Peters v. Tilghman.

Pearce, J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit brought by Caroline P. Peters in her life against the appellees, and upon her death the appellants were made parties plaintiffs in her place. The plaintiffs’ close is described in the declaration as “certain lands of the plaintiff, the said Caroline P. Peters, situated in Worcester County in the State of Maryland; which were conveyed to her by Joseph Godfrey by deed dated December 1st, 1883, recorded among the Land Records of Worcester County, in Liber I. T. M. Eo. 10, folio 87.” The defendants pleaded not guilty, and took defense on warrant, but that warrant was countermanded, and later a warrant of resurvey was granted to the plaintiffs, and a survey and plat was filed by the County Surveyor to whom the warrant was issued, a copy of which plat will be inserted by the reporter. Locations for the respective parties were made upon the plat, and an agreement of counsel was filed in the case, admitting for the purposes of that action only, (1), “that the location of the certificate and patent of Mount Vernon patented to James B. Robins, December 19th, 1793, is correctly located by actual survey and protraction on the plat; (2), that the 27th line of Mount Vernon is correctly located on the plat; (3), that Hoshers Branch called for in the deed from James B. Robins to Littleton Robins, dated February 15th, 1793, from its entrance into Swan Creek to the going over way and dam therein mentioned, are correctly located on the plat.” This agreement, together with ²³² the plat and the plaintiffs’ certificate and list of title papers, and the deed of February 15th, 1793, from James B. Robins to Littleton Robins, mentioned, in the agreement, were offered in evidene by the plaintiffs.

That deed recites that John Purnell Robins, the father of Littleton and James B. Robins, was seized in fee tail of a tract of land in Worcester County, called Mount Vernon, containing 723 acres of land, which he could not devise, and which descended on James B. Robins as issue in tail, whereby he became entitled to the greater part of his father’s estate; but that James desired to make a more equal distribution of his father’s estate, and he therefore by that deed conveyed to his brother Littleton 400 acres, part of Mount Vernon, included within the following metes and bounds, viz: “Beginning at the mouth of a gut that leads out of a branch called Hoshers Branch, and falls into a creek called Robins, or Swan Creek, thence up and with the said gut to the said branch called Hoshers Branch, to a going over of the said branch by an old dam; thence with a line drawn southwest to the main horse road that leads out from the said James Robins dwelling house to Snow Hill, by the way of the cross roads or shop, and thence with the said road to the outlines of Mount Vernon, and thence with the said outlines northerly and easterly to a marked red oak, a corner tree of the said track standing at the head of the creek called Robins Creek or Swan Creek, thence binding on the said creek to the first beginning, containing 400 acres of land more or less, as also all that tract of land called Robins Addition, lying adjoining the lands that were devised to said Littleton by his father, called Ennis Addition. Oanarnec, etc.” The plaintiffs also offered in evidence all their other title papers mentioned in their list and certificate filed in the case. It will be seen by reference to the agreement above mentioned and to the surveyor’s plat, that the whole tract patented as Mount Vernon to James B. Robins is conceded for the purposes of this suit to be correctly located on said plat, the twenty-seventh line of Mount Vernon being particularly men ²³³ tioned as correctly located. It will also be seen from said, agreement and plat and the surveyor’s certificate that the beginning point of the tract conveyed by James B. Robins to Littletion Robins is correctly located on the plat at red letter A, at the end of the seventeenth line of Mount Vernon, where Hoshers Branch enters Swan Creek, and that the course of this branch from red letter A to the going over way and dam, and the going over way and dam itself are correctly located on the plat, the way and the dam being designated by black letter A, and that the course of the southwest line from letter A, to the main horse road called for in the deed to Littleton Robins is correctly located on the plat, but the length of this southwest line is in dispute, the contention being as to the location of the main horse road.

The plaintiffs contend that this southwest line strikes the main horse road at the letter U on the plat, while the defendants claim it does not strike the main horse road until it is continued to letter B on the plat. There is no dispute as to the location of James B. Robins’ dwelling as designated on the plat. But the defendants claim that the main horse road runs from this dwelling in a straight line till it intersects the twenty-seventh line of Mount Vernon, at the letter C as shown by the black line on the plat; while the plaintiffs claim that the main horse road diverges from said black line at or near the letter Q designated on the plat, and runs thence north of said black line, and in a straight line until it intersects the twenty-seventh line of Mount Vernon at the letter H, as shown by the red line on the plat. Thus it appears that the land in dispute is the wedge shaped piece between the conflicting locations of the main house road, marked Trespass on the plat, from which parcel the defendants, Tilghman and Purnell have cut the timber purchased by them from their co-defendants Ellen A. Robins and William L. Robins, who claim title under Littleton Robins’ deed above mentioned.

The sole question therefore is the true location of the main horse road. ²³⁴ Both parties offered.' evidence in respect to the location of this road, tending to prove the issues on their respective parts, and the defendants filed in the case before the trial a list of title papers and a certificate of the several lines run and locations made for them by the surveyor, but did not offer in evidence at the trial any title papers whatever. Two exceptions to the rulings upon the evidence were taken by the plaintiffs, and one to the ruling upon the prayers, and the verdict and judgment being against them they have appealed. During the examination of Mr. Sehoolfield, the surveyor who executed the warrant, and while he was testifying as to the plaintiffs’ location of the main horse road on the plat he was asked by the plaintiffs’ counsel to state what was the condition of that road between the point where it crossed the twenty-seventh line of Mount Vernon at the letter 0 on the plat and the continuation of the course of the road to the Seaside road at the point indicated by the letter F, the purpose being to show that this main horse road as located by the plaintiffs originally ran to the letter O. The witness replied that this road was in existence' up to Pennewells’ field, and within about 30 rods of the Seaside road, and that the red part of the line bétween O and F, indicated the part of the road now covered by Pennewells’ cultivated field. He was then asked: “Did any one point out that old road there as a continuation of the road you have testified about?” and the defendant objecting to the question the Court sustained the objection.

This is the first exception. It will be seen that in the certificate which had been admitted in evidence, the surveyor certified that he located “the main horse road con tinuedthat leads from James B. Bobins’ dwelling to Snow Hill, beginning at the letter 0 and running to the County road and crossing the same into an old road towards Snow Hill, the route of which was pointed out by William Guthrie, Jesse W. Messiek, John Tull and John E. Holstein.” Moreover before the question excepted to had been put to him, he had testified without objection that this road “was then in ²³⁵ existence up to Pennewells’ field where it was cultivated, and in reply to a question how he knew there was a road there, he said “my recollection is that old road' was pointed out there,” and that “they pointed out a lot of cinders there where there had been a blacksmith shop.” Besides this, George Smack who was on the survey, testified at the trial that there were signs of a straight road from the Robins’ dwelling until it reached the Seaside road near Pennewells’ house, and Charles H. Smack, also on the survey testified at the trial to the same exact effect. Jesse Messick, John Hickman and' John E. Holstein, all of whom were on the survey also testified at the trial to the same effect. The last named testified that he had heard his father say that in Judge Eobins’ day there was a straight road from the Seaside road down to Fairfield (the James B. Eobins’ dwelling), and you could see a light when you left tht Seaside road at Judge Eobins’ house.

It is therefore olear that the jury was in full possession from all the sources above mentioned, of all the information which could have been given it, if the witness had been permitted to answer the question, and the plaintiffs suffered no injury by the exclusion of the answer. There was no reversible error in this ruling. During the examination of defendants’ witnesses, one of them, Joshua Morris, testified that in 1872 he ran a sawmill for Collins and Vincent near this land and sawed timber which Collins and Vincent had purchased from the Eobins and Peters’ land at the place of the trespass claimed in this ease. ' He was asked whether any lines between these tracts were pointed out to him, and if so by whom, and he said there had been by John E. Purnell, who was dead at the time of that trial. . He was then asked what road Mr. Purnell pointed out as the line, and this question was objected to, but the Court overruled the objection and permitted the witness to answer.

It appears from the evidence in the record that' Mr. Purnell' was then the guardian of Mrs. Eobins’ children and was in charge of the Fairfield tract belonging to them. He was therefore interested in the subject of the ²³⁶ boundary, and the declarations of a party interested in any manner, are not receivable in such cases. 1 Greenleaf on Evidence, sec. 145; Jarrett’s Lessee vs. West, 1 H. & J. 501 ; Martin vs. Gunby, 2 H. & J. 248 . There was error therefore in the admission of this evidence, and there is nothing in the record which would enable us to say that the plaintiffs were not injured thereby. The third exception brings up the ruling on the prayers.

The Court granted the plaintiffs’ first, second, third and sixth prayers, and refused their fourth and fifth prayers. The first prayer instructed the jury that if they found from the evidence that the defendants broke and entered the lands of Caroline P. Peters, at the place located on the plat marked