Waring v. Stinchcomb

• Decision Date: 18 July 1922
• Docket Number: 60.
• Parties: WARING et al. v. STINCHCOMB et al.
• Court: Maryland Court of Appeals

119 A. 336

141 Md. 569

WARING et al. v. STINCHCOMB et al.

No. 60.

Court of Appeals of Maryland

July 18, 1922

Appeal from Circuit Court, Anne Arundel County, in Equity; Robert Moss, Judge.

Suit by Frank M. Stinchcomb and another against Masonetta M. Waring and husband. Decree for complainants, and defendants appeal. Reversed and remanded, with instructions.

Ridgely P. Melvin and A. Theo. Brady, both of Annapolis, for appellants.

Nicholas H. Green, of Annapolis, and William L. Marbury, of Baltimore for appellees.

PATTISON J.

The bill in this case was filed by Frank M. Stinchcomb and Sarah A. Stinchcomb, appellees against the appellants. The appellees own a tract of land lying at the mouth of the Magothy river, in Anne Arundel county, and bordering partly on the river and partly on the Chesapeake Bay. The appellant Masonetta M. Waring owns a tract of land, bordering on the Chesapeake Bay, lying to the east or southeast of the appellees' land. The land of the appellant Masonetta M Waring, which is known as "Pettybone's Rest," was granted to Richard Pettybone by patent on the 25th day of October, 1673.

The property now owned by the appellees is composed of two tracts of land, one granted on the 10th day of May, 1685, to Richard Bayly, designated as "Betty's Point," and the other granted on the 24th day of September, 1663, to Henry Woolchurch and designated as "Leonard's Neck." "Betty's Point" is described in the patent as lying in Anne Arundel county "on the south side of a river called Magothy river and on the west side of a creek called Magothy creek, beginning at the mouth of said creek and running up the said creek south 14 perches to the easternmost bounds of a parcel of land formerly laid out for Henry Woolchurch called 'Leonard's Neck,"' etc. "Leonard's Neck" we need not describe further than to say that it bordered on the Magothy river to the west of "Betty's Point."

The location of "Pettybone's Rest" is described in the patent as "Lying in Anne Arundel county on the west side of the Chesapeake Bay, bounded on the east by the said bay from Burles Ponds to a creek by the mouth of Magothy river called Magothy creek, on the north by the said creek," etc.

It will thus be seen that by the patent, the tract of land known as "Betty's Point" was separated from "Pettybone's Rest" on the bay by the mouth of Magothy creek. "Betty's Point" lying to the west or north of the creek and "Pettybone's Rest" to the east or south of it.

In the bill, it is alleged:

"That the original outlet of the said Little Magothy river (or Magothy creek) has closed, and there has been formed by alluvion and accretion from the said original outlet of said Little Magothy river (or Magothy creek) a considerable body of sand extending from the line of the property of said defendants laterally across the front of the property of the plaintiffs, and directly in front thereof, so as to exclude from the bay and Magothy river a large portion of their property, and to that extent making of their property an inland farm.

That for many years there has existed a fence across the aforesaid strip of sand so as aforesaid formed by alluvion and accretion, erected by the former owner of [the land of] said defendant, Alfred A. Stinchcomb, at a point, within the memory of said plaintiffs, where the outlet of said Little Magothy river existed.

That recently the defendants have undertaken to come on the side of said fence where the property of the plaintiffs is located and attempted to claim unjustly, and without right or justification in law or good morals the entire strip of land extending across the property of the plaintiffs, and thereby to that extent to deprive them of valuable water front privileges, and to the destruction of their property in the manner in which it has always been used and enjoyed.

That such claim on the part of the defendant will work an irreparable wrong to the property of the plaintiffs, by making of their said property to the extent of said alluvion and accretion an inland farm, thereby depreciating same in value to the extent of many thousands of dollars, and, if persisted in, will eventually shut out the plaintiffs from access to the bay shore, and make their said property valueless as a water-front property.

That the defendants have recently torn down and removed the aforesaid division fence erected by the late Alfred A Stinchcomb, father of the defendant Masonetta M. Waring, and attempted to obliterate all marks thereof as to its location, and after the plaintiffs at great expense and work rebuilt same at the same location as fixed by the survey thereof, before it was destroyed by the defendants, the defendants or their agents and servants came upon the property of the plaintiffs and again destroyed said fence.

That said plaintiffs are now engaged in rebuilding said fence a second time, and, unless the defendants are restrained by this court from so doing, the plaintiffs believe and charge [they] will again destroy same.

That the defendant has refused and still refuses to allow the plaintiffs to maintain and continue the said fence above referred to in its proper use, and to which they are clearly entitled, and the plaintiffs are without adequate remedy at law without an action for each trespass, which would make a multiplicity of suits, and are without redress except by the intervention of this honorable court."

The bill then prays:

"That the defendants, her, his, or their agents, servants, and employees, may be restrained from in any manner interfering with the plaintiffs, their agents, servants, and employees in the maintenance of the fence hereinbefore referred to and from molesting or destroying same."

"And that the plaintiffs may have such other and further relief, as their case may require."

Upon the bill, an injunction was granted, with leave to the defendants to file a motion to dissolve it after filing their answer within the time therein mentioned. The defendants filed their answer and motion, and in their answer denied that the original mouth or outlet of Magothy creek had ever closed, though its location had "shifted to an unappreciable extent during the course of time, leaving the lines of the property of the plaintiffs and defendants, respectively, unchanged, except in so far as the defendants' land has been added to by the sand formation contiguous to their original tract"; and they allege that the formation mentioned is exclusively on the defendants' side of Little Magothy river, and nowhere touches the plaintiffs' land, it being separated therefrom by said creek; that said "sand bar and extension have from time immemorial been considered as belonging to the lands now owned by the defendants, without any claim or pretense having previously been made to ownership by the plaintiffs or their predecessors in the title."

They admit, however, that they erected the fence across this formation near the mouth of Little Magothy river, but allege it was done for the purpose only of inclosing a pasture thereon, as the formation above that point, that is to the westward of it, was a sand formation and unfit for pasture. They also allege that the fence was not intended to be, and was not actually, a boundary or dividing fence, but that the entire sand strip was a contiguous part of defendants' land exclusively, and that the fence was located at said point solely for the purpose above stated. They also allege that they had sold this formation of land to a point south or eastward of the fence, and the purchaser had subdivided and platted it into small lots, for which reason it became necessary for them to remove the fence, to a point further inland upon their remaining property; that thereafter the plaintiffs, without leave or license, trespassed upon the lands of the defendants, which had been sold, but not yet conveyed to the purchaser, and rebuilt the fence upon the line, where it had been originally built by them; that they, acting within their rights, removed the fence, and subsequently the plaintiffs again trespassed upon their land and rebuilt the fence.

They also allege they have not trespassed upon the lands of the plaintiffs, or attempted to locate or to claim any property of the plaintiffs, but said formation is their property, being contiguous to their farm, and has always been used and occupied by them as part of it, and their ownership of it acknowledged by the plaintiffs.

They deny that the formation, though held by them as their property, will work an irreparable wrong to the property of the plaintiffs, or that any act attributable to them will depreciate the value of the plaintiffs' property, or shut out the plaintiffs from access to the bay shore, or make their property valueless as water-front property. On the contrary, they allege the plaintiffs have approximately three-fourths of a mile water front on Chesapeake Bay, irrespective of the sand strip in question, and the value of their farm as a water-front property is in no sense dependent upon said sand strip; that the sand strip in question does not cover the front of the plaintiffs' property, as alleged, but runs along a low pasture field of theirs, and has no appreciable effect on the value of the plaintiffs' land; that the main portion of plaintiffs' farm is on a high elevation overlooking Chesapeake Bay, and its value as a farm and as a water-front property is attributable to that fact, and to nothing affected by the sand strip in question.

They also "deny that they have obliterated, or attempted to obliterate, any marks as to the location of a division or boundary fence." And they also deny that the plaintiffs are without adequate remedy at law, and whatever redress, if any, is open to the plaintiffs, is obtainable therein, as the...