Stinchcomb v. Realty Mortg. Co., Inc.

• Decision Date: 13 January 1937
• Docket Number: 55.
• Citation: 188 A. 790,171 Md. 317
• Parties: STINCHCOMB v. REALTY MORTGAGE CO., INC. [a1]
• Court: Maryland Court of Appeals

188 A. 790

171 Md. 317

STINCHCOMB v. REALTY MORTGAGE CO., INC. ^[a1]

No. 55.

Court of Appeals of Maryland

January 13, 1937

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Suit by the Realty Mortgage Company, Incorporated, against Sarah Stinchcomb. From the decree rendered, defendant appeals.

Reversed and complaint dismissed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN and JOHNSON, JJ.

R Tilghman Brice, III, and Robert Moss, both of Annapolis, for appellant.

James F. Thrift and Guy B. Brown, both of Baltimore (McIntosh & Thrift, of Baltimore, on the brief), for appellee.

BOND Chief Judge.

This case is a sequel to that of Waring v. Stinchcomb, 141 Md. 569, 119 A. 336, 32 A.L.R. 453, and is brought by a subvendee of the parties on one side of that case against the survivor of parties on the other side. As was explained more fully in the earlier opinion, the original parties were owners of two farms fronting on Chesapeake Bay at the mouth of Magothy river, separated originally, and according to the descriptions in subsequent title deeds, by a waterway making in from the bay called Little Magothy river or creek; and they were in dispute as to the effect of the closing of the original outlet of the creek by sand that had been washed up from the bay in the course of time, and which had caused a new narrow outlet to form along to the northwest, in front of the Stinchcomb property on that side, and between it and the washed-up sand beach. The plat reproduced in the report of that first case, 141 Md. 569, 579, 119 A. 336, 32 A.L.R. 453 will clarify this.

The fundamental question in dispute in that former case was whether the creek's outlet continued to divide the two farms on their water fronts after it had left its original side and so turned across the Stinchcomb front, or whether, on the contrary, it had then ceased to be the boundary, and the sand washed up in front of the Stinchcomb land had become attached to that land by accretion, notwithstanding the interposition of the creek's more recent outlet between. The decision was that the washed-up sand had become part of the Stinchcomb property in front of which it lay, irrespective of the interposition of the present outlet. In this second proceeding the first question argued is one of jurisdiction in equity to grant the relief prayed, assuming the existence of facts to support it in the proper forum. And passing that, the questions are: Did the first case settle the dividing line at the fence marked on the plat, and the removal of which gave rise to that case; if not, is a present judicial recognition of ownership in Miss Stinchcomb of land to the southeast, precluded by judicial admission of the Stinchcombs in the former case, by estoppel, or by adverse possession of the beach front there claimed by Miss Stinchcomb; and if not, is the fence recently erected by her within or on her true boundary?

It appears that some years ago the two farms were owned by father and son, the son, Alfred A. Stinchcomb, Mrs. Waring's father, on the southeast, and William Stinchcomb, his father and Mrs. Waring's grandfather, on the northwest. During those years Alfred A. Stinchcomb, the son, built a fence across the beach as marked on the plat; and the evidence of both Mrs. Waring, his daughter, and of George Stinchcomb, his brother, is that the fence was not erected to mark a boundary line, but merely to keep Alfred Stinchcomb's cows from going over on the northwestern, or home, farm. It appears to have been worn down in time, and to have been replaced by Mrs. Waring after she had acquired the southeastern farm. It is to be taken, we conclude, as having been placed entirely without commitment on either side as to a division line.

Mrs. Waring, under the belief that the creek continued to divide the farms on the water front wherever its outlet might be found at any time, was in 1921 preparing to sell the beach built up in front of the northwestern farm, and with that in view removed the cow fence. And that action brought on the first suit by Miss Stinchcomb and her brother, then joint owners of the northwestern farm succeeding their father, to restrain interference with the fence. In their sworn bill of complaint they described it, and sought protection of it, as a division fence. This was explicitly alleged. And it was the first time, apparently, that the fence had been so described. It is clear, however, from the record of the first proceeding, introduced in evidence in this one, that the litigation did not proceed on an acceptance or denial of the fence as a dividing fence, but on the issue of the effect of the moving of the dividing line of record, the mouth of the creek. Witnesses on both sides testified that the fence was only a cow fence as stated; Miss Stinchcomb herself and witnesses called by her testified that 30 to 35 years before, the mouth of the creek had been about a hundred yards to the southeast of the fence, and had been shifted as far as the site of the fence 20 years before. The evidence convinced the chancellor then sitting that the mouth had been in recent times, within living memory, further to the southeast, on the Waring side, and, adopting a survey ordered to locate it, he decreed that the boundary was at the line shown on the plat. That line, as it there appears, included only the beach in front of fast land on the northwestern farm. Despite the apparent disregard and departure from the claim of the Stinchcombs in their bill that the fence was a division fence, no amendment was made of the bill.

The decision of this court on appeal was, as stated, that as the title of the Stinchcombs by accretion included the beach built up in front of their land, and the fence in dispute was at least no further to the southeast than that land and the old mouth of the creek, it should be preserved, either as a boundary fence or a fence on the Stinchcomb land where they had a right to maintain any fence without interference. This court noted the evidence that the old mouth was still further to the southeast, but found that on the bill and the evidence before him the chancellor could not settle the boundary, and that the settlement of it by the decree was erroneous. On the remanding of the cause the chancellor signed a decree declaring that the accretion in front of the Stinchcomb land between the old and the new mouths was the property of the Stinchcombs, and enjoining interference with the fence on it. That decree is to be read as adhering to the limits of the decree on appeal, and therefore not as exactly defining the boundary, but as repeating the reason for restraining interference with the fence on the site occupied by it.

The effect of the decision was not fully understood by Mrs. Waring and others, but one of her attorneys at the time advised her that she was free to sell the front up to the site of the fence, and accordingly conveyances were made and ultimately brought whatever title Mrs. Waring might have had, if any, to some part of the beach on the southeast side of the fence into the ownership of the present appellee, and complainant. There was still some uncertainty as to the title, however, and while the question was under consideration by this latest purchaser, the complainant, Miss Stinchcomb, surviving owner of the farm to the northwest, caused a fence to be erected on the line found by the chancellor in the first suit as that of the mouth of the creek and the division line. That fenced in the complainant's purchase as if part of the northwestern farm, and the complainant brings this second proceeding to remove a cloud on its title, or restrain a trespass upon its land. And on this second bill the present chancellor, after taking evidence, has concluded that the claim of Miss Stinchcomb to the line of her new fence cannot be sustained, principally because of the original claim in the bill of complaint in the first suit that the former fence was a division fence.

The question of jurisdiction, whether a bill to remove a cloud on the title in dispute or to restrain the alleged...