Wilson v. Hinsley

• Decision Date: 16 February 1859
• Citation: 13 Md. 64
• Parties: MARY JANE WILSON v. JOHN HINSLEY.
• Court: Maryland Court of Appeals

13 Md. 64

MARY JANE WILSON v. JOHN HINSLEY.

Court of Appeals of Maryland.

February 16, 1859

In an action for damages done to the plaintiff's house by the manner in which the defendant built a stable adjoining it, evidence that the marketable value of the house had been diminished by the injury complained of is admissible, but not that such value had been diminished by the fact of the erection of a stable adjoining thereto.

A party in possession of real estate can maintain an action for a trespass against any one save the legal owner; the fact that his tenant was in possession of the property and paid rent therefor to the plaintiff, gives him a right to bring an action of trespass against a wrong-doer, for an injury to the reversion.

APPEAL from the Superior court of Baltimore city.

Trespass on the Case, brought on the 10th of May 1855, by the appellant against the appellee, to recover damages for alleged injuries to the plaintiff's reversionary interest in a certain dwelling-house in the city of Baltimore, by the improper construction of a stable erected by the defendant upon the adjoining lot.

The declaration contains three counts, the second of which complains that the defendant wrongfully erected and caused to be built near to and upon the plaintiff's said messuage and premises, a certain stable for horses, the said defendant then and there omitting and utterly neglecting, in the said erection of said stable, to build a proper southern wall for the support of the same, and the separation thereof from the said messuage of the plaintiff, but making use of the northernmost wall of the said messuage, in the place of and as a substitute for a proper and sufficient wall of the said stable, and the said defendant, in the execution of this wrongful purpose, then and there greatly injured the said wall of the said messuage, by driving into the same divers spikes and nails, and placing against and upon the same divers pieces of timber, joists, boards and planks; and also the said defendant, in and by the building and erection of the stable aforesaid, and in the manner aforesaid, and also by wrongfully using the said stable, and placing and keeping horses therein, against and near the said wall of the said messuage, hath greatly injured the said messuage and lessened the value thereof. By means of which said several premises the said plaintiff hath been and is greatly prejudiced and aggrieved in her reversionary estate in the said messuage and premises, so in the possession and occupation of her tenant. Plea, non cul.

1 st Exception. Proof was offered that one Mrs Hyland, was in possession of the house, as the tenant of, and paid rent therefor to, the plaintiff; and also evidence of the manner in which the defendant had constructed his stable on the adjoining lot, tending to sustain the allegations in the nar. The plaintiff then proved by Henry Myers, that he was a property agent, his business being the buying and selling real estate for others, that the house in question had been in his hands for some months for sale for the plaintiff, and that he was well acquainted with the premises, and had seen the defendant's stable and examined particularly how it was constructed. The plaintiff then asked this witness: " Has any effect been produced upon the marketable value of the plaintiff's house in Calvert street," (mentioned in the declaration,) " by the erection adjoining thereto of the defendant's stable mentioned in the declaration?" To this question the defendant objected, as tending to draw forth matter of opinion, which objection the court (LEE, J.,) sustained, and refused to permit the question to be asked. To this ruling the plaintiff excepted.

2 nd Exception. Other evidence was then offered by the plaintiff, of a similar character to that contained in the first exception, including the additional fact, that the house was insured in the plaintiff's name, and that the liability to fire was increased by the manner in which the defendant's stable was constructed. The defendant then offered in evidence a deed, dated the 25th of June 1844, from James P. Wilson, the plaintiff's father, to John S. Hollins and Benjamin H. Wilson, conveying the unexpired term of ninety-nine years, with benefit of renewal forever, in a certain lot of ground on Calvert street, in Baltimore, to the grantees, in trust for the use of the grantor for life, with power to him to sell the same and invest the proceeds in other property, and after his death in trust for the proper use, benefit and behoof of Mary Jane Hollins Wilson, his daughter, her executors, administrators and assigns. It further appeared that the grantor, James P. Wilson, died about the time of the Mexican war; that the plaintiff has been of age for some time; and that the defendant had been in treaty for the purchase of the house from the plaintiff, the latter being represented by Mr. John S. Hollins, who acted in the matter as her agent, and in that character only, disclaiming all right of sale in himself. The defendant then asked an instruction to the jury:

That if they find from the evidence that the property on north Calvert street, adjoining on the south the stable of the defendant, was, and now is, the same property mentioned in the deed offered in evidence by the defendant, then the plaintiff cannot recover in this form of action.

The plaintiff then asked the court to instruct the jury, that if they believe from the evidence that, at the time of committing the grievances complained of in the declaration, Mrs. Hyland was in occupation of the house and lot mentioned in the declaration, as tenant to the plaintiff, and was let into possession by the plaintiff, and paid rent to her, then the plaintiff is not precluded from maintaining this action, by any thing in the defendant's prayer contained, though they should find all the facts hypothetically set forth in said prayer to be true.

The court refused the plaintiff's prayer and granted that of the defendant, with this addition, " and the trustees in said deed who hold the legal estate are the proper parties to bring the suit." To this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.

A. W. Machen for the appellant.

The testimony of Myers in the first exception, as to the diminished value of the premises was erroneously excluded, because in a case like this, where property is injured not only by a nuisance erected near it, but by a direct injury to the property itself, and a wrongful use of it, the proper measure of damage is, by how much less the premises would sell in consequence of the wrongful acts of the defendant, (3 Wels. Hurls. & Gor., 168, 182, Hosking vs. Phillips,) and it is difficult to see how this diminished value can be proved, except by the testimony of an expert, like Mr. Myers.

After the plaintiff had shown a prima facie title to the injured premises, by proof of payment of rent to her by the tenant in occupation, the court below, by granting the defendant's prayer, ruled that the deed from the plaintiff's father to Hollins and Wilson, as trustees, entirely rebutted her case, upon the ground, that her action was grounded on an equitable and not a legal right. This, it is submitted, is a mistake, for--

1st. The receipt of rent from the tenant in possession, gave the plaintiff a good legal title to the reversion against every body, who could not show a legal title in himself; and the defendant, a mere wrong doer, not claiming under one who had the legal estate, could not set up any outstanding estate against the prima facie title of the plaintiff. In Daintry vs. Brocklehurst, 3 Wels., Hurls. & Gor., 207, this point was directly decided, and the reasons by which it is supported are clearly stated in the judgment of the court, as delivered upon consideration by Baron Parke. (See, also, what Baron Parke says, of the previous case of Day vs. Williams, in the same court, which was the very case of cestui que trust and trustees, and what would and ought to have been the decision there, if the point had been put before the court. Ibid., 210.) The same principle appears also, though not so distinctly, in the case of Page vs. Hachett, 10 Jur., 634, where it was held, that a plaintiff might maintain an action for a nuisance to a wharf, which he alleged himself to be possessed of, by evidence of general user, although the defendant gave in evidence a lease to the plaintiff from the owner, granting him an easement in the wharf merely and not an estate. So in respect of personal chattels, it has been held in this State, that a defendant in trover, who has meddled with negroes in the possession of the plaintiff, cannot be permitted to show that the title at the time of the conversion was not in the plaintiff, and was outstanding in a third party. Harker vs. Dement, 9 Gill, 12, where Archer C. J. and Le Grand A. J., held at the trial, that the jus tertii could not be set up by the defendant, and this ruling was affirmed in the Court of Appeals. And this doctrine stands on the same principle, on which a person in possession is held to have a good title against every body except the legal owner of the estate. In an action against a wrong doer, a plaintiff who is in possession, whether directly or mediately through his tenant, stands like a defendant in ejectment. The plaintiff in ejectment is put to proof of title, because his action admits the possession of the defendant, and possession is prima facie evidence of title; and a plaintiff in an action against a wrong doer, is entitled to the same presumption when he has once brought proof of his possession. Gardner vs. Heartt, 2 Barb., 169, 170. ...