Andrews v. Pitts

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the defendant (appellee) in an action of trespass quare clausum fregit, brought by the appellant. The narr. alleges that the defendant “wrongfully entered upon and cut down and •carried away trees from all that part of a tract or parcel of land, called 'Pair Dealing’ and commonly known as the 'Henry D. Wright Mill Property,’ owned by the plaintiff in fee simple, lying and being in Hurloek District of Dorchester County, which is bounded on the north and east by the old mill stream and branch, and on the south and west by the lands of John P. Harper, W. Marion Pitts, Lizzie Barber .and Benjamin P. Merrick, as said lands stood in the year 1902.” The defendant pleaded that he did not commit the wrongs alleged, and the trial of the case was begun. There then appears in the record: “Jury empanelled and sworn, April 28, 1914.

On motion, leave granted plaintiff for war ³³⁰ rant of resurvey and to withdraw a juror. Juror withdrawn.” In the docket entries a similar entry appears, and on May 20th a warrant of resurvey was issued. The appellant- contends that the warrant was issued by the direction of the Court, and not on his motion. The resurvey was made and the certificates, plats, etc., were returned by the surveyor and sheriff in pursuance of the requirements of the warrant.

On November 11th, 1911, another jury was empanelled which rendered a verdict in favor of the defendant. On that verdict there was a judgment for defendant for costs from which this appeal was taken. At the trial of the case the plaintiff offered the patent for “Pair Dealing” and certain deeds in support of his title. He then offered the plat and certificate made by the surveyor and his testimony to explain the plat and objects thereon. “Counsel for defendant then began a cross-examination of the witness by asking him what he did on the first day he went to the land to make his survey.

Plaintiff’s counsel objected to the question as tending to impeach the plaintiff’s survey and location; there being no defense on warrant and the survey having been made by direction of the Court, and the correctness of the location being admitted by the plea, but the question was admitted by the Court, subject to the objection, wherefore plaintiff’s counsel stated to the Court that he objected to any testimony being taken by the defendant attacking or in any way impeaching the location of the alleged trespasses of the defendant, alleged in the declaration, and made by the plaintiff under direction of the Court”; but the evidence was admitted subject to exception. The defendant’s attorney then continued to- cross-examine the surveyor and he (his testimony being still subject to exception) explained to the jury the survey made for the defendant and the objects pointed out by his witnesses. The plaintiff moved to exclude the testimony admitted subject to exception, and that motion being overruled the plaintiff excepted. The action of the Court is presented by the first bill of exceptions. ³³¹ 1.

Tbe theory of the appellant is, as stated in his brief, that “When the defendant pleads not guilty of the wrongs alleged, and does not take defense on warrant, the location, as alleged, is admitted by the plea, and the plaintiff is not required to prove it, nor is the defendant allowed to gainsay it.” As the record shows that there was a motion by, and leave granted to, the plaintiff for a warrant of resurvey, we do not understand how the mere statement in the first bill of exceptions that the survey was made by “direction of the Court” can in any way affect defendant’s right to dispute the correctness of the locations made by the plaintiff, unless it be, as seems to be contended by the appellant, that the defendant cannot have the benefit of the survey made by direction of the Court, if he had not taken defense on warrant. If that be appellant’s contention we cannot agree with him, as we have no doubt about the right of the Court to order a warrant of resurvey when satisfied that it is necessary “for the better information of the said Court and the jury in the truth of the premises,” that the lands be carefully resurveyed and laid out, etc., as stated in the form given in 2 Harr. Ent. 785. Until about 1700 the practice in the provincial Court of Maryland was to issue a warrant to the surveyor to lay out the land in dispute in the presence of the sheriff, who was commanded to summon and empanel a jury to go upon the land, and the surveyor was directed “to run the lines according to the patent and the direction of the jury, 2 Poe 470; McHenry on Eject. 60, and cases reported in early part of 1 H. £ McH.

If the jury agreed as to the proper mode of laying out the land, the Court sometimes entered up a judgment on its verdict. In the note to Shaw v. Lynes, 1 H. & McH. 18 , Mr. Brantly gives a list of over twenty cases in each of which the warrant of resurvey was executed by a surveyor in the presence of the sheriff “under the direction of a jury of the neighborhood.” In Watkinson v. Collins, Ibid. 12, after several attempts a jury was finally empanneled which agreed upon a verdict, which was signed and sealed by ³³² the surveyor, sheriff and jurors, and the report of the case theu states: “Which being read and heard, the defendant, by his attorney, pleaded not guilty, and issue was joined,”-— the survey being thus made before a plea was filed. The record does not show whether defense on warrant was entered, but if it was, it was not regarded as part of the pleadings. Somewhere about the beginning, of the 18th century, or towards the end of the previous one, the practice of having a jury go upon the land and directing the surveyor how the location should be made was abandoned.

After that the warrant was executed by the surveyor in conjunction with the sheriff, as is still the practice. In 2 Poe, sec. 410, it is said: “It seems probable, too, that what was at first allowed by the Court upon application, and, perhaps, only after cause shown, came soon to be recognized as a right, and that in order to entitle himself to a resurvey of the land, the defendant, after pleading not guilty, simply gave a direction to the clerk to enter on the docket the words “defense on warrant”; and thereupon, without any formal application to the Court, and without any special order from it, the plaintiff was required to issue his warrant of resurvey, and prove his title and possessory right to the land described in the declaration by establishing its boundaries, courses and distances.” Under such circumstances it was very properly said by Judge Dorset in Addison v. Hack, 2 Gill, 221 , that: “In an action relating to lands, if the defendant does not see fit to take defense on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties.” The plaintiff had burdens enough on him when defense on warrant was entered, and. if he received no notice that the defendant would take “defense according to his pretensions as they shall appear to be laid down on return of a warrant of resurvey” (2 Harr. Ent. 55), he had the right to assume that the defense was simply one of title and not of location. But the abuse of the privileges of defendants under the practice as it became established was so oppressive that the ³³³ Act of 1852, Chapter 177, was passed.

That made radical changes in the practice, and it seems to us that there can now be no question about the right of the Court, when it is satisfied that there is a dispute about the boundaries, to order a warrant of re-survey to be issued, although the defendant has not taken defense on warrant, and when a warrant is so issued, the rules of practice applicable to surveys made after defense on warrant is taken, apply. The defendant can no longer take defense on warrant as matter of right, and have a re-survey of the disputed land. Section 80 of Article 75 of the Code provides that “No warrant of re-survey shall issue in any action of ejectment unless the Court shall be satisfied that there is a dispute about the location of the lands claimed in said action; nor shall any issue in other actions unless there is a dispute about the location of the lands for the injury of which damages are claimed, or unless the Court shall be satisfied that plats are necessary for illustration,” and section 81 is, “any action where the parties hold or claim under the same title the lands in dispute; no warrant of re-survey shall issue, except in cases where the parties claim different parcels under the same title, and it appears to the Court there is a dispute about the location of the divisional line or lines.” Application must therefore be made to the Court, and the warrant can only issue on its order, or by agreement of the parties. Section 82 shows clearly that the warrant can be taken out at the instance of either party.

It says, “Where a warrant of re-survey shall be issued in any action of ejectment or other action, the party applying for such warrant shall first make the location of his claim and pretension, and . such other location as he may think necessary to bring the cause fairly to trial.” But if the Court becomes satisfied that the ends of justice require a warrant of resurvey to be issued, there can be no reason why it can not of its own motion direct it to be done, and if the warrant is ordered on motion of the plaintiff, or at the instance of the Court, there can be no possible reason why there should not be the same rules as to ³³⁴ locations as if it was taken out by tbe defendant. We have been speaking as if this was an action of ejectment, but there is as much, if not more, reason why what we have said should apply to an action of trespasss quare clausum fregit. In Funk v. Hughes, 5 Gill. 315, which was an action of trespass, the warrant was taken out by the plaintiff, as is shown by an examination of the record, and that was before the Act of 1852 was passed. It was there held, quoting from the syllabus for convenience, that: “Under issue joined in an action of trespass upon the plea of not gnilty, the plaintiff may recover damages for any trespass by the defendant of the nature described in the declaration, and committed anywhere within the lines of the tract of land mentioned in it.

But where plats axe deemed requisite, it is necessary for the plaintiff to locate correctly, not only the tract of land claimed, but the spots within the lines of such tract, whereon the trespass was committed, and of which the plaintiff complains, and to such spots his proof must be confined. Place® of trespass, of which the explanations are silent, can not .be proved.” See also what was said in Parker v. Wallis, 60 Md. 15 , about the importance of a survey under the order of Court in such cases. 2. The appellant contends that “when no re-survey is required by the pleadings, if one is made and offered in evidence, it is inferred that it was authorized for illustration only,” and cites N. Y. P. & N. R. Co. v. Jones, 94 Md. 24 , in support of that contention. But that was a wholly different case from this.

There was no dispute there as to the location of the lands for the injury of which damages were claimed, and hence the Court said that, “It must be considered that the plat was authorized for illustration only.” Judge Pearce, after quoting from Addison v. Hack , 2 Gill. 221, was careful to refer to the fact that since that case was decided, the Act of 1852 was passed, by which it was provided that “In no action shall plats be considered as pleadings or evidence per seP sec. 85 of Art. 15. The clear inference to be drawn from that decision is that where the title involved depends ³³⁵ upon conflicting pretensions or disputed lines and a warrant of re-survey is issued