Hatch v. Pendergast

Tuck, J., delivered the opinion of this court. The appellee sued the appellant to recover damages for ²⁵⁸ removing bis fruits, and other articles, from a street-stand iri the Lexington market, in the citjr of Baltimore; the defendant,- at the time, being the clerk of the market, and having authority, under the ordinances of the city, to remove the party if he was not entitled to the use of the stand. . There was evidence to show that Pendergast, a huckster, had occupied a stand for eighteen or twenty years, and he produced at the trial certificates that he had paid for stand No. 12, for the years from May 1853 to May 1856, and from May 1856 to May 1857, the last of which was given by Hatch, as clerk of the market; the acts complained of having occurred in June 1856. There was also evidence that one Little held stand No. 1, in the rear of Pendergast’s, under like certificates from the market clerks, and that tire articles were removed from his stand, and not from that of the plaintiff.

Whether this was true or not was to be ascertained by the jury, from the conflicting evidence in the cause; the uncertainty arising, as we suppose, not from any want of confidence in the witnesses, but of definiteness as to the local limits of these stands, which, as the record shows, were not marked or bounded on the pavement. The appellee claimed the use of the particular place as within the stand which the nar. avers he had rented from the city of Baltimore: the appellant, in defence, relied upon the ordinance regulating markets, and the authority thereby conferred on the clerks of markets; Rev. Ord., 1850, No. 26. Hence we see that the plaintiff, to recover, must show his right to occupy the locus in quo, and, for that purpose, reliance is placed upon the certificate granted by the appellant to the appellee in May 1856, and the use of the stand for eighteen or twenty years previously to the acts complained of. Upon the claim by possession, we may remark, that title to a market stand cannot be acquired in that way.

The ordinance providés the mode of renting such stands, and expressly authorises and directs the clerks, ‘‘to remove and drive off every person using or occupying any stall, bench or stand, in any of the markets, contrary to the true intent and meaning thereof,” Sec. 44. Every seller must be considered as hold- ²⁵⁹ log his stand by contract with the city, subject to the market regulations, and not adversely to its authority. The first prayer tendered by the defendant, and refused, asserts that the certificate offered by the plaintiff did not vest in him a title to the stand therein mentioned. The solution of this proposition depends on the interpretation of the ordinance, and the character we are to give the paper.

The 41st section, provides for licenses to be issued with the approval of the Mayor, on payment therefor of five dollars: but, to prevent loss to the city by failure of persons to