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 northwest comer of 273 and ran westward a distance of thirty-two feet. That wa's the sold portion, and Elkins got the unsold portion, which left 30 feet. I started on the-other side with the Wissler deed. Miss Gertrude Wissler bought from the James A. Brown estate in 1920 * * *' all that parcel of ground located on East Church Street containing thirty-four feet, more or less, and running back one hundred and thirty-nine feet, and it is a part of 271”; that the lot in Miss Wissler’s deed begins “at the northwest corner of the three-story brick dwelling house on said lot and; *321 running thence with the south side of East Church Street, eastwardly 34 feet, more or less, thence in a southerly direction the entire length of said lot hereby conveyed in a straight line the distance of one hundred and thirty-nine feet, more or less, to the northern boundary line of the new Solt garage property”; that the house now occupied by Miss Wissler was there in 1920, when she got the property; that in the deed of this lot from Laura Y. Getzendanner to Mary Brown (the said deed is later offered in evidence) it is shown that the above-mentioned point of beginning is twenty-eight feet from the western line of lot 271 (the western boundary of said lot being Chappel Alley); that witness measured from the corner of said alley to the western corner of Miss Wissler’s house on Church Street and found the distance was twenty-eight feet; that witness then measured the distance thirty-four feet from the northwest comer of the Wissler property and it brought him to the dividing: line between lots 271 and 272; that the fence now standing on the rear of plaintiffs’ lot, if extended in a. straight line towards Church Street, would coincide with the line, as laid down in the plat of the lots in Frederick Town, between lots 271 and 272. But defendant endeavored to prove that the strip of land in dispute had been used by her and her predecessors in title adversely for more than twenty years; that her front fence ran to the west wall of plaintiffs’ home and there was a front gate opening on a cement walk in her yard; that she and her predecessors had flower beds on the strip now in dispirte. This we think she ha's failed to do. Her immediate predecessor and grantor, James A. Brown, testified that he and his wife were in possession of the property No. 202 East Church Street from 1888 until it was sold to defendant in 1920; that the property belonged to his wife, who was a Miss Getzendanner, and had been in her family for many years; that the Getzendanner family told him, and it was generally understood in the family, that they regarded the strip now in dispute, about two feet, as belonging to Miss Tillie Fout, who was the owner of 204. This testimony of von. 149 11 *322 Brown was objected to and was admitted subject to exception. There was no motion to strike it out. Besides it was admissible under the authority of Cadwalader v. Price, 111 Md. 310. Witness further testified that his wife never claimed it; that while they were in possession of No. 202 they planted some creeping vines along the west wall of 204, but they asked and obtained permission from the owner of 204. Now, we have seen that the strip in controversy was a part of lot No. 272; the lot conveyed to defendant was described as part of 271, and therefore clearly not intended to- include the said strip, which the grantors had never claimed. The question of jurisdiction was raised here by appellant in oral argument. But we are precluded from considering that objection, -as it does not appear from the record to have been i-aised below. Code, art. 5, sec. 41, and cases cited in note to that section; Miller’s Eq. Proc., sec. 340, and note 7. In citing this statute we are not unmindful of the qualification to its application suggested in Shryock v. Morris, 75 Md. 77. Decree affirmed, with costs to- appellees.