Wilson v. Hinsley

Le Grand, C. J., delivered the opinion of this court. This is an action of trespass on the case, brought by the appellant against the appellee, to recover damages alleged to have been inflicted on her reversionary interest in a certain house, in the city of Baltimore, by the manner in which he built a stable adjoining it; the particular damage complained of being, the driving into the northern wall of her house certain spikes, by which the southern side of his stable was upheld and supported, and in the over-lapping of a portion of her northern wall, and the placing upon its top and adjoining roof, tin, &c. The plaintiff to prove her case, gave evidence that at the ⁷² time, and before the happening of the acts complained of, her tenant was in the possession of the house, for which, the latter as tenant, paid rent. She also gave testimony, that spikes had been inserted into her wall, and tin placed upon a portion of her wall and roof by the defendant.

The plaintiff then asked the witness, Myers, the following question: “Has any effect been produced upon the marketable value of the plaintiff’s house in Calvert street, by the erection adjoining thereto of the defendant’s stable mentioned in the declaration?” The court refused to allow the question to be put, and this constitutes the plaintiff’s first bill of exceptions. Perhaps it would have been the more advisable course to have withheld the objection to the admissibility of the evidence, or taken it subject to exception, until all the testimony in the cause had been received; but, as it was the right of the counsel of the defendant to object at the time of the offer, it was the obligation of the court to decide it at that time, and we concur with it in the propriety of its rejection. It was competent to the plaintiff to show by evidence, that the marketable value of the house had been diminished by the- injury complained of, to wit, the driving of the spikes and the oyér-lapping of her wall, but not by the erection of a stable adjoining her property. The erection of a stable in a particular place, may, or lhay not, affect the marketable value in the neighborhood.

But this is not the injury complained of in this case; it is the manner of its erection in the use and injury of the house of the plaintiff. Had the question been so confined, it would have been proper. In addition to the evidence contained in the first bill of exceptions of the plaintiff, testimony of a similar character to it was offered by the plaintiff, with the additional fact, that the plaintiff had effected, in her own name, an insurance on the house. The defendant to support the issue joined on his part, offered in evidence a paper purporting to be a deed of trust, dated the 25th June 1844, from James P. Wilson to John Smith Hollins and Benjamin H. Wilson, by which the grantor reserves to himself during life, the right to sell and dispose of