McAuliffe v. Lerch

Marbury, C. J., delivered the opinion of the Court. This case was brought by the appellees in the Circuit Court for Anne Arundel County to prevent the appellants from using an ancient road, claimed to run over the property of appellees. As originally filed, it was a suit in ejectment for a strip of land over which the claimed road was located. The appellants pleaded not guilty, and on this issue the appellees took their testimony.

Then the appellants asked and obtained leave to withdraw the not guilty plea and file a disclaimer. Thereupon the appellees amended their declaration by leave of court, and filed an amended declaration in trespass q. c. f. To this the appellants filed pleas of general issue and that the place where the alleged trespass was committed was a public highway. The case then continued with the agreement that the testimony already taken ⁶⁷⁴ should be considered as if taken under the amended pleadings.

We thus have a case where two questions arise. First, did the appellants use a portion of appellees’ land as a roadway and second, if they did, was such user justified by the fact that such land had become, by prescription, a public highway. There was no contention that such a highway, if it existed, was ever accepted or maintained by the county. The evidence offered tended to show the use of the claimed roadway for many years as a cut-off between two county roads, known as the Governor’s Bridge Road and the Queen Anne Road.

The appellees attempted to minimize this use, and contended that, such as it was, it was merely by permission, and could not ripen into a prescriptive right. The case was tried before the court without a jury. The trial judge, accompanied by counsel, visited the property, and wrote a lengthy and careful opinion in which he concluded that the appellants had not established their right to use the road. As a result, he found for the appellees, and entered a judgment against the appellants for one cent damages and costs.

It is from this judgment that the appeal is taken. Notwithstanding the care with which the court considered the second question involved, namely, whether a public highway existed, he dismissed with scant attention the first question which involved the right of the appellees to bring the action. He said that the plaintiffs had established their title and were in actual possession of the land through which the so-called road ran. He also said that he did not understand that there was any dispute as to the location of the boundary line between the properties of the parties.

But the primary contention of the appellants here is that the appellees did not prove their title, and made no effort to prove possession. We find nothing in the record to show any concession by the appellants on the question of the appellees’ title or possession. On the contrary, one of the appellants, Mrs. Mc-Auliffe, in her testimony, claimed that her land ran to ⁶⁷⁵ the center of the road. There was no issue in the case of title by the appellants, and this statement is cited only to show that the appellees’ title was not admitted.

We must, therefore, examine the evidence to see if the appellees have established their right to bring the action. They must succeed, if at all, on the strength of their own case on this point, in the absence of any admission by the other side. Norwood v. Shipley, 1 Har. & J. 295 ; Parker v. Wallis, 60 Md. 15 , 45 Am. Rep. 703 .

It is, of course, well settled, that a plaintiff in an action of trespass q. c. /. must prove possession. The gist of the action is the injury to the possession of the plaintiff. The holder of a perfect paper title who is not in possession cannot maintain trespass. His remedy is in ejectment.

If, however, the plaintiff has a paper title to the whole tract and is in actual possession of part of it, his