Ridgely v. Bond

• Decision Date: 28 February 1861
• Citation: 17 Md. 14
• Parties: JOHN RIDGELY, of John, v. JOSHUA B. BOND and Wife.
• Court: Maryland Court of Appeals

17 Md. 14

JOHN RIDGELY, of John, v. JOSHUA B. BOND and Wife.

Court of Appeals of Maryland.

February 28, 1861

It is the duty of this court to regard the ruling of the court below, in granting a prayer, by referring to the testimony contained in it: if there are other facts disclosed in the record, of which the party might have availed himself at the trial, but did not incorporate them in his prayer, it is too late to avail himself of them in this court.

To maintain an action of trespass quare clausum fregit, 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.

A prayer, that if the jury believe the plaintiff's ancestor was, in his life time, and for many years, in peaceable possession of the land, claiming title thereto makes out a case of a possessory title only, and as these many years might have been for any indefinite number less than twenty, the period when an adverse possessory title only becomes mature, the prayer is erroneous.

The Act of 1852, ch. 177, so far as it applies to cases of trespass q. c. f., in this regard, does not alter the law in any other respect than to enlarge the evidence to prove adversary possession; it does not diminish the time in which to establish a possessory title.

A prayer calculated to mislead the jury as to what is a possessory title, is erroneous.

The question of damages in an action of trespass q. c f., is for the jury: they may combine in their verdict damages for the conduct of the defendant for entering the premises, knowing they were not his, and for his subsequent acts after such entry.

APPEAL from the Circuit court for Howard county.

Trespass quare clausum fregit, brought on the 27th of January 1857, by the appellees against the appellant, for breaking and entering a close called " The Eleven Acre Lot," being part of a tract called " Hobb's Rest. " Pleas which were treated as a plea of non cul., were filed, upon which issues were joined.

Exception. The evidence offered in the cause on both sides, sufficiently appears in the arguments of counsel and the opinion of this court. Two prayers were offered on the part of plaintiffs, which are set out in full in the opinion of this court. These prayers the court (BREWER, J.) granted and the verdict and judgment being in favor of the plaintiffs, the defendant appealed.

The cause was argued before TUCK, BARTOL and GOLDSBOROUGH, J.

Thos. Donaldson, for the appellant, argued:

1st. That neither of the plaintiffs having ever been in possession of " " The Eleven Acre Lot," or of any part of it, and not even pretending to be so at the time of the alleged trespasses, they could only recover in this case by establishing title in themselves to the premises, and this they have utterly failed to do. It is on the strength of their own title that they must rely, not on the weakness of the defendant's. No patent from the State was offered in evidence by them; but by the law as it now stands, (Act of 1852, ch. 177,) a patent shall be presumed in favor of a party showing a title otherwise good. All that the plaintiffs show by the proof is, that Thomas Hobbs called himself the owner of the land for twelve years, from 1804 to 1816, and that in the latter year he caused it to be surveyed, and executed and recorded a conveyance of it to Dr. Howard, the father of Mrs. Bond. The land was lying out in commons, unenclosed from before 1804 till 1846, when the defendant enclosed and cultivated it. The survey of the land did not amount to a possession of it by Thos. Hobbs; and if it did, was only possession during survey; Dr. Howard, who lived but two years after 1816, never was in possession at all; nor was any one claiming under Dr. Howard ever in possession of it till Geo. W. Hobbs entered upon it in October 1856. If this be all that is necessary to show a good title now that a patent may be presumed, then indeed is the law revolutionised by the Act of 1852, and a most liberal construction would thus be given to it in face of the decision of this court in 10 Md. Rep., 146, Thistle vs. Frostburg Coal Co. But it is still indispensable that the plaintiff should exhibit a case negativing an outstanding title in every one, other than the State. There should have been in Thos. Hobbs a possession adverse, exclusive and continuous, for more than twenty years, in order to his acquiring a good title to be conveyed to Dr. Howard, unless he himself derived under persons who had acquired title. If the rule were otherwise, the defendant might be subject to a number of suits for the same trespass. Suppose John Smith claimed ownership of the lot from 1800 to 1815, and in 1815 he conveyed the same, by deed, to John Brown, after causing a survey to be made, and the heirs of John Brown were to sue the defendant for a trespass. Under the ruling in this case he would recover, and so might half a dozen others on no stronger proof of title. And suppose John Doe were to sue and produce the patent, and trace a clear paper title to himself, is it not certain that he must recover too? If causing a survey by Thos. Hobbs was, in law, a possession on his part, (which is denied,) it was but for a day; and even if it had continued during the whole twelve years of his claim of ownership, it was not enough to give him a title, and having no title he could give none to Dr. Howard. Thus it is clear the plaintiffs have shown no good title in themselves, and not having had possession, they could not recover, and their first prayer was improperly granted. 1 H. & J., 295, Norwood vs. Shipley. 2 H. & McH., 57, Helms vs. Howard. 9 Gill, 273, Cresap vs. Hutson. 1 Md. Rep., 52, Mitchell vs. Mitchell. 10 Md. Rep., 129, Thistle vs. Frostburg Coal Co. 4 Md. Rep., 173, Hammond vs. Inloes. 5 Md. Rep., 237, Hoye vs. Swan. Ibid, 256, 274, Armstrong vs Risteau. Adams on Eject., 281, 282.

2nd. The second prayer would seem to authorise the jury to give damages beyond the amount of injury and loss actually sustained by the plaintiffs, for the purpose of punishing the defendant, if he entered the close, " knowing it was not his." If such be its meaning, the court certainly erred in granting it. There was no evidence, whatever, showing such knowledge on his part; for the vague declaration of Perry G. Hobbs, a volunteer, that " there were eleven acres not connected with ‘ The Old Place,’ " cannot be taken into consideration. 11 Md. Rep., 400, Carroll vs. Granite Co. On the other hand, the testimony is clear, that the defendant was assured by the party from whom he purchased " The Old Place," that the piece of land on which the trespass is alleged to have been committed, was a part of that place; and after receiving that assurance, he enclosed and cultivated that piece. But even if he had known that he had no title to this piece of land, that fact alone could not authorise vindictive damages. The evidence shows, that for upwards of forty-two years, the land, though in the midst of a long settled country, had been lying out in commons, abandoned by its legal owners, if any existed. To inflict punishment on one, who enclosed and brought it into cultivation, besides requiring from him a surrender of all profits derived from it, and payment for every actual injury, and at the same time to give a premium to the negligence of the owners, would be a most extraordinary measure of justice, and in the face of all the authorities in regard to vindictive damages. 2 Greenlf's Ev., secs. 253, 272 and notes. Sedgwick on Damages, 39. 13 How., 371, Day vs. Woodworth. 21 How., 214, Phil. & Wil. & Balt. R. R. Co., vs. Quigley. This second prayer is also formally defective and uncertain in its meaning, especially in its mode of stating the rule of damages.

3rd. The first prayer is formally defective in several particulars, and so indefinite as to mislead the jury: 1st. The jury is not confined by its terms to the evidence in the case. 2nd. It states that, if the jury " find that Thomas Hobbs was in his lifetime, and for many years, in peaceable possession of the land," & c., under which the jury might suppose that possession for a less term than twenty years could confer a title. 3rd. It states, " that if they find that the defendant entered the close mentioned in the proceedings. 4th. It states, " " " " that the defendant cultivated said land, after the wood and timber were so cut as aforesaid, for and during time mentioned by the witnesses. " 5th. It directs that the verdict of the jury " ought to be for the plaintiffs, for such damages as they shall find they have sustained," without confining their right of recovery to the damages sustained from the acts of the defendant.

A. H. Hobbs, for the appellees:

1st. A " mere possessory title," or " temporary interest," is sufficient to sustain the action of trespass q. c. f., against a tort-feasor, setting up no title in himself, as is the case here. 5 Md. Rep., 550, Tyson vs. Shueey. 13 Md. Rep., 73, Wilson vs. Hinsley. 7 G. & J., 333, Dorsey vs. Eagle. 3 McCord, 422, Davis vs. Clancy. Dorsey on Eject., 33. The possession of part of the tract called " Hobbs Rest," with a claim of title to the whole, of which the locus in quo is a part, together with the " acts of user and ownership," performed in respect to the lot in question, the survey, marking of boundaries and establishing the lines thereof, were facts from which it was perfectly competent for the jury to find possession in Thos. Hobbs, Sen. These acts were public, notorious, and if done by any other person than the rightful owner, would have been a trespass, subjecting the intruder to suit and damages. Act of 1852, ch. 177, sec. 2. Assuming, then, the existence of the fact of possession in Thos....