Stanton v. Lapp

Briscoe, J., delivered the opinion of the Court. This is an action of trespass quare clausum fregvt brought in the Circuit Court for Allegany County, by the appellee against the appellant. The declaration contains but one count, and it avers, in substance, that the defendant broke into and entered the plaintiff’s close, situate in the town of Frostburg, in Allegany County, and did great damage thereon, excavated the ground appurtenant, destroyed the access of the plaintiff to an alley, broke open the cellar door, interfered with and damaged the trade, business and occupation of the plaintiff, and other damage and injury to the plaintiff’s close, then and there did, to the great loss and damage of the plaintiff. The close is described as beginning at a point on Main street, in the town of Frostburg being the eastern side of the front of plaintiff’s premises, occupied by the plaintiff as a saloon, and leased from the defendant to the plaintiff and running with the north side of Main street, westerly sixteen feet, then at right angles with Main street, by a straight line 164 feet to any alley, then with the south side of the alley, in an easterly direction sixteen feet to a point, then by a straight line to the point of beginning, being the property leased to the plaintiff by the defendant, and being a part of the property described in a deed to the defendant from O. J. Moat, dated October 30, 1907, and recorded in one of the land Becords of Allegany County.

The appellant, as defendant, pleaded to the declaration, that he did not commit the wrongs alleged, and upon trial, ³²⁷ the verdict and judgment being for the plaintiff, the defendant has appealed. The record contains four hills of exception reserved by the defendant to the rulings of the Court, in the course of the trial. Three of these relate to rulings upon questions as to the admissibility of evidence and the fourth as to the rulings upon the prayers. These will be considered in their order, in the record.

The location of the premises and the locus in quo of the trespass are sufficiently set out in the averments of the declaration, and as described in a lease dated the 4th day of May, 1903, from one Orville J. Moat, of Washington, D. ((f) the predecessor in title of the appellant, of the property in dispute, to one Eoberdeau Annan of Prostburg, Md., “for the full term of five years, beginning at and upon the expiration of the existing lease from Moat to one John Bradburn, (which has yet about two years to run).” This lease, on the 10th day of November, 1905, was for a valuable consideration, assigned and transferred by Annan to the appellee, upon the terms mentioned in the lease,, and he was in the actual possession of the property, at the time of the alleged trespass, and at the date of the trial. The property is described in the lease as “all that store room, in Moat’s Opera House Building, in Prostburg, now \ised, by John Bradburn, as a saloon, including all portions of the Opera House lot and premises now used* in connection with the saloon.” It appears that the Opera House property fronts on Main street, in Prostburg, and is divided into a number of tenement rooms, two of which are used as saloons, and one of these is the saloon property in question. The appellant sometime in the year 1907, purchased this “Opera House property” from the lessor, Moat, subject to the Annan-Lapp lease and thereafter the appellee being in possession, under the lease, paid the monthly rent to the appellant, which was accepted by him, as the owner of the property. ³²⁸ At the trial of the case, there was evidence tending to show that the appellant, after he became the owner of the property, in the year 1907, entered upon the lot, covered by the lease, without the appellee’s permission and excavated it in the rear of the appellee’s saloon bounded by an alley for a drain and a building.

That these excavations rendered access and approach to the saloon from the alley and rear of the building very dangerous for use, to the extent that the trade of the appellee from the rear of the building from the alley was practically destroyed, and the appellee’s business was thereby largely reduced. The evidence also tended to show that the plaintiff had objected to these excavations as an injury to his business a^jjl to his right of possession, but that the defendant replied, that “I own the place now, and can do what I please with it.” And when plaintiff said, he would go to see a lawyer, defendant states: “Well go. I don’t think, it will do you any good.” The witness, Annan, testified, that the saloon building and the lot in the rear upon which the alleged trespass was committed, were the same actually used by Bradburn, the former tenant and that he had used the lot in the rear of the saloon as a means of access to and from the saloon over the lot in the rear thereof to the back alley and that Brad-burn had exercised these rights. The witness, Gilbert, testified that he was familiar with the conditions of the premises and the uses thereof, the lot included, when Bradburn occupied the saloon, and that Brad-burn used the rear lot of plaintiff’s premises for coal purposes, closets, there being no inside closets, and that a large part of Bradburn’s trade came over the lot subsequently excavated, and that this trade continued to come to sai4 saloon after the plaintiff began business there, but was prevented from so coming by the excavations, which excavated conditions still continued up until' the trial of the case.

He further testified, that when the defendant acquired the owner ³²⁹ ship of the property from Moat, sub] eet to the lease to Annan and Lapp, the defendant in the fall of 1907, excavated a large drain in the rear of the Lapp place which prevented access to the closet from the saloon, and also prevented access to the saloon from the rear of the lot; and that in the following April of 1908, defendant made other excavations for a cellar and foundation about five feet in depth near to the building and extending about the whole, width of the part claimed in the declaration, embracing nearly the entire rear lot of plaintiff, which latter excavations remained up until the time of tidal. The plaintiff testified, that previous to the lease from Annan he occupied the next adjoining business room as a saloon, and retained its possession until May, 1908, paying rent therefor to defendant, that he rented the premises as stated in the lease from Annan, and paid the rent therefor to the defendant, monthly up until the time of trial, showing the receipts therefor to the jury, that Bradbum occupied the premises involved in this suit for five years before plaintiff acquired them, conducting therein a saloon, and used in connection therewith the closet, coal house, and the rear lot running back to the rear alley or street, from the premises, and used a private way leading from the side d'oor of the saloon to get back; that farmers and' others came to his saloon by way of said rear alley over the lot in the rear of his place as they also did when Bradburn occupied the premises, placing their teams and wagons on rear lot back of whole' building, while they patronized his place of business, and did other business in the town of Frostburg; that most of Bradburn’s trade had come from said rear street over the rear lot, and that most of plaintiff’s trade also had reached him in that way. Plaintiff testified that in fall of 1907 defendant having bought the property, which embraced two tenements to the east of plaintiff’s tenement and one to the west, proceeded to excavate a large drain in the rear of the saloon, and left it open, and in April, 1908, defendant ex ³³⁰ cavated nearly the whole of plaintiff’s rear lot as if for the purpose of a large building; that the drain excavated in the fall of 1907 cut off access to plaintiff’s place from said rear street, and from his saloon to the closet, and that several parties fell in the drain, and that the excavation of the lot in the rear cut off all access of his patrons to his place from such rear alley, and also prevented' him from reaching his coal house in the rear; that after the excavation of said drains and the excavation of said lot, his business as a result of the loss of his trade from the rear alley, fell off from forty to sixty per cent, in the months succeeding the excavation, which loss of business from such causes continued up to the time of trial; that before the excavations plaintiff’s business amounted to from $100.00 to $600.00 per month; of which from forty to fifty per cent, was net profit. The witness Bradburn, who had occupied the saloon prior to the plaintiff, testified that he used the lot in the rear thereof as a part of his tenancy and used1'the side door to a private alley; that the most of his trade came from the rear alley over the lot, where farmers would place their teams, and wagons while they patronized him; that he saw the excavated conditions of the premises during Lapp’s tenancy, and that the excavations cut off all such trade, and that witness would not pay one-third as much rent for the premises with access from the rear alley cut off as he would with access as he enjoyed and used it during his tenancy.

The plaintiff’s testimony was further cori'oborated by the testimony of the witnesses Betz and Griffith, who further testified, that the coal could only be brought to the place from the rear alley, and that the excavations had completely cut off access to plaintiff’s place from the rear streets, and such excavations continued unremedied to the time of the trial. There was other evidence, tending to establish and to make out the plaintiff’s case. The testimony on the part of the defendant, was to-the effect, that the drain or ditch was dug by the defendant on ³³¹ the sixteen foot lot claimed by the plaintiff up to an opening in the cellar wall, under the room occupied by the plaintiff for the purpose of letting out the water in the cellar, which had been turned there by the plaintiff and which ran on and over the other projxerty of the defendant; that the water flooded the room where the steam heating plant was located and rendered it useless, and that a passage way was put across the opening to the closets in rear of the building. That a part of the lot was excavated for the purpose of erecting a building within six (6) feet of the same building, but a six foot passage way was left back of the building.

That the loss of the plaintiff’s back door or country trade was not by reason of the excavations, but was due to the depression of business and other local causes. The defendant’s evidence, as stated above, appears to have been corroborated in part by the witness Presh, a clerk in the defendant’s store. There was also evidence tending to show, that the excavations did not cut off or interfere with the plaintiff’s ingress and egress, to and from the saloon, and the defendant denied that the plaintiff had objected to the work, until after it was finished. It is thus seen, that the testimony on the part of the plaintiff and defendant, was, as is usual in such cases, conflicting and contradictory and it need not be further stated.

Upon the defendant’s own theory, the case was one to be submitted to the jury, upon proper instructions and unless there was reversible. error, in the rulings of the Court, the judgment cannot be disturbed. As we have stated the material facts soxxxewhat in detail, we will xxow consider the questions of law raised, on the record. The first exception was taken to the actioxx of the Court, in overrxxling the defendant’s objection, to the admission in evidence of the lease from Moat to Annan, and the transfer of the lease from Annan to the plaintiff, dated the 10th day of November, 1905. This assignment is as follows: ³³² “Por one dollar and other valuable