Montchester Gun Club, Inc. v. Honga River Gun Club, Inc., 184

• Decision Date: 16 February 1970
• Docket Number: No. 184,184
• Citation: 262 A.2d 312,257 Md. 79
• Parties: MONTCHESTER GUN CLUB, INC. v. HONGA RIVER GUN CLUB, INC.
• Court: Maryland Court of Appeals

Page 79

257 Md. 79

262 A.2d 312

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

No. 184.

Court of Appeals of Maryland.

Feb. 16, 1970.

Henry J. Noyes, Rockville, for appellant.

W. Edgar Porter, Salisbury (George H. White, Salisbury, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

Having abjured trial by combat for trial by law, two Eastern Shore gun clubs have called upon the Maryland courts to settle a boundary dispute between them. So enamored are they of legal rather than ballistic processes they have resorted to an antique 1786 statute which is now seldom used and has not been considered by this Court for over one hundred and fifty years. Chapter 33 of the Acts of 1786, now codified as Article 15 of the Maryland Code (1957, 1968 Repl.Vol.) provides that the circuit court may appoint a commission to mark and bound lands, the boundaries of which have been lost or confused. ¹ The commission, which may be composed of three to five person skilled in land affairs, must give notice thirty days before they meet. They may order a survey taken and are empowered to take the depositions of witnesses who have knowledge of the boundaries. If a majority of the commissioners concur they are authorized to mark the lines of the lands and must return a plat and certificate of the boundaries to the court which issued the appointment. The court in turn, unless it otherwise orders on the ground of misconduct by the commissioners, must receive and enroll the return. If the return is unchallenged in a suit or action commenced within five years after it is received, it becomes conclusive evidence of the original location of the boundaries, although a later challenge is permissible for persons under disability. Each commissioner is entitled to the per diem expense of two dollars, although a surveyor is allowed compensation up to four dollars per day. Under Sections 16 and 17 of Article 15, which were repealed in 1965 (to eliminate any possible conflict with the Maryland Uniform Arbitration Act enacted in that year (Code (1957, 1968 Repl.Vol.) Art. 7), no commission could vary from lines settled, agreed or ascertained by the parties.

This procedure had its origin in Maryland with legislation enacted in 1699. Much of the early litigation in the colony involved boundary disputes and legislation of this type was an effort to encourage private settlement of these disputes. It was thought this end could best be accomplished by conducting hearings in the immediate area of the contested lands where knowledge of local residents would be available. The early legislative enactments expired by their own terms in a few years. The expiration date, however, was followed by re-enactment until Chapter 33 of the Acts of 1786. This later act was devoid of any expiration date and has remained unchanged to this date except for minor amendments made shortly after the original enactment and the repeal of Sections 16 and 17.

The parties here own large tracts of adjoining marshland, presumably lush with wild geese and other live targets, and their common boundary is now in dispute. The appellee, Honga River Gun Club, Inc., determined to assert its claimed holdings, filed on August 9, 1965, an application in the Circuit Court for Dorchester County for a commission to fix its boundaries.

Appellant, Montchester Gun Club, Inc., vehemently and immediately objected to the proceedings and filed a petition claiming that the statute was obsolete in and of itself, and that under Sections 16 and 17 of Article 15 (then in effect) its use was prohibited in this case in view of a 1947 deed which it claimed settled the dispute. Judge Mace sustained a demurrer to this petition and appointed a commission pursuant to Section 6 of the statute. The Commission, composed of three men, took testimony regarding the boundaries and consulted with a surveyor. Their return was handed to the Clerk of the Circuit Court for Dorchester County on November 29, 1966, awarding the disputed area to Honga. Again Montchester protested and sought to call the Commission's findings into question in two ways. First, on April 23, 1968, it instituted a separate suit in trespass and ejectment against Honga, and, second, on April 10, 1969, it filed as a part of the Land Commission proceedings a motion to strike the return of the Commission.

The motion to strike alleged fraud and irregularity by the Commissioners for representing that a survey had been made when in fact none had, but Judge Mace refused to consider the question; instead, he granted Honga's motion ne recipiatur, in effect striking the motion to strike. ² This was done on the grounds that the only remedy provided by the statute for challenging the Commission's findings was to be found in Section 15, which provides:

'If no suit or action shall be brought within five years next after recording the return of the commissioners, to call in question their adjudication, the marking and bounding such land as aforesaid, and the record thereof shall be conclusive evidence of the original location thereof both as to the direction and termination of the lines; or if the adjudication of the commissioners shall be confirmed by the verdict of a jury in any such suit, the adjudication of the commissioners in the point confirmed by the jury, and between the same parties and those claiming under them, shall conclude to every intent and purpose; provided, that every infant married woman, insane person, or person in prison and beyond sea, and those claiming under either of them, shall have five years after the disability (is) removed to commence such suit or action.' (Emphasis added.)

Judge Mace ruled that under this section the Commissioner's return can be questioned on the basis of irregularity only in the independent trespass and ejectment case. He further concluded that an attack must be aimed at the findings of the return rather than its form if the attack is made in the same proceedings as those appointing the commission.

The subject of this appeal is the correctness of that ruling. We were informed in the oral argument that the trespass-ejectment action is being held in abeyance until we render a decision on how the return can be challenged.

Before discussing this ruling it will be necessary to dispose of appellee's motion to dismiss. By its motion it contends that this is an administrative proceeding with appeals governed by Subtitle B, Chapter 1100 of the Maryland Rules. It has further been suggested that the Article 15 proceeding might be a special statutory proceeding. Thus it is argued, under the decisions of this Court, no right of appeal exists under Code (1957, 1968 Repl.Vol.), Article 5, Section 1, and in the absence of a right granted by the statute creating the proceeding, no appeal lies. Simpler v. State for Use of Boyd, 223 Md. 456, 165 A.2d 464 (1960).

We determine this is clearly not the proceeding of an administrative agency and if it is anything other than a usual action at common law it is a special statutory proceeding. 11 C.J.S. Boundaries § 88g (1938).

At first blush Article 15 would seem to provide for a special statutory action. However, this may well be a regular exercise of the court's general jurisdiction in the ordinary course of the common law, from which an appeal would normally lie under Article 5, Section 1. Simpler supra; Poe, 2 Pleading and Practice, Section 826 (5th ed.). A review of the 18th and 19th century English cases involving the appointment of boundary commissions indicates that Article 15 and its predecessors, which go back as far as 1699, were but regularizations of a common law bill in equity. Daniell, 2 Pleading and Practice in the High Court of Chancery (6th American Ed. Perkins, Cooper, Gould 1894); Chapman v. Spencer, Y.B.Mich. 5 Geo. 2 (Ch. 1731), MS Rep., 2 Eq.Ca.Abr. 163, 22 Eng.Rep. 139; Speer v. Crawter, 2 Mer. 410, 417-18 (Ch. 1817), 35 Eng.Rep. 997, 999; Godfrey v. Litell, Taml. 221 (Rolls Ct.1829), 48 Eng.Rep. 88 and cases cited therein.

In the posture that the matter is before us it is unnecessary for us to answer this technical question. It is the law of this...