Ramsay v. Butler, Purdum & Co.

Bond, C. J., delivered the opinion of the Court. The appellant applied to the Commissioner of the Land Office for a patent to a triangular -strip on the southern border of his land in Baltimore County, as a vacancy, and the appellees filed caveats on the ground that it had already been granted by the proprietary, and that there was therefore no vacancy which could be the subject of a new grant. The commissioner held with the caveators-, -and the eaveatee appeals-. On ¡November 10th, 1695, a patent wa-s issued to Walter Smith for a tract of land named “Bear Heck,” of five hundred acres, lying on the south side of Gunpowder Falls, and described as follows: “Beginning at a bounded white oak standing on the south side of a high hill near to a place called Hen ⁴⁴⁰ Port thence down the .said Palls southeast and by south two hundred and fifty perches to a hounded white oak standing on the south side of a branch called Cabbin Branch and running southwest and by west three hundred and twenty perches then northwest and by west two hundred and fifty perches thence straight to the first tree.” Pour months later, on March 26th, 1696, a patent was issued to Walter Burgess for another, neighboring tract of five hundred acres called “Cubhill,” and described as follows: “Beginning at two hounded white oaks standing on the south side of a great branch descending into the said falls and running thence north west and by north one hundred and fifty perches to a hounded white oak by another great branch it being a bounded tree of Walter Smith called Bear Reck and running along the said Smith’s line into the woods south west & by west five hundred thirty four perches then south east & by south one hundred & fifty perches then direct to the first tree.” The commissioner states1, in an opinion filed with his decision, that the certificates of survey show that Thomas Richardson, surveyor of Baltimore County, made the original surveys for both of these patents.

The certificates are not set out in the record. It will be observed that the second line of each tract is to begin at a bounded white oak tree and to run thence southwest by west, 'and that the line of Cubhill is also- designated as “running along said Smith’s line into- the woods.” The Cubhill line on that side was to e&tend two hundred and fourteen perches beyond Smith’s line on the same side. It appeal's from deeds and surveys of later date that Smith’s second line has for an indefinite period in the past been run, not straight throughout, hut with a turn to the north, somewhat less than one degree, at a point 94.3 perches from the beginning of that line; and that, on the other hand, surveys 'and deeds, fence lines, and a hedge line, of land op ⁴⁴¹ po-site the extension of the Gubbill line, and also one deed of Cobhill land opposite Bear Heck, have- taken this latter line to run straight from the common point of beginning, so that there has been a triangular strip- left between the two lines thus separated. There is testimony that three county surveyors have found the Cubhill line to- run straight and to leave this strip between tbe two- tracts as n-oiw outlined.

Evidence as to fences between tbe two- in tbe past is in conflict. There has been no evidence offered to show title to the strip by adverse possession, the caveators relying, finally, on the descriptions in the patents alone. The commissioner was of o-pinion that the intention in the patents was clearly that the second lines of the two tracts should be one and tbe same- to the full extent of the Bear Heck tract, and on that ground considered the land .already patented, and so refused the patent now applied f-or. He considered the disputed area to have bqen included in the Oubhill tract.

The caveatee objects that this, conclusion must be erroneous because it is either inconsistent with the established Oubhill line to the west of the Bear Heck tract, or, if that is to be left as it stands, the Oubhill line in that p-art opposite Bear Heck must, under the commissioner’s holding, be broken and advanced over the disputed strip, so- that the northerly boundary of tbe whole Oubhill tract would be three- lines- instead of tbe one intended in tbe description. It is our -opinion that the