Marvil Package Co. v. Ginther

²¹⁶ Adkins, I., delivered the opinion of the Court. This is a suit in trespass q. c. f. in which the appellee was plaintiff and the appellant defendant. It grew out of a dispute as to the northern line of the property claimed by plaintiff. The alleged trespass was the cutting of certain trees on property claimed by plaintiff as a part of a farm owned by him known as the “Milbourn Farm.” Defendant admitted the cutting of the trees, and their value was agreed upon, but defendant denied that said trees were within plaintiff’s lines.

On petition of plaintiff the trial court ordered a warrant of resurvey to issue. This appeal is from a judgment entered on a verdict in favor of plaintiff. There are forty-two bills of exception, all of which are to rulings on evidence, except the last, which was to the ruling on the prayers. The most important exception is the thirty-first, and the question embraced therein arose as follows: To prove the trae boundaries of the Milbourn Farm, defendant offered its “Exhibit 14,” a certified extract from the return of the commissioners to divide the real estate of Boland Bevans, in a proceeding in the Circuit Court for Worcester County, in which the Milbourn Farm was laid off and described by courses and distances.

This proceeding was in the year- 1850. Plaintiff objected to all parts of the return of said commissioners “which refers to the Milbourn Farm,” and the objection was sustained. To understand the importance of that evidence in this case, it is necessary to review the history of this farm and of that known as “The Old Bevans Place,” which was also a part of the property of Boland Bevans included in said return, but not described by courses and distances. According to said return the Milbourn Farm contained 195% acres and the Old Bevans Place (composed of two tracts called “Warwick” and “Milton” or “Mitten”) contained two hundred acres.

B'oth of these farms came into the possession of Elizabeth S. Townsend, and were devised in her will by their respective names to her sons Irving S. Townsend and John Glenn Townsend, respectively, with certain contingent remainders which need not be considered here. ²¹⁷ In January, 1906, Irving S. Townsend entered into a written contract of sale of the Milboum Farm with Peter Ginther, brother of plaintiff, which was sought to be specifically enforce by Irving’s executor, Thomas P. Townsend. That case came to this court on appeal, and is reported in 114 Md. 122 . It was there held that Ginther could not bo compelled to take the property, because the Milboum Farm as surveyed by Levin H. Hall did not contain all that Irving S. Townsend thought and represented it to contain. And the shortage appears to have been exactly the strip of land now in controversy, on which the alleged trespass occurred.

Subsequently, in 1913, three years after that case was decided, the surveyor Hall, at the request, he says, of Mr. Myers, made another survey in which he included the missing strip, but he did not do this by the lines of any deed or previous grant. His testimony as to how he accomplished it is as follows: “Well, I was asked by Mr. George Myers to go and make the survey. I told him I would go, asked him where the papers were, and he said he did not have any. I went up there in March, somewhere near the middle, 1913.” Those present, he said, were, “James Tull, James Carder, Isaac Webb and James Burke, oh Byrd, and I remember outside a man with us by the name of Sam Moore.

These were the ones that pointed out the line.” “And the circumstances, I asked them what they wanted me to do, and they told me that they wanted me to survey this certain piece of land, and I asked them for the papers and they said they did not have any; but they did show it to me one of these men, I don’t know which one. They would go ahead and put the stake down for me to survey by and we did this until we inclosed the pieces of land,” etc. In other words, the surveyor simply put the lines where he was told to. He does not know even which one of the men pointed out the line, nor how he was able to do so. It may well be that he or they had heard Irving S. Townsend say that was his boundary.

But we have the surveyor, Hall, testifying in the case referred to, that the survey in that case was made from papers furnished him by the same Mr. Townsend, and that he told him the ²¹⁸ farm should contain about 195 acres, and that after that survey was made “Mr. Townsend said he thought it was correct; that he did not know the lines positively, but thought the farm was of a larger circumference.” So if these men who pointed out the northerly line, by which the later survey was made, got their information from Mr. Townsend, they were giving information which Mr. Townsend himself admitted was probably incorrect in view of the result of the survey made by Hall in that case. Townsend apparently was not claiming anything outside the lines shown by the title papers which he furnished Hall. He was simply mistaken as to how far his line really extended under those papers. However that may be, the Milbourn Farm was conveyed to Peter Ginther in 1913 by the widow and executor of Irving S. Townsend according to this later made-to-order survey of Hall, and was devised by Peter Ginther, who died in 1925, to his brother, Jacob Ginther, plaintiff in the present case.

The old Bevans place was conveyed by John G-lenn Townsend and wife to the defendant on February 4th, 1921. The deed purported to convey 200 acres of land, more or less. And defendant contends that the deed included the parcel of land here in controversy. The title papers excluded by the ruling in this exception contained the only complete description by courses and distances of the “Milbourn Famn,” and therein lies its importance, especially when it is recalled that the decision in Ginther v. Townsend, supra, was based on the survey made from these papers at the instance of Irving S. Townsend, who acknowledged this survey to be correct.

It does not appear from the record why this evidence was excluded, but it is contended by appellee that it was properly excluded because, he says: (a) The chain of- title (other than said proceedings) of what the defendant claims as the Milbourn farm, was not in its list of title papers filed with the surveyor, and the defendant does not attempt to show that the land referred to in said return as the Milbourn Farm was ever acquired by Elizabeh Townsend as such. ²¹⁹ (b) There was no location, on the plat filed with the surveyor’s return, of that part of the return of the commissioners which refers to the Milbourn Earm, and the defendant did not counter-locate said farm on the plat. As to the first reason assigned, those proceedings were listed with the surveyor and they themselves show that Teagle Townsend, the husband of Elizabeth, elected to take in right of his wife, who was the oldest child, and therefore had the right of election, all the property including the Milbourn Earm, and deeds from him to John E. JjeOompte, and from LeCompte to Elizabeth Townsend conveying said property, were offered and admitted in evidence without objection before the offer of the return of the commissioners. As to the second reason, since the Act of 1852, chapter 177 (Code, art. 75, sec. 90), a location maybe controverted without any counter-location. 2 Poe, Pl. &. Pr., sec. 477.

Besides, it is perfectly apparent from a comparison of the plat returned by the surveyor with the plat in the said proceedings that there was in fact a counter-location. This was omitted from the surveyor’s explanations, but there does not appear in the record any other source of the dotted line on his plat, which represents the northern boundary of Milbourn Earm according to the defendant’s claim, than the plat of said farm in said proceedings. Again, it is more than questionable whether the plat returned by the surveyor could have been used for any purpose except for illustration. The testimony taken by him was not returned in writing nor does it appear that the witnesses testified under oath.

And there is no reference in his return to any location made at the instance of the defendant, although it appears from the stipulation of counsel that certain lines on the plat represent defendant’s pretensions. For requisites of a valid execution and return of a warrant of re-stirvey, see 2 Poe, Pl. & Pr., secs. 474, 476. Where plats are authorized for illustration, the strict rules of practice where defence is taken on warrant do not apply. New York, P. &, N. R. Co. v. Jones, 94 Md., at p. 33.

Our conclusion is that there was reversible error in the ruling on the thirty-first exception. ²²⁰ • It is impracticable and unnecessary to consider at length, the numerous exceptions in this case. If the plat was to be used for illustration only, there was no objection to permitting the surveyor, Pitts, to testify that the lines of plaintiff’s pretensions were protracted to conform to' those in the plat accompanying the deed to Peter Ginther. This ruling was the subject of the first exception. In the second, third, fourth, fifth, and sixth bills of exceptions, Jacob Ginther was permitted to testify as to statements made by one Filmore Evans, who formerly owned adjoining property, in regard to a stone at a line he said was a northern boundary of Milboum farm.

This stone^ he said, was also a boundary stone between the Dryden property and the Evans property. It does not appear how Evans got this information or that he was testifying as to' general reputation. Testimony of neighbors as to reputation in regard to boundaries may be received when no better evidence is obtainable (Medley v. Williams, 7 G. & J. 67 ), or as to actual knowledge by them of the authorized placing of boundary stones, etc. But this sort of testimony should be carefully guarded; and the mere statement of a neighbor that a given line or stone is a boundary should not be admitted without some satisfactory explanation. of the source of his information. The objection to these questions should have been sustained.

On the seventh exception the objection was to permitting Levin H. Hall, surveyor, to answer the question, “How do'es the northerly line on Mr. Pitts’ plat correspond with the northerly line that you ran on the plat with the Peter Ginther deed?” This refers to a survey made by Hall in 1913, to which reference has already been made.