendant, but rejected the plaintiff's second prayer and the first, second, third, fourth, fifth, tenth and twelfth prayers of the defendant. To the granting of the plaintiff's first, third and fourth prayers, and to the rejection of the defendant's first, second, third, fourth, fifth, tenth and twelfth prayers the defendant excepted. The verdict and judgment were in favor of the plaintiff for $36. The defendant appealed.
The cause was submitted on briefs to BARTOL, C.J., STEWART, BRENT, GRASON and MILLER, J.
William B. Nelson and Frederick J. Nelson, for the appellant.
William P. Maulsby, Jr., for the appellee.
To the declaration in this case four pleas were filed; to the...
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