Burgess & Commissioners v. Stocksdale

McSherry, C. J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit. There are eighteen bills of exception in the record. Seventeen of. them relate to rulings on the admissibility of evidence and one concerns the instruction given by the trial Court and also covers the twenty rejected prayers of the defendant.

The facts which gave rise to the controversy are as follows : The pláintiff, Mrs. Eliza J. Stocksdale, is the owner of a house and lot of ground situated in the town of New Windsor in Carroll County. The lot fronts on Church street and rims back to a public lane which is parallel to Church street. On the east side of the house and lot there is an alley, thirteen feet and eight inches wide, extending from Church street back to the public lane. The east wall of the plaintiff’s house is part ²⁰⁷ of the west line of the alley, and the remaining portion of the west line of the alley is marked by a fence and by the east face of a stable erected on the plaintiff’s lot.

The plaintiff converted a window in the east wall of her house into a doorway which opened into the alley. She put steps to this doorway and the steps extended thirty inches into the alley. She constructed a board-walk of the width of thirty inches from the steps and along the east wall of the house to Church street. Subsequently, and in order to prevent the surface-water from coming in contact with the foundation wall of her house, the plaintiff caused a trench to be dug beside the foundation wall along the alley and built a brick wall some few inches distant from and parallel to the foundation, and she carried this parallel wall about six or eight inches higher than the level of the alley.

There was a drain-pipe extending from the house into the alley. The Burgess and Commissioners of New Windsor removed the steps, they tore away the boardwalk and that part of the parallel brick wall which projected above the surface of the alley and cut and removed the drainpipe ; and they did these acts upon the assumption that the alley was a highway over which they had control, and upon the further assumption that the steps, board-walk, parallel wall and drain-pipe obstructed the free use of the alley by the public. The plaintiff then brought this suit against the municipality to recover damages for those trespasses. The declaration is in the usual form and alleges that the defendant, a municipal corporation, “broke and entered the plaintiff’s close * * * * fronting seventy-seven and one-half feet on the north side of Church street * * * and running back two hundred and fourteen and a-half feet deep * * * * and being the same land that was conveyed to the said Eliza J. Stocksdale by Deborah A. Baile by deed dated October sixteenth, eighteen hundred and ninety-eight, and also by a confirmatory deed from said Deborah A. Baile to said Eliza J. Stocksdale dated April twenty-fifth, nineteen hundred,” and then and there committed the acts of trespass above specified.

The defendant pleaded, first, that it did not commit the wrongs ²⁰⁸ alleged ; secondly, that the land was not in the plaintiff’s close; thirdly, liberum tenementmn, but this plea was withdrawn ; and fourthly and fifthly, that the alley was a highway, the free use of which by the public had been obstructed by the plaintiff, and that the supposed trespasses consisted in the removal by the defendant of those obstructions. Upon the issues framed on the first, second, fourth and fifth pleas the case went to trial and the trial resulted in a verdict for the plaintiff. Judgment was entered on that verdict and the defendant has brought the record into this Court on appeal. Before proceeding to consider the numerous exceptions a brief statement of the legal principles governing actions of this character will be made because that method of dealing with the case will greatly shorten the discussion.

The, action of trespass quare clausum fregit differs widely from the action of ejectment. In the former the gist of the action is the injury to the possession; whilst in the latter the plaintiff, in order to recover, must have the legal title to the land and a possessory right not barred by the Statute of Limitations. In the first, title need not be shown to be in the plaintiff, in the second, not only must title be shown to be in the plaintiff, but the title relied on must be a legal title superior to that of any other person. It is the settled law of Maryland that “any one who is in actual and exclusive possession of real estate or chattels real at the time of the trespass, though his occupancy be limited and temporary, and though he have no title ■ whatever, may maintain this action (trespass quare clausum fregit) against any wrongdoer, or against any one who has not title himself or authority from the real owner.” Poe Pl., sec. 242; Harker v. Dement, 9 Gill, 11 ; Tyson v. Shuey, 5 Md. 550 ; Wilson v. Hinsley, 13 Md. 73 .

This form of action may be resorted to for trying title to land, as in Ridgely v. Bond, 17 Md. 22 . When such is the case recovery can be had only on the strength of the plaintiff’s title, just as in ejectment. But it does not follow by any means that proof of title in the plaintiff is an essential requirement in every instance where trespass quare clausum fregit is brought. A failure to remember that ²⁰⁹ it is not necessary in every action of trespass guare clausum fregit to prove title in the plaintiff will lead to confusion of thought and to consequent misapplication of legal principles.

If it is not necessary for the plaintiff to prove title, of course it is not necessary to prove such a title as will support an action of ejectment. The learned senior counsel of the defendant rarely misapplies a legal principle, but his inadvertent omission to recall the distinction between an action of ejectment and of trespass quare clausum fregit in the particular just indicated, has led to the error which runs through the entire case. Under the pleadings title in the plaintiff to the locus in quo was not an issue which the plaintiff was required to sustain. And this is true because so far as the averments of the declaration are concerned, the right of the plaintiff to recover depended on bare possession, and that right the defendant if a mere wrongdoer, could not defeat by proving an outstanding title in a stranger.

Possession will support the action! against any person other than the real owner or some one in* privity with him. The issues made up on the pleas did not. cast upon the plaintiff the duty to show title to the locus in quo;; for the first plea merely denied the trespass and damage, Stephen Pl., 160; Poe Pl., sec. 250; the second, disputed the possession ; and the fourth and fifth sets up new matter by way of confession and avoidance, which drew upon the defendant the burden of proof to sustain the avoidance. We have, then, so far as respects the plaintiff, the simple case of an action of trespass to recover damages for an injury to her possession ; and the constituent factors to be proved were, first,. possession ; secondly, an invasion of that possession by. the defendant, and thirdly, the amount of damages occasioned thereby. Under the plea of not guilty it was competent to the defendant to show title to the locus in quo in itself and the right of immediate possession ; for if the plaintiff had neither title nor the right of possession she could not maintain the action.

Storr v. James, 84 Md. 289 . The plaintiff offered evidence tending to establish all of the constituent factors which were necessary to make out her ²¹⁰ case. The exceptions numbered one, two, three, four, five, five, and six (there are two numbered five) were reserved by the defendant to the action of the Court in overruling objections to the admissibility of evidence offered by the plaintiff; and the remaining exceptions, other than the eighteenth, were taken to the refusal of the Court to admit evidence offered by the defendant and to the admission of evidence on the cross-examition of the defendants’ witnesses, and finally to the admission of certain evidence in rebuttal. In the first and second exceptions it is alleged there was error because the trial Court admitted in evidence the deed and the confirmatory deed referred to in the declaration.

The ruling was obviously right. Even if the deeds had been offered to prove title they would have been admissible, because the plaintiff may begin at either end of the case she pleases, and as she could not in one offer embrace her whole case she was entitled to present the items of proof separately. These deeds together with the oral testimony set out in the third exception and in one of the exceptions numbered five and in the sixth exception tended to show the outlines of the plaintiff’s land, and that the locus in quo was within those outlines. This was clearly competent to identify the plaintiff’s holdings and therefore to show the extent of her possession.

Besides this, the deeds tended to show color of title in the plaintiff and therefore to negative the suggestion that she was a mere trespasser herself; and even had the deeds been void they would still have been admissible as showing, not title, but the character of. her possession. “Where the plaintiff is actually in possession in person or by his agents or servants, but without title, as, for example, under a void or parol lease, and the defendant is a mere wrongdoer, entering without right,” the bare possession is sufficient to sustain the action. Poe Pl., sec. 245. There was no error committed in the rulings set out in the first, second, third, fifth and sixth exceptions. The other exception numbered five was taken to the admission in evidence of the minutes of the proceedings of the Burgess and Commissioners relative to the alleged acts of trespass.

These ²¹¹ minutes were competent evidence. They showed the resolutions adopted by the town authorities and directing the bailiff to remove the steps, board-walk and other structures mentioned in the declaration. This was evidence directly showing that the trespasses complained of had been committed by the municipality. The fourth exception was taken to a ruling allowing the plaintiff to show how the removal of the brick wall affected the plaintiff’s property.

The ruling was clearly correct. It simply admitted evidence tending to prove a part of the damage sustained by the plaintiff. There is no exception numbered seven in the record. The eighth exception became immaterial by reason of the answer given by the witness to the question objected to.

The ninth, tenth, eleventh and twelfth exceptions relate to rulings by which the defendant was denied the right to show by oral testimony and record evidence that the deeds held by the several persons who formerly owned the lot conveyed to Mrs. Stocksdale, did not include the alley in their outlines. It was not proposed in these exceptions or in any others to show that the title to the alley was in the defendant, but merely that it was not in the plaintiff. The evidence thus offered was not relevant or material. Plaintiff’s title was not in issue and the offer did not include a proposal to prove title in the defendant.

It might have been true that the former owners of the Stocksdale lot did not own the alley, and it might have been also true that the lines of plaintiff’s deed did not include the alley; but this would not have defeated her right to recover for an injury to her possession, if she was in actual possession, unless the offer had gone further and had proposed to show that the title and the right of possession were in the defendant. This is strictly in accord with Parker v. Wallis, 60 Md. 15 . That case holds nothing more than this, that though title is not in the defendant, he may still defeat the action when the plaintiff has neither title nor the right of possession. Suppose it were conceded that the plaintiff had no paper title or color of title to the alley, yet if she was in actual • possession of