Sapp v. Northern Cent. Ry. Co.

• Citation: 51 Md. 115
• Parties: CHARLES SAPP and ALICE SAPP, his Wife v. THE NORTHERN CENTRAL RAILWAY COMPANY.
• Decision Date: 25 March 1879
• Court: Court of Appeals of Maryland

51 Md. 115

CHARLES SAPP and ALICE SAPP, his Wife v. THE NORTHERN CENTRAL RAILWAY COMPANY.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiffs offered the following prayers:

1. If the jury find that the plaintiff, Alice Sapp, was the owner of the house and lot in question, and that the defendant broke into the same and tore down the front wall, and erected on her lot the fence mentioned in the evidence, then the plaintiffs are entitled to recover.

2. If the jury find from the evidence in the case that the plaintiff, Alice Sapp, and those under whom she claimed had for a period of twenty years prior to the time of the injury complained of, been in the quiet and peaceable possession of the land in question, and the defendant entered thereon and tore down her wall and erected the fence mentioned in the testimony, then the plaintiffs are entitled to recover.

3. If the jury find from the evidence that Alice Sapp was in peaceable possession of the house and lot mentioned in the evidence, including the stone wall in front thereof, and shall further find, that the defendant broke and entered said premises and tore down said wall and erected a high board fence upon the ground on which said wall had stood, then the plaintiffs are entitled to recover.

4. If the jury find the facts set forth in the first or second or third prayer, then the plaintiffs, in addition to actual damages, are entitled to recover exemplary damages, if they find that the said acts complained of were malicious and oppressive, and in determining whether said acts were malicious or oppressive they must take into consideration all the circumstances which accompany and give character to the trespass.

5. If the jury find from the evidence, that Mrs. Sapp, and those under whom she claims title to the lot on which she now resides, were accustomed for a period of more than twenty years prior to the institution of this suit, and the erection of the board fence mentioned in the evidence, to pass and repass on foot from the premises in question, over the land of the defendant to a public highway, for the more convenient use and occupation of said premises, and that such user during all that period was open, notorious, adverse and uninterrupted and under a claim of right on the part of such owners and occupants; and shall further find that the defendant obstructed and prevented such ingress and egress to and from said premises, by the erection of the fence mentioned in the evidence, then the plaintiffs are entitled to recover under the second count in the declaration, such damages as the jury under all the circumstances, taking into view the motives of the parties as disclosed in the evidence may think proper to allow.

The defendant offered the following prayers:

1. That by the true construction of the deeds offered in evidence by the plaintiffs as their paper title, the lot of the plaintiff extends 150 feet from the 25 foot road, mentioned in said deeds, and said road is by said deeds fixed to be distant 150 feet from the Northern Central Railway, and if the jury shall find that the fence erected by the defendant is 156 feet easterly from the east line of said 25 feet road, then the said fence is not on the ground conveyed to the plaintiff and the plaintiff cannot recover in this action for the erection of said fence, although the jury may find that more than twenty years before its erection, those under whom the plaintiff claims had erected a wall four feet high in front of the plaintiff's lot, and on the present line of said fence, and had maintained it up to the time when said fence was erected.

2. If the jury shall find that the fence erected by the defendant along the west side of its tracks, and shown on the plat offered in evidence by the defendant, is 156 feet easterly from the east side of the 25 feet road mentioned in the deeds, offered in evidence by the plaintiffs, and that prior to the erection of said fence by defendant, those under whom the plaintiffs claim had erected a fence along that side of the lot, (described in said deeds,) which binds on the railroad, and parallel or nearly so with the railroad together with two side fences running perpendicular thereto and so enclosing the yard in front of the house, and outside of said fence so erected, had also erected a stone wall four feet high, parallel with said railroad, and shall further find, that the fence erected by the defendant, was erected on the line of said wall and outside of said fences so erected by the plaintiffs, or those under whom they claim, then the plaintiffs cannot recover in this action under the first count in the declaration, for the erection of said fence by the defendant, although the jury may find that said wall was erected more than twenty years ago.

The Court, (DOBBIN, J.,) granted the second and third prayers of the plaintiffs, and rejected their first, fourth and fifth prayers, and rejected the defendant's prayers.

The plaintiffs excepted. The verdict was for the plaintiffs for $125 damages, and judgment was entered accordingly. The plaintiffs appealed.

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

William A. Hammond and F. C. Slingluff, for the appellants.

The jury would have been authorized, from the circumstances of this case to find that the acts complained of were malicious and oppressive, and thus within the well-recognized principle, authorizing exemplary damages. Sedgwick on Damages, mar. 466, n; Boone's Case, 45 Md., 344; Moore vs. Schulz, 31 Md., 418; The Barton Coal Co. vs. Cox, 39 Md., 1; Bannen vs. B. & O. R. R., 24 Md., 108; Snively & Keyes vs. Fahnestock, 18 Md., 391; Ridgely vs. Bond and Wife, 17 Md., 14.

The plaintiffs' fifth prayer, which was rejected, contained all the elements necessary to give a right of way by prescription, to wit: twenty years of open, notorious, adverse and uninterrupted user, under a claim of right. Washburn on Easements, 178, 229; Day vs. Allender, 22 Md., 511; 4 Gray, 547; 10 Penn. St., 126; 2 Whart., 431; Tyler vs. Wilkinson, 4 Mason, 404.

The enclosure of a portion of a highway by a fence, continued for twenty years, gives ownership. Knight vs. Heaton, 22 Vermont, 480; Cutter vs. Cambridge, 6 Allen, 20.

There is nothing inherent in the nature of a railroad giving it immunity from the operation of prescriptive rights, nor is there anything in the charter of the defendant authorizing such an assumption.

A right of way would not be inconsistent with its use as a railway, and a grant of such right of way would, therefore be perfectly valid. Petticord's Appeal, 34 Md., 463.

In a somewhat similar case, where a way across a bridge, erected by a canal company was claimed by prescription, TINDEL, C.J., said he "saw no reason why the public might not by user gain a right of way against them, (the canal company,) as well as against any other individuals." Grand Surry Canal Co. vs. Hall, 1 Man. & G., 392, (39 E. C. L.) Vide also, The Episcopal Church vs. Newbern Academy, 2 Hawks., (N. C.,) 233; Johnson vs. Ireland, 4 East, 279.

Bernard Carter, for the appellee.

There are certain principles of the law relating to obtaining a right of way by prescription, over another's land, which show that a right of way, such as is claimed by appellants over the roadway of the appellee, cannot be acquired by prescription.

A. A prescription, to be good, must be reasonable.

As title by prescription is founded on a presumption of a grant, the possession must be such as to render such a presumption reasonable. Washburn on Eas., 128; Thomas vs. Marshfield, 13 Pickering, 248.

The right to use the tracks of a railway, such as that of appellee, as a footway or wagon-way, (not for purposes of crossing, but lengthwise,) adversely to the railway company, would be so destructive of its proper management and operation as to be a most unreasonable privilege to have been granted; and, therefore, according to the foregoing authorities, cannot be prescribed for.

B. As title by prescription is founded on the presumption of a grant, it follows that in order to establish a prescriptive right it must be claimed under and through some one who had the right to create or grant the estate claimed. Washburn on Eas., 120, sec. 14.

No right exists in the appellee to make such a grant. It would be ultra vires. Stafford vs. Birmingham C. Co., 1 Eng. and Irish Appeal Cases, (Law Reports,) 254; Rockdale Canal vs. Radcliff, 18 Ad. & Ell., (83 Eng. Com. Law,) 287; 15 Md., 240; 104 Mass., 1; Washburn on Easements, 160; 2 Wash. on Real Pr., 323-324-325; 3 Wash. on Real Pr., 135.

C. The use from which a presumption of a grant is to be implied, must be exclusive and adverse; otherwise it will be regarded as permissive, or under an implied license, and so terminable at the will of the owner of the land. And thus where ground is left open for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is to be regarded, not as adverse, but permissive, and under an implied license. Kilburn vs. Adams, 7 Metcalf, 33; Washburn on Eas., 145; 18 Conn., 321; Harper vs. Parish, (Advent,) 7 Allen, 478; Gittings vs. Moale, 21 Md., 48.

So no one by pasturing cattle on a highway can acquire a right by prescription to do so. Washburn on Eas., 135.

All that the appellants proved as to the nature of the user by them, and those under whom they claim, of the railroad of the appellee is, that it had been for twenty-five years "continuous and uninterrupted, and had never been interfered with by any one connected with the railroad until...