Wood v. Ramsey

Irving, J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit, and the controversy seems to turn wholly on the proper location of the divisional line between the parties. William Morton devised a tract of land, containing twelve hundred and thirty-four acres, to his wife for life, and then to be equally divided between three children. The widow died, and the tenants in common executed deeds of partition to each other.

The appellant and the landlord of the appellee own parcels which are supposed to bo coterminous along the line where the trespass is alleged to have been committed; in fact, for the distance of five hundred and ten perches, comprised in only two lines. The deeds bear the same date; that is, the deed of the appellant’s predecessor in title, and the deed of appellee’s landlord were executed at the same time, as partition deeds, so that neither can take priority over, and be superior to, the other as a title paper; but they must be reconciled. The plaintiff declared for trespass upon a tract of land conveyed to him by George W. Tinges and George H. Hargeaut, trustees, dated the 28th December, 1883. The grantors were trustees appointed by the will of Margaret E. Morton, to whom one of the deeds of partition, executed on the 3rd of December, eighteen hundred and sixty-nine, was given.

These trustees conveyed to the appellant by courses and distances the same land, and by the same description and calls as are own ¹⁶ in Margaret E. Morton’s deed from her co-tenants in common, which is in evidence. By comparing that deed and the deed of the defendant (the appellee) we find that the third and fourth course and distance of Margaret E. Morton’s deed, and the first and second course and distance of the appellee’s deed make the divisional line between the litigants. The distances are the same in each case, and the courses are the reverse of each other. The call at the end of the fourth course of the appellant’s deed, is the beginning of Mrs. Bowen’s deed, (Mrs. Bowen being the defendant’s landlord,) and in each deed is described in the same words, or in the same, way, to identify it as the same point, viz., “a, stake upon the shore of the Patfixent river near a Avater-fence, three perches from a stake at the beginning of the twenty-eighth course of the survey made as aforesaid by the commissioners to mark and bound said land.” The deeds of partition recited the marking and bounding of William Morton’s land by commissioners appointed by the Circuit Court for Calvert County, after the death of Wm.

Morton. Upon application of appellant a warrant of resurvey was issued, and sundry locations were made by each side, which are in the record. The plaintiff began the location of his deed at the end of the first line of his deed, as he claimed it to be, at a granite stone No. 2, set up bjr the commissioners, to mark and bound the land of William Morton, Avhich seems to have been conceded as a boundary of the whole tract of William Morton; but the record evidence of that marking and bounding, appears by the proof to have been destroyed by fire. From that granite stone, the plaintiff (the appellant) after allowing for variation of the needle, ran the second and third lines of his deed by the deed; and then finding the fourth course would not take him to what he claimed to be the call on the Patuxent river, he ran the fourth line without respect to the course or distance, to ¹⁷ the point designated on the plats as letter “P,which he claimed as the call, and of which he offered some evidence, tending to show' it was the call.

The appellee claims that the call on the Patuxent river, mentioned as the beginning of his deed and the end of the fourth line of appellant’s deed, is at a different place, and offered evidence tending so to prove. From this beginning (as he claimed) of his deed, lie ran the divisional lines between himself and the appellant so as, according to his contention, to show there was no trespass. The verdict was for the appellee; and tlie appellant now contends that there ivas error in rejecting his third prayer as offered. in granting only one portion thereof, and in granting the defendant’s prayer. We think the appellant has no ground to complain of the rulings on his behalf.

His first and second prayers, which Avere granted, certainly seem to have given him all he was entitled to claim. If ho could satisfy the jury.that his location of the point on Patuxent river ivas ivliere he claimed his fourth line ended and the appellee's deed began, then, under the instruction granted him, .the jury could find his location accurate, and give him the verdict, if they also found his starting point right. The third instruction, in lieu of Ms third prayer, could only he understood as saying that proper location involved a proper allowance for the variation of the needle. It could’ not mislead; hut though, in effect, the same statement was in the third prayer, it was coupled with a proposition which could not he assented to as stated.

The prayer assumed, and asked the Court to assume, that the first line of his location ivas properly located, and'that granite stone Ho. 2 was