Tyson v. Shueey

Eccleston, J., delivered the opinion of this court; This-action of trespass qitare clausum fregit, was instituted in- Car-roll county, and subsequently removed to Frederick. The declaration contains but one count, which charges the defendant, now appellant, with- breaking and entering the close of the plaintiff, called “Greyhound Forest,” lying and being in Carroll county. The defendant pleaded non cul. No warrant of resurvey was issued, neither party having applied-for one, and consequently the cause was tried-without plats or-locations.

Thomas Smith, a.witness on the part of the plaintiff, stated that for twenty-five or thirty years he had known the land on-which the alleged trespass was committed. That in June 1852, he was at the place of the alleged trespass,- when the’ plaintiff and defendant were both present;,and the defendant fully admitted that he “had committed the trespass, and ad-refitted that the'land on-which the alleged trespass was committed was the property of plaintiff. That the quantity of land-trespassed upon was spoken of as fifteen and five-eighths acres.” This witness also gave evidence as to the quantityof wood and-timber cut, and the value of it. He likewise stated “that plaintiff owned about sixty acres of wood land, of-which said fifteen and five-eighths acres was part.” And again, speaking, of his being, on the “said fifteen and five-eighths acres, when the plaintiff and defendant were present,” the witness says “he has no hesitation in saying that the defendant admitted the said land to be plaintiffs.

That at said time defendant never made any claim to said land. That defendant said he had cut ⁵⁴⁷ said timber unintentionally and was sorry for it.” It appears from the testimony of this witness, that the defendant has land adjoining that of the plaintiff; and the witness owns some forty or fifty acres about a mile off. He says he had often passed through the plaintiff’s woodland prior to the trespass. Alluding a third time to the declarations of the defendant, Smith says, “defendant admitted that he had had said fifteen and five-eighths acres cut, that it was accidental, and that he wished to compensate plaintiff for it.” Levi T. Bennett, one of the plaintiff’s witnesses, says he know the land before the cutting and has known it since.

He testifies in regard to the quantity and value of the wood and timber; and then says he “heard defendant say he was satisfied it was plaintiff’s land, and was willing to pay what was fair for compensation. ’Chat plaintiff, defendant, Thomas Smith and Charles Hood, came to the home of the witness. That there was no dispute about the title.” The plaintiff again called Thomas Smith, and offered to prove by him, that the locus in quo was always reputed to be within the limits of “Greyhound Forest,” and that said fifteen and five-eighths acres of land, on which the alleged trespass was committed, had always been known by general reputation in the neighborhood, as part of Greyhound Forest. To the admissibility of this evidence the defendant, objected as not proper, under the pleadings, to prove the land on which the trespass is alleged to have been committed, was within the limits of Greyhound Forest, unless it could be shown that the witness had seen Greyhound Forest run, or that the lines or location of the tract had been pointed out to him by some one. In ejectment, or trespass, when the controversy involves a question of location, and plats are used in the cause, according to the practice, which in many respects is peculiar to this State, certain rules of evidence have been established, which are not applicable where no plats are filed, and the dispute does not depend upon location.

All the Maryland authorities referred to by the appellant, to show that the court below erred in admitting the evidence, are cases in which plats were used. And the rules formerly applicable to such cases have been materially ⁵⁴⁸ changed, in several particulars by the act of 1852, ch. 177. On the present occasion, being on the premises, the defendant admitted that he committed the trespass, was willing to make reasonable compensation for the injury, making no claim whatever to any portion of the land, but admitted it to be the land of the plaintiff. This being so, and the nar charging the trespass as having been committed upon the close of the plaintiff called Greyhound Forest, it could not be necessary for him to do more than to prove that the locus in quo was part of that tract.

There are cases where this might be done, by a witness who never saw the tract surveyed, or the lines pointed out. Suppose he had heard the defendant say, the trespass was within the limits of this tract, in order to admit such a declaration as evidence, would it be necessary to show that the defendant, or some one else had pointed out (he lines of the whole tract, or that the witness had seen them surveyed? We think not. To prove that a parcel of land is part of a large tract, in a case of this description, there can be no necessity for proving, or that the witness should know what is the exact true location of the entire tract.

A description of the close by name does not oblige the plaintiff to prove the lines or hounds of the whole tract called by that name; for such a nar does not necessarily assert title to, or claim possession of the entire tract; and therefore, proving possession of part thereof, and a trespass on such part is all that is required. But it has been said in argument, that if the objection stated in the record, in regard to the absence of any evidence, that the witness had knowledge of the actual bounds of the tract called Greyhound Forest, was not sufficient to exclude the offered testimony, still it was not admissible, because the locus in quo could not be proved to be part of that tract by reputation. Several decisions of the late Court of Appeals, have been relied upon as as sustaining this view. But they were prior to the act of 1852, ch. 177.

The 10th section of that act provides, “that it shall not be necessary to state the name by which lands may have been patented, in declarations, in action of ejectment, dower, trespass or case, but the same may be described by abuttals, course and distance, by any name it ⁵⁴⁹ may have acquired by reputation, or by any other description certain enough to identify the name.” If a party may declare upon the name which the land has acquired by reputation, by what possihle means, or by what species of evidence can he sustain the allegation, except by resorting to proof of that very reputation which established the name? It would be a very useless provision, which says, a party shall not he required to insert in his nar, the patent name of his land, but may use that acquired by reputation, if he can give no evidence of such reputation If in any action, of trespass, this act can have the effect of rendering such evidence admissible, surely it must do so in the present suit, where the defendant has fully acknowledged the trespass, and admitted the locus in quo to be the property of the plaintiff; the only use to be made of the proof by reputation, being to show that the name of the land is the same, as that, stated in the nar. In this state of the case, we think the court did right in receiving the testimony of Thomas Smith, which was objected to. It appears from the second bill of exceptions, the plaintiff offered to prove by L. T. Bennett., that the land is part of a tract, “the reputed name of which is Greyhound Forest,, and that he never heard it called by any other name.” To a question propounded by the defendant, the witness said he owned land within the limits of the tract reputed and known as Greyhound Forest; and the defendant then objected to the admissibility of the testimony offered by the plaintiff', but the court admitted it.

We understand that one ground of objection, urged below was, that the witness had an interest in the tract of land, and was therefore incompetent; but this objection has been waived, and the argument before us rests upon the grounds urged in opposition to the propriety of admitting similar testimony given by T. Smith. We have already said the court were right in receiving that, and for similar reasons we concur with them in admitting this. Parol admissions or declarations of defendants, in regard to the title of real estate, have in some instances been held inadmissible, because such proof might be considered as violating the principles of the statue of frauds. The cases op this sub ⁵⁵⁰ ject are examined by Justice Sutherland, in Jackson vs. Cole, 4 Cow.

Rep., 593 , where he expresses the opinion, that in all those cases it will be found, “either that a title had been previously made out, which it was sought to divest by the parol admissions, contrary to the provisions of the statute of frauds, or it appeared from the acknowledgments themselves, that there had been written conveyances, and that the admissions, therefore, were not the best evidence that existed in the case.” Under this qualification of the rule, for excluding proof of this sort, there could be no possible objection to the admissions of the present defendant. Not only was there no proof whatever of title in the present defendant, but whilst, upon the premises he disclaimed title, and at the same time admitting the right of the plaintiff, he acknowledged the trespass to have been his act. And this in an action of trespass, where possession under a parol lease, or bare possession alone, as against a wrong-doer without any title whatever, is sufficient to sustain the suit, and the issue being upon the plea of non ml. These remarks were deemed proper as preliminary to an examination of the seven reasons assigned by the defendant, why. the court should have instructed the jury, “that from the pleadings and evidence in this cause, the plaintiff is not entitled to recover.” The first