Jacobs v. Disharoon

Thomas, J., delivered the opinion of the Court. This is an action of trespass. The narr. alleges that the defendant broke and entered certain lands of the plaintiff in Worcester County, Maryland, and depastured the same with cattle, etc., and the case was tried on the issue joined on the jilea of “did not commit the wrong alleged.” There are five exceptions in the record, the first four to the rulings of the Court on the evidence, and the fifth to the granting of a prayer, at the conclusion of plaintiff’s testimony, instructing the jury that under the pleadings and evidence there was no legally sufficient evidence in the case to entitle the plaintiff to recover. The evidence shows that Henry Jones, who was the owner of a tract of land in Worcester County, agreed, in 1873, to sell the plaintiff, for fifty dollars, one acre of land.

He, the plaintiff and a surveyor, George R. Marshall, accordingly went on the land, which was then in woods, to lay off the lot. The following plat was made by agreement of counsel, and offered in evidence “to be used for illustration on the trial:” ^{95 96} Mr. Jones measured seventy-four yards along the wood road, called on the plat “Marshall Road,” from 1 to 4 on the plat, told Mr. Marshall that it was ninety yards by straight line to the Bennum land, and aske'd him to calculate how long the line along the Bennum line, measured from the corner marked 2 on the plat, would have to be to make the acre. Mr. Marshall made the calculation and told him that thirty-four yards along the Bennum line would make a fraction over an acre, and they then measured it- off and put stakes down. Mr. Jones then looked at it as it had been laid off, and said' he did not like the shape of the lot, that it was too narrow on the back, along the Bennum line, and that he could “take a piece off the front and put piece on in place of it on the back.” He then took seven feet off of the front line, along the Marshall road, that is, from 4 to R. on the plat, and extended the thirty-four yard line along the Bennum line, from 3 to 5 on the plat.

Mr. Marshall told him that that would make more than one acre, and he said “never mind,” he would, “put that to it for the piece I took off the front.” Mr. Marshall asked him who he was going to get to write the deed, and he told him “Major G. Holland, J. B.” Mr. Marshall then told him that he would have to tell him about the extension of the line from 3 to 5, in order that he could write the deed accordingly, and he said he would “tell Guy about it.” The evidence further shows that the plaintiff, who cannot read, drove stakes down according to the location agreed upon, immediately took possession of the lot, and within a year from the date they measured and located it, cut the wood off of it, built his house and enclosed the lot, erecting a fence along the line, from 5 to R. on the plat, between the lot and Mr. Jones’ land, now owned by Ambrose Rowley. The deed from Mr. J ones and his wife to tñe plaintiff was executed January 13th, 1873, and recorded February 18th, 1873, and the evidence is also clear that from the year ho purchased it the plaintiff was in actual, visible, uninterrupted and exclusive possession of the lot as enclosed, cultivating it. ⁹⁷ paying the taxes and asserting claim to it for nearly twenty-three years before Mr. Jones’ death and down to the time of the alleged trespass. After Mr. Jones’ death his land was sold to the appellee. In 1903 the appellee sold the Ambrose Rowley lot.

This lot was surveyed for the appellee by William H. Schoolfield', county surveyor for Worcester County, who made the plat in this case, and who ran the line of the Ambrose Rowley lot from 5 to R. on the plat according to the fence erected on that line, between plaintiff’s lot and the balance of Mr. Jones’ land, and the deed from the appellee to Ambrose Rowley was made according to that survey. The County Surveyor says that when he made the first survey for the defendant he ran the Ambrose Rowley lot “entirely by • enclosure.” He states further, “there was a fence commencing at red letter R. on the Marshall road and on the plat and running in a right line to black figure 5, and this fence he ran by as a line of the Ambrose Rowley lot. That he subsequently made another survey of the plaintiff’s and Ambrose Rowley and Mary Rowley lot for the defendant, and ran the deed from Henry and Jane Jones to the plaintiff and found that the third line of that deed' terminated on the Marshall road at red figure 4, enclosing a triangle between the lines drawn from red letter R. to red letter B. and to red figure 4 and back to red letter R., at which last point he found a post. He found the distance from the post at red letter R. to Ho. 4 red figure 4 was seven feet.” After the second survey by the County Surveyor the defendant entered upon the land between figures 3 and 5 on the plat, tore down plaintiff’s fence along the line between figure 5 and letter R. on the plat, and, the plaintiff says, “destroyed what vegetables I had planted there at the time.” The defense in this case is based entirely on the cases of Walsh v. McIntyre, 68 Md. 402 , and Waltemeyer v. Baughman, 63 Md. 200 , hut the principle applied in those cases does not apply to the facts in this case.

In Walsh Case the Court said: “It is certainly not the law in Maryland, that a party can acquire title, which is maintainable at law, by ⁹⁸ parol gift followed by actual possession, no matter how long and exclusively continued. * * * Here there was no apparent title; there was bare occupancy and nothing more, except the claim in 1869, that David Schriver had given the property to the appellee by parol, and she had entered under this authority in pursuance of the gift.” In Waltemeyer’s Case the Court held that where possession is taken by permission of the owner, it cannot become adverse without notice to the owner that possession is continued under claim of right. In the ease at bar the appellant did not take possession by permission of Mr. Jones, or hold the property under a parol gift, but he took possession of it in the assertion of his right to the property against Mr. Jones and claiming under his purchase and deed. Uor is this case like the