Thomas v. Ford

• Decision Date: 12 March 1885
• Citation: 63 Md. 346
• Parties: GEORGE THOMAS v. WILLIAM FRANK FORD.
• Court: Maryland Court of Appeals

63 Md. 346

GEORGE THOMAS v. WILLIAM FRANK FORD.

Court of Appeals of Maryland

March 12, 1885

Appeal from the Circuit Court for St. Mary's County.

The case is stated in the opinion of the court.

The cause was argued before ALVEY, C.J., YELLOTT, MILLER ROBINSON and BRYAN, JJ.

B Harris Camalier and Daniel R. Magruder, for the appellant.

Daniel C. Hammett and Frank H. Stockett for the appellee.

Alvey C.J., delivered the opinion of the court.

Under the peculiar circumstances of this case, we think the motion to dismiss the appeal ought not to prevail. The appeal was taken on the 26th of March, 1884, and the bill of exception, though signed as of the 22nd of March, 1884, was not, in fact, signed and filed in the cause until the 2nd of May, 1884. The case had been tried at the preceding September Term of the Circuit Court, and that term, and the following December Term, had been allowed to expire before the bill of exception was signed. This delay in having the bill of exception prepared would, but for what appears to have been an assent on the part of the appellee to having it signed by the judges, have deprived the appellant of the benefit of the exception taken at the trial.

It does not appear that there was any rule of the Circuit Court prescribing the time for preparing bills of exception; and in the absence of any such special rule upon the subject, the general rule of practice is that the exception must be taken and noted at the time of the ruling made; but the reduction of the exception to form may and should be deferred to some more convenient time after the trial, but during the same term of court, when the exception should be presented for the signature and seal of the judge. Wheeler v. Briscoe, 44 Md. 308, 311. Delay in the preparation of the exception ought never to be allowed beyond the duration of the term of the court at which the trial takes place, except it be by the express permission of the court given during the term. If the exception be presented to the judge after the term, and without an order for the extension of time, he can only sign the exception by the consent of the parties. Wheeler v. Briscoe, 44 Md. 312. For as it has been well said, it would be dangerous to allow a bill of exception of matters depending upon memory to be made up at a distant period, when the facts may not be accurately recollected; and the judge should not allow this to be done. Indeed, the difficulty that appears to have occurred in settling the exception in this case, consequent upon the delay that was allowed to occur, furnishes ample illustration of the wisdom of the rule that requires the exceptions to be prepared as soon after the trial as practicable, or, at any rate, during the term. Here, however, it would appear that it was by the consent of the parties that the exception was signed by the judges at the time it was actually signed by them. The attorneys of the appellee participated actively in settling the facts of the exception, and had incorporated therein such facts as they desired; and it was at their instance that the exception was submitted to the three judges for their correction and approval; and all this without the slightest intimation that they were objecting, or intended to raise an objection, to the right or power of the judges to sign the exception thus prepared and presented. After what has occurred, we think it is too late to raise the objection in this court for the first time. If the objection had been taken before the exception was signed, we take it for granted the judges would have withheld their signatures, as they could and should rightly have done. And as to the delay in making up and transmitting the transcript of the record to this court, that would plainly appear to be attributable to the fault or omission of the clerk. The motion to dismiss the appeal must, therefore, be overruled.

And having disposed of the motion to dismiss the appeal, we come now to consider the questions raised on the trial of the cause.

The action is for an alleged trespass quare clausum fregit. And the grievance alleged, in addition to the breaking and entering the close, is that the defendant encumbered the land of the plaintiff, along the shore of the river Patuxent, by piling a large quantity of cord wood thereon, whereby the plaintiff was deprived of the use and enjoyment of the land thus encumbered by the wood.

At the trial the plaintiff asked three instructions from the court to the jury, and the defendant asked none. The first and second prayers were granted as modified by the court, and the third was refused, without any substituted instruction therefor. The first prayer as offered asked the court to instruct the jury that if they found the defendant to be guilty of the acts of trespass complained of, then the plaintiff was entitled to recover, as the measure of damages, such a sum per cord as the jury might find such use and occupation of the land was worth; "and such further damages as they might find the plaintiff had suffered by such use and occupation of the said shore." This prayer was granted, with the omission of the last clause, in respect to further damages.

The second prayer as offered was, that though it might be found as a fact that other persons besides the defendant deposited wood and other things upon the river shore on the land of the plaintiff, the locus in quo, such acts of other persons afforded no justification to the defendant; such acts of user not being sufficient to constitute the said shore a public landing; and that there was no sufficient evidence to establish the existence of a public landing, with definite limits. This prayer as offered was rejected; but in lieu thereof the court instructed the jury, that such act or user of third persons would afford no justification to the defendant, "unless the jury should further find that such user of said land was adverse to the claim of the plaintiff, and those under whom he claimed, exclusive and uninterrupted, for at least twenty years, and that such user was within reasonably defined limits."

The third prayer asked that the jury be instructed, that in estimating the damages no deduction should be made by reason of the fact that some portion of the wood deposited was piled or corded "upon the bed of the public road running through the land of the plaintiff along the said river shore." This prayer was rejected by the court, and no instruction was given in lieu thereof.

It is upon these prayers as offered, and the instructions actually given, that the questions arise on this appeal.

The plaintiff's land, known as "Mattaponi," bounds on the Patuxent river for a considerable distance; and through this land there runs a public county road to a wharf owned by the plaintiff on the river, and from the wharf the road runs up and along the shore of the river for some distance before leaving the land of the plaintiff. Just immediately below the wharf, and on the right of the road...