Clary v. Kimmell

Goldsborough, J., delivered the opinion of this court. An action of trespass for breaking and entering the closes of the plaintiff, now appellant, and cutting down his trees, resulted in the appeal which becomes the subject-for our consideration. The plaintiff declared for a trespass on a tract of land, formerly called ííCulloden,” now called “'Partnership,” and one other close, called the resuryey on, “Drummine,” in Frederick county. The defendant pleaded not guilty, and took defence on warrant.

A warrant of resurvey was issued, and locations were made for both the plaintiff and defendant. At a subsequent term, the plaintiff obtained leave to amend the pleadings and plats. He then declared anew for trespass committed upon his closes, “Friendship,” and “Dispute Continued,” and “Partnership.” The defendant again pleaded not guilty, and took defence on warrant. A second warrant of resurvey was issued, by virtue of which the plats were amended, and returned with the certificate of the sheriff and surveyor, but no table of explanations. ²⁵⁴ At the trial of the cause, the plaintiff proposed to offer in evidence, and to establish the locus in quo in which the alleged trespass was committed, a patent for a tract of land called “Friendship,” to which patent, as offered in evidence, the defendant objected as inadmissible, on the ground that it was not properly located on the plats, in this, that it did not appear from said plqts, or any explanations of the sheriff or surveyor accompanying the plats, that the said patent had been located according jo the courses and distances mentioned and contained therein!

There is, therefore, nothing to show to the court, that tli'e lines of the patent, when correctly laid down, would run in the manner delineated on the plats. We consider it well established, by a uniform current of authorities prior to the Act of 1852, ch. 177, that where a plaintiff in ejectment or trespass quare clausum fregit, made a location, and the defendant did not counter-locate, the plaintiff’s location was held to be admitted, and, under- these decisions, the plaintiff would be entitled to recover. But, by the 8th section of the above