Carroll's Lessee v. Granite Manufacturing Co.

Bartol, J., delivered the opinion of this court. The record in this case presents for our consideration two questions of evidence; these form the subject of the first, second, and third bills of exceptions. In the first and third exceptions, the plaintiff offered to prove by William Dawson and by George Ellicott, that when the foundations of the granite factory were being dug, they informed Lansdale, the agent of the manufacturing company, and the workmen engaged in digging, that they were over their lines and on Mr. Carroll’s land; both the witnesses stated that they were not Carroll’s agents, nor authorised by him to make such statement. In our opinion this evidence was properly rejected by the court.

It was the declarations of third parties, strangers to the matter, and mere volunteers; and the evidence, if admitted, could not in any manner properly affect the issues in the cause, and was therefore properly rejected as irrelevant. The second exception is taken to the ruling of the circuit court, in sustaining the defendants’ objection to a question propounded by the plaintiff to the witness, Evan T. Ellicott. The witness was called upon to state “where the coke oven stood, and what was its character and condition ?” He was clearly imcompelent to prove the location of the “coke oven,” because it does not appear from the plats and explanations, that he had pointed out to the surveyor the object located, as to which he was called to testify.” Mitchell vs. Mitchell, 8 Gill, 102 . See Dorsey on Ejectment, 62.

But it is contended by the appellant, that it was competent for the witness to testify as to the character and condition of the coke oven, and that a part of the question being legal, it was error to sustain the objection. In Whiteford vs. Burckmyer & Adams, 1 Gill, 140 , the court say: “Nor do we think, where a question is proposed ⁴⁰⁸ to be asked of a witness, which involves several distinct members, the courtis bound to select from it such members as might be admissible, if unaccompanied by others with which it is . connected, and say that such particular portions of the testimony are proper.” We concur in that opinion, and think that the court, when called on to determine the legality of a question propounded to a witness under oral examination, must decide upon it in its entirety. The obligation rests upon the counsel propounding the question, to show that it is free from legal objection, and the onus does not rest either upon the court or the party objecting, to separate that part of it which may be legal from that which is illegal. After evidence has been admitted, and an application is made to the court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion of the evidence which is illegal.

And the same rule applies when an offer is made of a mass of evidence, complex in its character, and the whole of it is objected to. In such case, if any part of it be admissible, it is error to exclude the whole. This principle is established by the case of Budd vs. Brooke, 3 Gill, 220 . See Waters vs. Dashiell, 1 Md. Rep., 455 .

Without expressing any opinion, therefore, as to the legality of any part of the question propounded to the witness, it is sufficient for the purposes of the exception to say, that a part of it being illegal, it was properly overruled by tire circuit court. This brings us to the questions raised by the prayers, and presented in the 4th, 5th and 6th bills of exceptions. These involve the construction of the third exception, or reservation in ■ the deed under which the plaintiff claims, which is in these words: “ Thirdly,, saving and excepting a small part of the said piece or parcel of land hereinbefore firstly conveyed, upon which the rolling mill improvements now in part stand.” It is a concession in the cause, and the proof shows, that the piece of land in dispute is embraced within the’ lines of the property conveyed to the plaintiff, and unless it is covered by the exception, the plaintiff is entitled to recover. ⁴⁰⁹ 'The land excepted is “a small part” (of the piece or parcel firstly conveyed,) “upon which the rolling mill improvements now in part stand.” There is evidence in the cause that there were three mills, which, were separate structures standing several feet apart, the most northern of these was the rolling mill proper, in which alone the rolling of iron was performed, the others were the puddling mill and the slitting mill, and the whole together were commonly called The Rolling Mills. The rolling mill proper, stood in part upon the land covered by the plaintiff’s deed, on the small triangular piece designated on the plat by the letters ABC.

This piece of ground is conceded by the plaintiff to be within the exception, and on ilia part it is contended, that by the true construction of the clause, its intent is thereby fully gratified, and that the defendant cannot claim any other piece as within the exception; Fust, because only one piece is excepted; and secondly, because the exception is confined to the part, whereon the building itself, called the rolling mill was erected. Neither of these positions is sound. The exception is not of one piece of ground, but it is of a part of what had before been