Lake Roland Elevated Ry. Co. v. Frick

Bryan, J., delivered the opinion of the Court. The present is one of the many actions which have been brought to recover damages caused by the construction of the elevated railway structure belonging to the appellant. Robert Garrett brought the action in his lifetime; and after his death his executors became parties plaintiff. The j udgment having been rendered in favor of the plaintiffs, an appeal was taken by the defendant.

Garrett was the owner of a lot of ground fronting on the west side of North street. The elevated structure of the defendant was in front of a portion of this lot, and was alleged to injure the property and diminish its value. A particular description of the lot and the structure is not considered necessary, as they are fully described in the opinions deliv ²⁶⁹ ered in the equity suit brought by Garrett against the defendant, and reported in 79 Maryland. At the trial a demurrer was filed to the declaration as it was amended after the executors were made parties.

It was contended that the executors had no right of action for injuries done to the real estate in the lifetime of the testator. We think that if this question were ever debatable, it must be considered as settled in this State. Kennerly's case, 1st Maryland, 107; Same case, 2 Maryland, 245 ; Barton Coal Company's case, 39 Maryland, 1 . Testimony was offered by the plaintiffs tending to show that the lot was damaged by the construction of the elevated crossing.

Albert L. Gorter testified that he knew the market value of the lot before the railroad was built, and its market value after it was built; and that before the building of the road it was worth more than fifty-two thousand dollars ; and that after it was built the value was fifteen thousand less ; that the lot was damaged to this extent by the railroad. He was then asked the following question : “ Q. Assuming the value of the lot after the construction of the railway, the value of the property to have been $37,066.67, what, in your opinion, would have been its value in 1894, if there were no elevated structure in front of it? A. $15,000 more.” Defendant objected, and its objection being overruled, took an exception. The evidence seems to be merely the statement in another form of the estimate which the witness had already made.

The plaintiffs offered other evidence tending to show that the lot had been greatly injured by the construction of the elevated crossing in front of it; and that a general rise in the value of property in the neighborhood had taken place since the building of the road; that it was not owing to the existence of the road, but to other causes operating at the same time. The defendant produced certified copies of certain deeds, and tendered them in evidence for the purpose of showing for what price the property was sold which was therein described. On objection by the plaintiffs the Court ²⁷⁰ rejected the evidence and the defendant excepted. These certified copies are evidence that the grantors validly conveyed to the grantees the property therein described.

In other words there are evidence of every circumstance necessary to make the deeds valid conveyances. As between the parties the acknowledgements of the payment of the considerations are evidence that they were actually paid. And if the deeds should be attacked for fraud in a suit at law or in equity we may concede (for the sake of the argument) that the parties alleging that the considerations were not paid would be obliged to sustain the charge by proof. And that the presumption of innocence would apply in favor of the party charged with fraud, and that the onus of proof would rest upon his assailant.

But as between parties in no way connected with the deed, the statement by the grantor that he had received so much money would be res inter alios acta; it would be hearsay pure and simple. A statement made by a stranger that he had concluded a transaction with another stranger can have no binding effect upon third persons ; it .is certainly not entitled to be received as evidence without the sanction of an oath made by some witness acquainted with the fact. In Lloyd v. Lynch, 28 Pennsylvania State R. 424, the Court, speaking of an acknowledgement of the payment of the consideration contained in a deed, as it affected strangers to the instrument, said : “ Against them, it is nothing but hearsay. It is a mere ex parte declaration not under oath, taken without any opportunity to cross-examine.

It has long been settled that such declarations are not evidence against strangers.” Mr. A. R. White was called by defendant as a witness to prove the character and condition of the neighborhood and property on North street between Centre and Saratoga, now facing the main structure of the defendant, as they existed before the structure was built and its present character and condition ; and also to show the character and condition of the improvements between Saratoga and Lexington street's opposite the southern inclined approach to the elevated struc ²⁷¹ ture ; the defendant offering to follow up this testimony by proof that the southern inclined approach is practically a counterpart of the northern approach. The testimony was rejected and the defendant took an exception. We will consider these questions, although the exception is not taken in such manner as