Maryland Coal & Realty Co. v. Eckhart

Lowe, J., delivered the opinion of the Court. That “any person may obtain a patent for vacant land” from the State may come as a surprise in this day and time. 1 The authority is the vestige of a thriving real estate business conducted centuries ago and inherited from our British ⁶⁰⁷ progenitors. As recently as 1972 the Maryland General Assembly completely revised the land patent procedures “to provide a simple and convenient method for obtaining such patents.” Laws of Md. 1972, Ch. 349. The State’s authority to patent lands derives from its sovereign heritage.

In 1631 the royal charter of Charles I granting what is now Maryland to George, Lord Baron of Baltimore, “authorized [him] to create manors, with courts baron and all things appertaining to them, with views of frank-pledge, etc. Charter of Md. sec. V, XVIII and XIX.” J. Brewer and L. Mayer, Land Office in Maryland (1871) at 1. Maryland was then in the nature of a grand-fief or honor, held by tenure of “free and common socage” 2 whereupon the Lord Baltimore presented “to the King two Indian arrows annually” in petit serjeanty2 and “the power of sub-infeudation was expressly conferred.” Matthews v. Ward, 10 G. & J. 443 . This power was exercised by the different “Lords Proprietary,” the sale and leases of their land forming the principal portion of their resources.

Consequently beginning around 1680 the Land Office became the principal office of the Province. See generally Kilty, The Landholder’s Assistant, (1808). 3 ⁶⁰⁸ The first formal instructions given by the Lord Proprietor to his Land Council in 1684 substantially remain the basic procedure for petitioning vacant land by warrant of survey or contiguous vacant land by warrant of resurvey. Md. Code, Art. 21, Title 13, Land Patents (now Real Property Article, Title 13). Brewer and Mayer, supra, said at 2-3: “ ‘ The Land Council is first authorized to give, grant, lease or otherwise dispose of all land escheatable for want of heirs.

Any error made by surveyor or clerk in certificate or patent, to be corrected, rectified and amended, as the case shall require. ‘Any person owning two or three or more tracts of land contiguous or adjoining, upon application the Land Council may grant special warrant to resurvey or to lay out the same into one entire tract and grant patent for the same. ‘May grant land of an alien, not naturalized, that may escheat to the Proprietary. ‘Where it hath been discovered or made known to the Land Council that any grant hath been illegally or surreptitiously obtained, the Land Council are required to order scire facias to issue forth out of the Chancery Court of Records to the patentee or other present owner and possessor, to show cause why the same should not be vacated. ‘Should the Land be adjudged and condemned to the Proprietary for the reasons aforesaid, then the Land Council may, by letters patent or otherwise, give, grant or dispose of the same to the discoverer thereof. ‘The Land Council may, upon the death of the Surveyor-General, extend or continue any special warrant or warrants of re-survey. ‘They cannot grant any patent for any tract of land that is part or parcel of a greater tract formerly granted. ⁶⁰⁹ ‘Authority is given to the Land Council to sign all patents legally obtained and affix the great seal.’ ” For full instructions see Kilty, supra, at 112-117. The process survived the Revolution as evidenced by Chapter 15 of the Act of General Assembly, April Session, 1777. This Act manifested the legislative intent that the business of the Lord Proprietor’s Land Office, in respect to lands not yet granted, be assumed by and carried on under the authority of the State, rather than the Proprietary. The importance of the land office was further enhanced by the Acts of Assembly, Laws of Md., October Session, 1780, Chs. 45, 49 and 51, whereby all property of British subjects was declared confiscated for use by the State.

Although the land office was divided to accommodate the citizenry by an office and Registers on each side of the bay, the judge of the Land Office on the Western Shore was, from a very early period, the Chancellor of the State. Following the adoption of the Constitution of Maryland in 1850, a more explicit and comprehensive procedure was enacted under the administration of Governor Enoch Louis Lowe. 4 It expressly authorized the Commissioner of the Land Office to issue patents for lands, especially those lands confiscated from British subjects. Included, presumably, was Sir Robert Eden who, as Governor of the Province, was the last representative of the Lord Proprietary when the differences with Great Britain culminated in the act of formal separation by the Colonies, declaring themselves to be independent states. The Procedure Although the procedural particulars have been changed from time to time, the general procedure, sufficient for our purposes here, has not. “The land office has always been, as ⁶¹⁰ it now is, the general market in which all public lands have been offered for sale; and into which any one capable of holding real estate might come and purchase according to the prescribed rules and terms of sale ....

If the rules of the office were complied with, and the purchase money paid, a grant for the land was issued as of course, otherwise not.” Baltimore v. McKim, (1831) 3 Bland 453 , 455-456. Any person desiring to take up vacant lands would apply to the Commissioner of the Land Office for a warrant of survey or resurvey, directed to the County Surveyor 5 requiring him to survey the vacant land in question. After the surveyor returned the certificate of survey it was required to remain in the Land Office for six months during which time the claim was subject to caveat. If none was filed and the “whole composition or purchase money” has been paid, the applicant or successors in interest was entitled to a patent to the land.

Obviously there were prescribed procedures for public notice required which varied over the years. Once the patent emanated properly signed by the Governor and sealed by the Great Seal of Maryland, no caveat could thereafter be entered. Steyer v. Hoye, 12 G. & J. 202 , (1841). A caveat is the procedure to oppose issuance of a patent by the Land Office.

It serves as a warning to the Commissioner not to put the seal on a patent for a tract of land as prayed. A caveat unheard or unacted upon was permitted to continue no longer than twelve months, Acts of 1797, Ch. 114. The grounds upon which a caveat could be entered included a showing that no grant ought issue because it would be unjust to the public or to some individual. Upon the filing of a caveat the Commissioner would assign the cause for hearing.

Since a patentee could only take subject to all prior claims, encumbrances and equities, the decision on a caveat was not conclusive of the right. Baltimore v. McKim, 3 Bland at 459. ⁶¹¹ For that reason, the general rule of the Land Office in doubtful cases was to let the patent issue, for if it were granted, the question thereafter could be brought before a court of law or equity to vacate the patent. Jones v. Badley, 4 Md. Ch. 167 . However in 1852 a right of appeal from the final decision of the Commissioner of the Land Office was permitted to the Court of Appeals by Chapter 361 of the General Assembly.

In 1853, the Legislature assured the conclusiveness of the Commissioner’s determination by declaring: “That the court of the commissioner of the land office, is hereby erected into and declared henceforth to be a court of record, with the same powers to preserve order, punish contempts and enforce obedience to the proper order and adjudications of the said commissioner, as are now possessed by any court of record of this State.” Laws of Md., 1853, Ch. 415. He That Hath Land, Hath Warre at Hand 6 To avoid the confusion of multiple praenominae by tracing title to the land in dispute, we will adopt the procedure of using “appellant” and “appellee” to include their predecessors in interest when appropriate. For those more precisely inclined we have appended our title notes grudgingly extracted from the record. It would appear that in 1809 appellee patented two claims of vacant land — “Hope in Prospect” and “Stoney Bottom,” part of which was contiguous to the then vacant land which is now in contention.

In 1839 appellant patented a tract of over 4000 acres which appears to have included the land in question and which appellant entitled “Mark Amended.” The 1839 patent was not introduced as evidence in this case but was subsequently offered as “newly discovered evidence” in a Motion for New Trial. Appellant’s patentee, however, was ⁶¹² referred to in the “being” clause of deeds dated 1852 which were introduced below by appellant as the source of its title. Motion for New Trial on the ground of the “newly discovered” patent was denied by the chancellor below, which denial is contended by appellant as an abuse of his discretion. In 1848, four years prior to appellant’s deeds, appellee applied for a warrant of resurvey which proposed to encompass all of “Hope in Prospect” and “Stoney Bottom” consisting of 369 acres which had been acquired in 1809, and the adjacent “vacant” land consisting in itself of 776 acres.

The newly formed tract was to be called “Gerrard.” That patent petition was all but concluded when the petitioner died. He had paid the “whole composition or purchase money,” had been issued the warrant of resurvey, had the certificate filed but died while it lay in the Land Office for six months pursuant to law. The patent was never delivered to him; however, in 1874, in accordance with his daughter’s petition, the patent was ultimately issued to her. There had been intervening caveats by appellant filed in 1868 when the daughter petitioned for the certification, and again in 1870, before she received it, both of which were overruled by the Commissioner of the Land Office.

The caveats were detailed and clearly revealed that their claim was based upon the 1839 patent genesis. Unexplainably, however, when the hearing was set, appellant failed to appear and the Commissioner overruled the caveats for that reason. Appellant also introduced without clarifying testimony patent issued it in 1870 pursuant to a resurvey of the first part of Mark Amended, a portion of the 4,131V2 acre tract acquired in 1839: “In pursuance Whereof, a Resurvey was made, on the First part of the aforesaid tract of Land called “THE MARK AMENDED”, and a certificate thereof returned, when the same was found to contain, with twenty eight and one half acres of vacant land added, the quantity of six hundred and fifty two acres of land, and called “MARK ⁶¹³ AMENDED RESURVEYED”. That the said Cumberland Coal and Iron Company fully compounded for the said vacancy according to law, and since by their deed bearing date the first day of March, 1870, conveyed the said land unto the Consolidated Coal Company, as appears; The State of Maryland doth therefore hereby grant unto the said Consolidated Coal Company, the said land resurveyed as aforesaid, with the vacancy added, reduced into one entire tract, and called “MARK AMENDED RESURVEYED” lying and being in Allegany County aforesaid.” The respective title chains after the 1874 patent issuance are not at issue here, except for descriptive deed references to which we will later allude.

The Issue at Hand The land in question, located on the side of a mountain, is rough, rocky, well forested and underlain with seams of coal. Appellant is a coal company, The Maryland Coal and Realty Company, and the primary appellees 7 are Doctor and Mrs. Jonathan Eckhart. Both parties have made some use of the land over the years but due to its remoteness, they have not come to cross purposes heretofore, save in the 1870’s. One can imagine the chagrin of the appellant which had hired a consulting engineer to make a timber study only to learn from the report that the timber was gone.

Apparently in 1969, without the knowledge of appellant, Dr. Eckhart had contracted with the Curry Lumber Company to cut and remove all timber then “standing and growing on Owners’ [Eckharts’] land located near the village of Clarysville, Allegany County, Maryland. . . .” Its chagrin was aggravated when it became aware that the Eckharts had also sold 60,000 cubic yards of dirt from the tract. This ⁶¹⁴ precipitated round two of the battle for Mark Amended, coming as it did over a century after appellant’s ignominious retreat from the 1870 lists. Appellant sued appellees in trespass and negligence claiming double the value of the timber cut under Md. Code, Art. 66C, § 368, and for the ejectment of Dr. and Mrs. Eckhart who had built their home, and now reside, upon the land in question. The issue was tried before Judge Harold E. Naughton and a jury in the Circuit Court for Allegany County.

Judge Naughton directed a verdict for appellees on the negligence issue and submitted the remainder of the case to the jury on the following issues: “1. Does the Plaintiff, The Maryland Coal and Realty Company, have good paper title to the land in dispute? [No] 2. Do the Defendants, Jonathan J. Eckhart and Sally A. Eckhart and the Gerrard Company, have good paper title to the land in dispute? [Yes] 3. Does the Plaintiff, The Maryland Coal and Realty Company, have title to the land in dispute by adverse possession? [No] 4.

Do the Defendants, Jonathan J. Eckhart and Sally A. Eckhart and the Gerrard Company have title to the land in dispute by adverse possession? [No] l 5. Was the Plaintiff, ;The Maryland Coal and Realty Company, in actual possession of the disputed land at the time of the alleged trespass? [No]” The jury found under question 4 that the Eckharts had not acquired by adverse possession; however, on question 2, the jury found that appellees, the Gerrard Company and the Eckharts, had good paper title. The jury found against appellant on all other issues. An albatross in the wake of every title searcher is the ominous question of whether he has gone back far enough in the chain of title.

The Circe of the trial lawyer is reliance ⁶¹⁵ upon headnotes as the law of a case. Both of these spectres assumed the substance of reality for appellant. It poses to us an even dozen questions: I. Did appellant’s predecessor acquire good title to “Mark Amended” by adverse possession as matter of law and convey the same to appellant by good and sufficient deed?

II

Did appellant’s predecessor acquire title to “Mark Amended” by good and sufficient deeds, which were superior in title to all others claiming an interest in “Mark Amended”?

III

Did the adverse possession of “Mark Amended” by the appellant, and its predecessors in title, bar any. claim to “Mark Amended” of the appellees, under the patent in 1874, issued for “Gerrard”?

IV

Did the Court err in granting Issue No. Four which permitted the Jury to find that the appellees Eckhart and The Gerrard Company had title to the land in dispute by adverse possession? V. Did the deed from Elizabeth Hitchins, et al., to appellees in 1964 contain a legally sufficient description of “Mark Amended” to constitute good paper title?

VI

Did the patent issued to appellees’ predecessors in 1874 contain a legally sufficient description of “Mark Amended” to constitute good paper title?

VII

Should the Trial Court have entered judment as a matter of law in favor of the appellant and against appellees in the amount of $50,703.20?

VIII

Did the Trial Court err in submitting the case to the Jury? ⁶¹⁶ IX. Did the Trial Court err in granting appellees’ First Instruction to the Jury? X. Did the Trial Court err in instructing the Jury with regard to constructive possession of the land in dispute?

XI

Should the Trial Court have granted appellant’s Motion for Trial before the Court without a Jury?

XII

Should the Trial Court have granted a new Trial on the ground of Newly Discovered Evidence? Paper Title Newly Discovered Evidence By means of the contention that its motion for new trial on grounds of newly discovered evidence was erroneously denied, appellant brings to our attention an 1839 patent purportedly for the land in dispute, which if authenticated and introduced at the trial would have, according to appellant* given title by prior claim. This would have been so, one might argue, because prior to the right of appeal granted in 1852 and the establishment of the Land Office as a court of record in 1853 the appellee’s 1848 patent was not conclusive because the “patentee could only take subject to all prior claims, encumbrances and equities.” Baltimore v. McKim, 3 Bland at 459. Accepting that principle for argument’s sake, the trial court did not have before it that 1839 patent.

Appellant informs us that it was discovered in. its large vault several days after the trial and promptly verified in the Annapolis “Hall of Records” office. Appellant argues that “the failure to discover this patent was not due to any lack of diligence on its part...” because “no reference to any such patent was contained in the Land Records of Allegany County and it was purely by accident that appellant discovered a copy of the same in its vault which contained hundreds of documents of all types.” The grant or refusal of a new trial is a matter of discretion with the trial judge which discretion is “not reversible on ⁶¹⁷ appeal, at least when the trial court fairly exercised its discretion.” Leitch v. Anne Arundel County, 248 Md. 611 ; Murphy v. Bd. of Co. Comm., 13 Md. App. 497, 513 . When such a motion is made on the grounds of newly discovered evidence that evidence must not have been “previously discoverable by due diligence.” Wash., Balt. & Annap. Elec.

R.R. Co. v. Kimmey, 141 Md. 243 ; 58 Am. Jur. 2d, New Trial § 168; J. Poe, 2 Pleading and Practice at Law, (Tiffany ed.), § 338 at 323. Faced with the accidental discovery in its own vault appellant could hardly claim due diligence. Beyond that, two of the three 1852 deeds which appellant introduced contained “being” clauses referring to George Peter, who, according to appellant’s argument, was the patentee in 1839.

The failure to follow that lead to its Hall of Records source itself contradicts the showing of due diligence necessary to overcome the trial judge’s discretionary denial. When coupled with the patent’s presence in appellant’s own vault, to have granted the new trial on the grounds asserted may well have been an abuse of discretion. Surely there is no showing of discretionary abuse in the denial of a new trial. Effective Date of Title We then have as the starting place of title before the court the appellee’s 1848 warrant of resurvey, consummated in an 1874 patent.

Appellant claims that by the obtention of its own patent in 1870 (prior to consummation of the 1848 warrant by issm ice of a patent to petitioner’s daughter in 1874) and by virtue of its intervening 1852 deeds, the trial court erred in instructing the jury that as a matter of law the appellee’s deed provided a superior claim to title because it related back to 1848. The instruction was not in error. The Hall of Records certification of “Gerrard” introduced in evidence by appellee shows: Warrant of Resurvey granted to Clary — May 20,1848 Resurveyed — May 19,1849 ⁶¹⁸ Passed by Examiner General’s Office —July 23,1849 Compensation due paid —July 23,1849 It was noted in Steyer v. Hoye, supra, 12 G. & J. 202 (1841) that: “It is a general and well established rule of the land office, that no patent shall be issued for any land for which a patent has been previously granted; yet it often happens from inattention or accident, that this rule is not observed, and therefore it has been laid down from a very early period that a patent always gives