Dundalk Holding Co. v. Easter

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment in favor of the appellees in an action of ejectment tried before a jury in the Superior Court of Baltimore City. The appeal challenges the action of the court in declining to direct a verdict for the defendants and in overruling a motion for judgment n. o. v. On August 25, 1945 Grace T. Mclver, a sister of Mrs. Easter who was virtually a straw-man for the appellees, conveyed to the Dundalk Holding Company out of a larger tract an unimproved lot fronting on the northwest side of Belair Road. The purchaser erected a motion-picture theatre on the site.

In August 1947 the appellees brought ejectment for the recovery of about one foot of ⁴⁹² land, claiming that the southwest wall of the building encroached upon their adjoining land. By deed dated March 5, 1941, Kohlerman, trustee for the Easter heirs, conveyed to Grace T. Mclver an irregular tract of land fronting on the northwest side of Belair Road, containing about 7.4 acres. The description began at a point on Belair Road 342.45 feet northeasterly from the intersection of the northwest side of Belair Road with the east side of Cedonia Avenue. The fifth line in the description reached “the southwest side of a lot of ground now or formerly belonging to John A. Quick.” After bounding the Quick lot, the ninth line was described as “thence north forty-one degrees forty-three minutes east binding on said [Belair] road six hundred eighty-four and two tenths (684.2) feet to the north eighty-four and one quarter degrees east twenty-five perches line of the land described in the aforesaid deed from John Marx to George W. Easter and wife dated October 10, 1900 * * *”.

On September 22, 1941 Grace T. Mclver conveyed a triangular piece of land at the northeast end of the tract to the Gulf Oil Corporation of Pennsylvania. The description in that deed began at a point on the northwest side of Belair Road “distant twenty-two and twenty-nine one hundredths (22.29) feet southwesterly from the corner formed by the intersection of the northwest side of Belair Road with the southwest side of Fleetwood Avenue fifty feet wide said point of beginning in the southernmost outline of Overlea and running thence binding on the northwest side of Belair Road south forty-one degrees and forty-three minutes west one hundred feet * * *”. The deed from Mclver to the Dundalk Holding Company on August 25, 1945, took its point of beginning “at the distance of one hundred feet southwesterly from the end of the north forty-one degrees forty-three minutes east six hundred eighty-four and two-tenths feet line” of the Kohlerman deed “and at the southernmost corner of a lot of ground described in a deed from Grace T. ⁴⁹³ Mclver to Gulf Oil Corporation of Pennsylvania”, running thence binding on Belair Road two hundred and fifty feet. Subsequently Grace T. Mclver conveyed the remainder of the tract to the appellees.

The point of beginning in the deed to the Dundalk Holding Company is at the end of the ninth line of the Kohlerman deed, which was therein declared to be at the twenty-five perch line of the Marx deed. The witness Pohmer, a qualified surveyor, testified for the appellees that he was able to establish the twenty-five perch line and found that it intersected Belair Road about 686 feet from the northeast boundary of the Quick lot. Measuring 350 feet southwest from this point he found that the theatre building encroached about 1% feet on the Easter tract. The appellants contend that his testimony must be rejected because he admitted the line could not be determined by existing monuments or markers on the ground, that the Marx deed was full of inaccuracies and errors, and that his opinion was largely based upon information contained in City surveys of about 25 years ago that had at that time located a stone called for in the Marx deed.

However, the witness testified that he made a survey on the ground to try to reconcile the discrepancy between the Mclver deed and the City survey, and specially referred to a “possession boundary marker found in place on the site of the old Belair Road”. He also testified that he established the boundaries of the adjoining Gulf Oil Corporation lot. The deed to the Dundalk Holding Company not only calls for a point of beginning 100 feet from the 25 perch line above mentioned but at the southernmost corner of the Gulf Oil Corporation lot. The description in the latter deed has its point of beginning 22.29 feet from the corner formed by the intersection of the northwest side of Belair Road with the southwest side of Fleetwood Avenue.

It was shown that this corner was established by the City when Belair Road was widened and the curbing put in. The original City plat was produced. Moreover, the witness Tustin, a partner in the firm of ⁴⁹⁴ Martenet and Co., testified for the appellees that he verified on the ground the survey made by his partner Sutton, who prepared the description for the Gulf Oil Corporation deed. It was permissible