Wissler v. Elkins

Adkins, J., delivered the opinion of the Court. The bill of complaint in this case alleges that plaintiffs-1 are the owners by the entireties of a lot of land on the south side of East Church Street, Frederick, Maryland, fronting ³¹⁹ twenty-eight feet more or less on said street and known as 204 East Ohnreh Street, which was conveyed to them by G. S. C. Bopst and wife on ^November 30th, 1921, and of which plaintiffs have since been in possession; that the brick dwelling tbereon is constructed eighteen inches, more or less, •east of the western boundary line of said lot; that the defendant is now engaged in the construction of a garage on the property aidjoining plaintiffs’ lot, and that the'foundation of said garage already excavated, or partly so, extends over and beyond the boundary line of plaintiffs’ premises for a distance of about eighteen inches, more or less; that the construction of said garage on part of plaintiffs’ property would be an irreparable injury to said property and equivalent to an assertion of title by the defendant to the land owned by plaintiffs in fee simple. The prayer of the bill is. for an injunction restraining defendant and her agents and employees from encroaching on plaintiffs’ property and from building any part of said garage thereon, and from committing any waste or trespass thereon; and for further relief. In her answer defendant denies that she is building her garage or encroaching in any way upon the property of plaintiffs, and avers that she is building said garage on her own land.

In the course of the taking of testimony before the chancellor, it developed that the foundation of defendant’s proposed garage extended up against plaintiffs’ building and uncovered part of the foundation of plaintiffs’ house on the west side, defendant’s property adjoining plaintiffs’ on the west; that plaintiffs’ foundation on the west side extends about a foot or fifteen inches beyond the wall of the house, said extension being uncovered when defendant’s flower beds were dug up to pour cement in; that the fence dividing the rear ends of the two lots runs two feet west of plaintiffs’ west wall, and this fence had been there as long as any witness remembered — much longer than twenty year's. The testimony of the county surveyor and city engineer, ³²⁰ Crum, demonstrates, we think, that plaintiffs have the record title to thirty feet front, which would of course be covered by the expression in the deed, “twenty-eight feet more or-less.” He traced back the titles to the lots, owned respectively by plaintiffs and defendant, to the original lots of Frederick Town laid out in 1783, confiscated British property, laid out on a plat in the city register’s office. He testified that plaintiffs’ lot was a part of lot number 272 on the said original plat, and defendant’s a part of number 271, the-northeast comer; that each of lots Hos. 271 and 272 was sixty-two feet wide; that he took the deed from Bopst topi aintiffs and working the chain back to where Bopst bought it from Dorsey and Dorsey from Wertheimer, and Wertheimer from Reich, as attorney in fact; that in the last-mentioned conveyance, dated August 31st, 1907, the lot is-described as having a front of twenty-eight feet, more or less, but the deed further states that the lot conveyed is the-unsold portion of the lot which was conveyed to Marshall Font by David B. Devitt; that witness looked up what portion had been sold and found it was thirty-two feet, conveyed by Marshall Eout to Maggie Mantz in 1895, which, left remaining thirty feet of lot Humber 272; that not being sure where the thirty-two foot lot sold to Maggie Mantz. started with regard to the corner of Humber 272, but finding that it began at the northwest corner of the Hergesheimer property, witness traced up the latter property and found that he owned lot 273, “so this Maggie Mantz property began, at the