Wissler v. Elkins

• Decision Date: 10 December 1925
• Docket Number: 48.
• Citation: 131 A. 444,149 Md. 318
• Parties: WISSLER v. ELKINS ET AL.
• Court: Maryland Court of Appeals

131 A. 444

149 Md. 318

WISSLER v. ELKINS ET AL.

No. 48.

Court of Appeals of Maryland

December 10, 1925

Appeal from Circuit Court, Frederick County, in Equity; Glenn H Worthington, Judge.

"To be officially reported."

Suit by Joseph E. Elkins and another against Gertrude Wissler to enjoin encroachment on realty. Decree for plaintiffs, and defendant appeals. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

Parsons Newman and Harry C. Hull, both of Frederick, for appellant.

E Austin James and Alban M. Wood, both of Frederick, for appellees.

ADKINS J.

The bill of complaint in this case alleges that plaintiffs are the owners by the entireties of a lot of land on the south side of East Church street, Frederick, Md., fronting 28 feet more or less on said street, and known as 204 East Church street, which was conveyed to them by G. S. C. Bopst and wife on November 30, 1921, and of which plaintiffs have since been in possession; that the brick dwelling thereon is constructed 18 inches more or less east of the western boundary line of said lot; that the defendant is now engaged in the construction of a garage on the property adjoining plaintiffs' lot; and that the foundation of said garage already excavated, or partly so, extends over and beyond the boundary line of plaintiffs' premises for a distance of about 18 inches, more or less; that the construction of said garage on part of plaintiffs' property would be an irreparable injury to said property, and equivalent to an assertion of title by the defendant to the land owned by plaintiffs in fee simple.

The prayer of the bill is for an injunction restraining defendant and her agents and employees from encroaching on plaintiffs' property, and from building any part of said garage thereon, and from committing any waste or trespass thereon, and for further relief. In her answer defendant denies that she is building her garage or encroaching in any way upon the property of plaintiffs, and avers that she is building said garage on her own land.

In the course of the taking of testimony before the chancellor it developed that the foundation of defendant's proposed garage extended up against plaintiffs' building and uncovered part of the foundation of plaintiffs' house on the west side, defendant's property adjoining plaintiffs' on the west; that plaintiffs' foundation on the west side extends about 1 foot or 15 inches beyond the wall of the house, said extension being uncovered when defendant's flower beds were dug up to pour cement in; that the fence dividing the rear ends of the two lots runs 2 feet west of plaintiffs' west wall, and, this fence had been there as long as any witness remembered--much longer that 20 years.

The testimony of the county surveyor and city engineer, Crum demonstrates, we think, that plaintiffs have the record title to 30 feet front, which would, of course, be covered by the expression in the deed, "twenty-eight feet more or less." He traced back the titles to the lots owned respectively by plaintiffs and defendant to the original lots of Frederick Town laid out in 1783, confiscated British property, laid out on a plat in the city register's office. He testified that plaintiffs' lot was a part of lot No. 272 on the said original plat, and defendant's a part of No. 271, the northeast corner. That each of lots Nos. 271 and 272 was 62 feet wide. That he took the deed from Bopst to plaintiffs, and working the chain back to where Bopst bought it from Dorsey and Dorsey from Wertheimer, and Wertheimer from Reich, as attorney in fact. That in the last-mentioned conveyance, dated August 31, 1907, the lot is described as having a front of 28 feet more or less, but the deed further states that the lot conveyed is the unsold portion of the lot which was conveyed to Marshall Fout by David B. Devitt. That witness looked up what portion had been sold, and found it was 32 feet conveyed by Marshall Fout to Maggie Mantz in 1895, which left remaining 30 feet of lot No....