Burgess & Commissioners v. Stocksdale

McSherry, C. J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit. There are eighteen bills of exception in the record. Seventeen of. them relate to rulings on the admissibility of evidence and one concerns the instruction given by the trial Court and also covers the twenty rejected prayers of the defendant. The facts which gave rise to the controversy are as follows : The pláintiff, Mrs. Eliza J. Stocksdale, is the owner of a house and lot of ground situated in the town of New Windsor in Carroll County. The lot fronts on Church street and rims back to a public lane which is parallel to Church street. On the east side of the house and lot there is an alley, thirteen feet and eight inches wide, extending from Church street back to the public lane. The east wall of the plaintiff’s house is part *207 of the west line of the alley, and the remaining portion of the west line of the alley is marked by a fence and by the east face of a stable erected on the plaintiff’s lot. The plaintiff converted a window in the east wall of her house into a doorway which opened into the alley. She put steps to this doorway and the steps extended thirty inches into the alley. She constructed a board-walk of the width of thirty inches from the steps and along the east wall of the house to Church street. Subsequently, and in order to prevent the surface-water from coming in contact with the foundation wall of her house, the plaintiff caused a trench to be dug beside the foundation wall along the alley and built a brick wall some few inches distant from and parallel to the foundation, and she carried this parallel wall about six or eight inches higher than the level of the alley. There was a drain-pipe extending from the house into the alley. The Burgess and Commissioners of New Windsor removed the steps, they tore away the boardwalk and that part of the parallel brick wall which projected above the surface of the alley and cut and removed the drainpipe ; and they did these acts upon the assumption that the alley was a highway over which they had control, and upon the further assumption that the steps, board-walk, parallel wall and drain-pipe obstructed the free use of the alley by the public. The plaintiff then brought this suit against the municipality to recover damages for those trespasses. The declaration is in the usual form and alleges that the defendant, a municipal corporation, “broke and entered the plaintiff’s close * * * * fronting seventy-seven and one-half feet on the north side of Church street * * * and running back two hundred and fourteen and a-half feet deep * * * * and being the same land that was conveyed to the said Eliza J. Stocksdale by Deborah A. Baile by deed dated October sixteenth, eighteen hundred and ninety-eight, and also by a confirmatory deed from said Deborah A. Baile to said Eliza J. Stocksdale dated April twenty-fifth, nineteen hundred,” and then and there committed the acts of trespass above specified. The defendant pleaded, first, that it did not commit the wrongs *208 alleged ; secondly, that the land was not in the plaintiff’s close; thirdly, liberum tenementmn, but this plea was withdrawn ; and fourthly and fifthly, that the alley was a highway, the free use of which by the public had been obstructed by the plaintiff, and that the supposed trespasses consisted in the removal by the defendant of those obstructions. Upon the issues framed on the first, second, fourth and fifth pleas the case went to trial and the trial resulted in a verdict for the plaintiff. Judgment was entered on that verdict and the defendant has brought the record into this Court on appeal. Before proceeding to consider the numerous exceptions a brief statement of the legal principles governing actions of this character will be made because that method of dealing with the case will greatly shorten the discussion. The, action of trespass quare clausum fregit differs widely from the action of ejectment. In the former the gist of the action is the injury to the possession; whilst in the latter the plaintiff, in order to recover, must have the legal title to the land and a possessory right not barred by the Statute of Limitations. In the first, title need not be shown to be in the plaintiff, in the second, not only must title be shown to be in the plaintiff, but the title relied on must be a legal title superior to that of any other person. It is the settled law of Maryland that “any one who is in actual and exclusive possession of real estate or chattels real at the time of the trespass, though his occupancy be limited and temporary, and though he have no title ■ whatever, may maintain this action (trespass quare clausum fregit) against any wrongdoer, or against any one who has not title himself or authority from the real owner.” Poe Pl., sec. 242; Harker v. Dement, 9 Gill, 11; Tyson v. Shuey, 5 Md. 550; Wilson v. Hinsley, 13 Md. 73. This form of action may be resorted to for trying title to land, as in Ridgely v. Bond, 17 Md. 22. When such is the case recovery can be had only on the strength of the plaintiff’s title, just as in ejectment. But it does not follow by any means that proof of title in the plaintiff is an essential requirement in every instance where trespass quare clausum fregit is brought. A failure to remember that *209 it is not necessary in every action of trespass guare clausum fregit to prove title in the plaintiff will lead to confusion of thought and to consequent misapplication of legal principles. If it is not necessary for the plaintiff to prove title, of course it is not necessary to prove such a title as will support an action of ejectment. The learned senior counsel of the defendant rarely misapplies a legal principle, but his inadvertent omission to recall the distinction between an action of ejectment and of trespass quare clausum fregit in the particular just indicated, has led to the error which runs through the entire case. Under the pleadings title in the plaintiff to the locus in quo was not an issue which the plaintiff was required to sustain. And this is true because so far as the averments of the declaration are concerned, the right of the plaintiff to recover depended on bare possession, and that right the defendant if a mere wrongdoer, could not defeat by proving an outstanding title in a stranger. Possession will support the action! against any person other than the real owner or some one in* privity with him. The issues made up on the pleas did not. cast upon the plaintiff the duty to show title to the locus in quo;; for the first plea merely denied the trespass and damage, Stephen Pl., 160; Poe Pl., sec. 250; the second, disputed the possession ; and the fourth and fifth sets up new matter by way of confession and avoidance, which drew upon the defendant the burden of proof to sustain the avoidance. We have, then, so far as respects the plaintiff, the simple case of an action of trespass to recover damages for an injury to her possession ; and the constituent factors to be proved were, first,. possession ; secondly, an invasion of that possession by. the defendant, and thirdly, the amount of damages occasioned thereby. Under the plea of not guilty it was competent to the defendant to show title to the locus in quo in itself and the right of immediate possession ; for if the plaintiff had neither title nor the right of possession she could not maintain the action. Storr v. James, 84 Md. 289. The plaintiff offered evidence tending to establish all of the constituent factors which were necessary to make out her *210 case. The exceptions numbered one, two, three, four, five, five, and six (there are two numbered five) were reserved by the defendant to the action of the Court in overruling objections to the admissibility of evidence offered by the plaintiff; and the remaining exceptions, other than the eighteenth, were taken to the refusal of the Court to admit evidence offered by the defendant and to the admission of evidence on the cross-examition of the defendants’ witnesses, and finally to the admission of certain evidence in rebuttal. In the first and second exceptions it is alleged there was error because the trial Court admitted in evidence the deed and the confirmatory deed referred to in the declaration. The ruling was obviously right. Even if the deeds had been offered to prove title they would have been admissible, because the plaintiff may begin at either end of the case she pleases, and as she could not in one offer embrace her whole case she was entitled to present the items of proof separately. These deeds together with the oral testimony set out in the third exception and in one of the exceptions numbered five and in the sixth exception tended to show the outlines of the plaintiff’s land, and that the locus in quo was within those outlines. This was clearly competent to identify the plaintiff’s holdings and therefore to show the extent of her possession. Besides this, the deeds tended to show color of title in the plaintiff and therefore to negative the suggestion that she was a mere trespasser herself; and even had the deeds been void they would still have been admissible as showing, not title, but the character of. her possession. “Where the plaintiff is actually in possession in person or by his agents or servants, but without title, as, for example, under a void or parol lease, and the defendant is a mere wrongdoer, entering without right,” the bare possession is sufficient to sustain the action. Poe Pl., sec. 245. There was no error committed in the rulings set out in the first, second, third, fifth and sixth exceptions. The other exception numbered five was taken to the admission in evidence of the minutes of the proceedings of the Burgess and Commissioners relative to the alleged acts of trespass. These *211 minutes were competent evidence. They showed the resolutions adopted by the town authorities and directing the bailiff to remove the steps, board-walk and other structures mentioned in the declaration. This was evidence directly showing that the trespasses complained of had been committed by the municipality. The fourth exception was taken to a ruling allowing the plaintiff to show how the removal of the brick wall affected the plaintiff’s property. The ruling was clearly correct. It simply admitted evidence tending to prove a part of the damage sustained by the plaintiff. There is no exception numbered seven in the record. The eighth exception became immaterial by reason of the answer given by the witness to the question objected to. The ninth, tenth, eleventh and twelfth exceptions relate to rulings by which the defendant was denied the right to show by oral testimony and record evidence that the deeds held by the several persons who formerly owned the lot conveyed to Mrs. Stocksdale, did not include the alley in their outlines. It was not proposed in these exceptions or in any others to show that the title to the alley was in the defendant, but merely that it was not in the plaintiff. The evidence thus offered was not relevant or material. Plaintiff’s title was not in issue and the offer did not include a proposal to prove title in the defendant. It might have been true that the former owners of the Stocksdale lot did not own the alley, and it might have been also true that the lines of plaintiff’s deed did not include the alley; but this would not have defeated her right to recover for an injury to her possession, if she was in actual possession, unless the offer had gone further and had proposed to show that the title and the right of possession were in the defendant. This is strictly in accord with Parker v. Wallis, 60 Md. 15. That case holds nothing more than this, that though title is not in the defendant, he may still defeat the action when the plaintiff has neither title nor the right of possession. Suppose it were conceded that the plaintiff had no paper title or color of title to the alley, yet if she was in actual • possession of that part of the alley upon which the steps, the board-walk *212 and the brick wall were located, she would have been entitled to recover damages for the invasion of that possession unless the real owner entitled to possession, or some one claiming under such owner, had been the person who committed the trespass. It is nowhere pretended that the Burgess and Commissioners had title to the alley. There is some evidence tending to show that the alley had been used by the public, but there is not a particle to show that it had been conveyedtp the town or that it had been dedicated.to the public and had been accepted by the municipality. The proffered evidence even if it had been admitted would not have exculpated the defendant or defeated the action, and its exclusion, therefore, did no injury. In the thirteenth exception an attempt was made to show how particular individuals would be incommoded or injured if the alley were closed. It was. proposed to show that those persons had no other outlet save the alley. This was entirely aside from the issues in the case. The consequences resulting to a few persons from closing the alley had nothing to do with the issues raised by the fourth and fifth pleas, for they related to a partial obstruction of the alley tp the detriment of the public. The rejected evidence tended to prove a probable private nuisance, the pleas justified the acts of the defendant on the ground that they were committed in lawfully abating a public nuisance. The fourteenth exception presents no difficulty. A laborer testified that he had received instructions from the Burgess to mow the grass on all the streets and alleys and to miss none. The witness was then asked : Did you mow this alley and were you paid by the town for doing so ?. The question was objected to by the plaintiff and was excluded by the Court. If the witness had answered yes, it would not have been any evidence showing acceptance by the town of an antecedently dedicated highway ; because such a trifling act as mowing grass on a single occasion by direction of a municipal officer was colorless. Acceptance of a dedication must be by competent authority and it may be evidenced in one of three ways, *213 viz.: by deed or other record ; by acts in pais, such as opening, grading or keeping the road in repair at the public expense ; or by long continued user on the part of the public, City of Balto. v. Broumel, 86 Md. 158. The proof of a single instance of no significance would not measure up to these requirements. Besides all this, the very Burgess who directed the laborer to mow all the streets and alleys himself testified in the sixteenth exception that he did not instruct any one to do any work on this particular alley for the corporation. The fifteenth, sixteenth and seventeenth exceptions relate to acts done and declarations made in respect to the alley by Peter Baile at the time he was the owner of the Stocksdale lot and in possession of it and the alley. Evidence had been adduced by the defendant tending to show that the public had uninterruptedly used the alley since eighteen hundred and sixty-nine. In rebuttal the plaintiff proved that Peter Baile when owner of the lot closed the alley on several occasions and in various ways, and that at the times when he obstructed it or shortly afterwards he declared that he had so closed it to prevent the public from acquiring a right to use it. The quality and intention of acts may be proved by evidence of declarations accompanying, or so nearly connected with them in point of time as will serve to explain their true character and purpose. McDowell v. Goldsmith, 6 Md. 319. The rule applicable to res gestae does not require that the circumstance proposed to be given in evidence should have occurred at Ihe precise time when the principal fact happened. If it arose either at the time or so soon thereafter ás to constitute a part, of the transaction, it serves to give color and definiteness to it. Handy and Tull v. Johnson, 5 Md. 450. The declarations objected to fall strictly within these rules of evidence and no error was committed in permitting them to go to the jury. For the same reason there was no error in rejecting the defendant’s eleventh and thirteenth prayers. The instruction given by the Court in lieu of the plaintiff’s prayers is objected to ; first, because it permitted a recovery without proof of title ; secondly, because, it left to the jury a *214 question of law, in this, that it submitted to the jury the determination of what was possession; and thirdly, because it ignored the defense relied on in the fourth and fifth pleas. With regard to the first objection nothing further need be said than has already been stated in an earlier part of this opinion. , Possession is sufficient to sustain the action against a wrongdoer, or one not the legal owner entitled to possession, or one. not claiming Under such owner. There is not the faintest particle of evidence indicating that the municipality owned .the alley, o r that it claimed, in what it did, to act under any one who did have the legal title to the alley. The instruction was not specially excepted to in the trial Court on the ground that it submitted a question of law to the jury. Under Rule 4, which is sec. p,-Art. f of' the Code, no objection to the effect that a prayer submits a question of law to the jury can be availed of in this Court unless the record discloses the fact that the same objection'had been interposed in'the Court below. But was there a question of law submitted to the jury? “What constitutes possession,” says Mr. Poe, “is a question of law for the Court upon the facts of the case.” Poe Pl., sec. 246. This statement'is absolutely correct in the connection in which it was used. The learned author was dealing with the question of adverse possession and all of the cases cited in the note to sec. 24.6 are cases of adverse possession. What constitutes such possesion is obviously a question of law for the Court; but whether facts exist is a question for the jury. Matthews v. Ward, 10 G. & J. 443; Thistle v. Frost. Coal Co., 10 Md. 146; Keener v. Kauffman, 16 Md. 307; Sadtler v. Peabody Heights Co., 66 Md. 1. The instruction did not deal with adverse possession. It had relation to actual possession; and there can be no doubt that the plaintiff was, when the trespasses were committed, in the actual possession of that part of the alley occupied by the steps, the board-walk and the brick wall. Whether she was thus in actual possession was a question of physical fact strictly within the province of the jury to find; and it was in no way complicated with legal principles that bear upon and control the *215 determination of the inquiry as to what constitutes adverse possession. The last objection to the instruction, viz., that it failed to allude to the defense made by the fourth and fifth pleas cannot prevail. There was no evidence adduced to support those pleas. There was evidence tending to show that the public had used the alley for a long time; but if that evidence established a right in the public to use the alley it wholly failed to show a right in the municipality, or that the' alleged obstructions were removed for the purpose of enabling the municipality to use the highway, as alleged in the fourth plea ; and the evidence equally failed to prove that the municipality had the right or authority to remove the alleged obstructions “for the purpose of enabling all persons to go and return * * * * over said highway,” as alleged in the fifth plea. There is nothing in the record to show that the municipality possessed the power to remove the steps, the board-walk or the wall, because they were nuisances which obstructed the free use of the alley. “It is a doctrine not to be tolerated in this country,” said the late Mr. Justice Miller in Yates v. Milwaukee, io Wall. 497, “that a municipal corporation without any general laws either of the city or of the State within which a given structure can be shown to be a nuisance, can by a mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business and all property in the city at the uncontrolled will of the temporary local authorities.” We come now to the twenty prayers presented by the defendant. The first, second and third sought to withdraw the case from the jury on the ground that there was no legally sufficient evidence entitling the plaintiff to recover. From what has been said it is manifest that those prayers could not have been granted. The fourth, fifth, seventh, eighth and twelfth asked instructions denying a recovery because of alleged want of title in the plaintiff. But her right to maintain the action did not depend on her title as has already been pointed out, and the prayers were, therefore, properly refused. *216 Th'e sixth prayer asked the Court to rule that there was no evidence showing that the plaintiff was in possession of the .locus in quo. The structures were permanent and securely ¡built and were used by the plaintiff. There is no room for 'Có'ntróversy as to her being in actual possession of the ground covered by them. Whether she was rightfully in possession as against the true owner if she herself was not the true owner is distinctly different from her being actually in possession. The tenth prayer asked a ruling that there-was no legally sufficient evidence tof title or possession. As to title there was no need that there should be evidence ; as to possession what has just been' said respecting the sixth prayer applies to the tenth. The fourteenth prayer, erfoneously marked the fourteenth plea, the fifteenth and the sixteenth prayers are all open to the objection that they do not submit to the jury to find, as the fourth and fifth pleas allege, that the steps, walk and wall obstructed the use of the alley by the public; but deny a recovery if the defendant removed or abated them even though they did not interfere with the use of the alley. Upon the defendant’s own theory its authority to remove the structures was dependent on the fact that those structures, were obstructions ; but these prayers wholly eliminated that essential element of defense and justified their removal though they occasioned no .inconvenience. The 'seventeenth and eighteenth prayers lacked evidence to support them. There was no evidence that the structures erected by the plaintiff “prevented the use of said alley-way for travel in the mannev that it had been used before the said” structures were built. There was no evidence that the manner of use had been interfered with at all—the most that could be claimed was that the width devoted to public use was slightly abridged. Besides the prayers are at variance with the fifth plea. That plea justified the removal of the structures on the groúnd that their removal was necessary “for the purpose of enabling all persons to go and return” over said alley; whereas the prayers do not submit to the jury to find whether the structures were removed in order to restore the accustomed way, but restrict *217 them to ascertaining whether the alleged obstructions were demolished "for the purpose of abating and removing them’’ without the slightest reference as to whether their destruction was for the purpose of enabling all'persons to go and return. The nineteenth and twentieth prayers widely diverge from the issues. The fourth and fifth pleas refer to obstructions in the alley ; the nineteenth and twentieth prayers proceed upon the hypothesis of a closing of the alley. The right of the plaintiff to close the alley was not involved and it would have led the jury far afield from the real issues had they been instructed with reference to the total closing of the alley. (Decided June 17th, 1902.) As we find no errors in the rulings excepted to, the judgment against which the pending appeal was taken will be affirmed. Judgment affirmed with costs above and below.