Koch v. Maryland Coal Co.

Miller, J., delivered the opinion of the Court. This action of trespass guare clausum, fregit was brought by the appellant's against the appellee. The trespass complained of consisted in mining coal on part of a tract of land called “ Republic.” Title to the locus in quo was claimed by the plaintiffs under the patent for Republic,” ¹²⁹ and by the defendant under a patent for a tract called “ Mount Pisgah.” Defence on warrant was taken, under which locations were made by both parties and plats returned by the surveyor. At the trial after the evidence on both sides was closed, the plaintiffs asked for two and the defendant for seven instructions to the jury.

The Court granted both of those asked by the plaintiffs and also the first, second, third, fifth, and sixth of those asked by the defendant, and rejected its fourth and seventh. The plaintiffs excepted .to the granting of the defendant’s prayers, and specially objected to the first, second, and third upon the grounds that there was no evidence to sustain them, that they assumed facts, and submitted questions of law to the jury. The verdict was for the defendant and the plaintiffs have appealed. The defendant’s second prayer places its defence entirely upon paper title, and tells the jury that if they find the issual of the warrant and patent for “ Mount Pisgah,” and the mesne conveyances and facts as to the derivation of title thereto to the defendant, then their verdict must be for the defendant.

The first and third also set up title by possession in the defendant and those under whom they claim, but it is needless to consider them if we hold that the defendant’s paper title is better than that of the plaintiffs, because the latter rely upon their paper title derived under the patent for “ Republic,” and have offered no evidence tending to show that they ever acquired title to the locus in quo by possession. The whole controversy therefore .depends upon whether the Court was right in granting this second prayer. It has been argued by counsel for the appellants that this prayer is defective because it assumes that the defendant’s location of the place of the trespass as within the lines of “ Mount Pisgah ” is correct. This would be a serious objection to the prayer if the plaintiffs had not themselves ¹³⁰ proved and admitted the correctness of this location, and if we could see from the record that there was any dispute upon this point.

But the exception shows that the plaintiffs, after offering in evidence their title papers, gave evidence tending to prove that they were correctly located on the plats, and that the defendant had mined coal within the lines of their part of “ Republic ” as so located, “ [all of said places of alleged trespass being also within the lines of defendant’s tract called “ Mount Pisgah” as located by it, and where the two said tracts lie foul of each other as located on the plats,”] and then rested their case." What is thus stated in brackets was part of the plaintiffs’ own proof, and is a clear admission by them, that the lines of the two tracts were “ foul of each other,” at the place of the alleged trespass. The only other reference to locations found in the exception is, that the defendant offered evidence tending to prove that all its title papers were correctly located on the plats. From all this it seems to us to he very clear that there was no controversy about the correctness - of the locations on both sides, and the plaintiffs cannot object to this prayer on the ground that it assumes a fact which they themselves had proved and admitted to be" true. The question then is, which is the superior title, that derived under the patent for “Republic,” or that derived under the patent for “ Mount Pisgah ? ” The patent for “Republic” bears date the 5th of September, 1796, but purports to have been granted on a certificate of resurvey made and returned to the Land Office on the 10th of March, 1794.

The patent of “Mount Pisgah” is dated the 15th of July, 1795, but the certificate on which it was granted was not made and returned into the Land Office, until the 29th of September, 1794, more than six months after the return of the certificate of “ Republic.” In this state of facts the appellants contend that the title under their patent relates back to the date of their certifi ¹³¹ cate, which is older than that for “