Ridgely v. Bond

Goldsborough, J., delivered the opinion of this court. This is an action of trespass quare clausum, fregit, instituted in the circuit court for Howard county, by the appellees against the appellant. The appellant pleaded three pleas, which were treated as a plea of not guilty, and the appellees, by their general replication, joined issue thereon. A single exception was taken, from which it appears that the controversy arose in consequence of the appellant taking possession of, enclosing and exercising acts of ownership over a parcel of land mentioned in the declaration. After the plaintiffs had submitted their evidence to the jury, they offered the following prayers: 1st. “The plaintiffs’ counsel pray the court to instruct the jury, that if they find that Thomas Hobbs, Senior, was in his life time, and for many years, in the peaceable possession of the land and premises described in the declaration, claiming exclusive title thereto prior to the 6th day of May 1816, and further find that on said 6th day of May 1816, the said Thomas Hobbs made and executed the deed offered in evidence, to Dr. Henry Howard, and said deed was duly acknowledged and recorded, as it purports to be; and that the said Dr. Howard departed this life thirty or forty years ago, leaving no widow, but left several children, his heirs at law, and tire said Rebecca J. Bond was one of said children; that she intermarried with the said Joshua B. Bond about the year 1840, and that all of the children of said Dr. Howard died before the year 1840, leaving no issue, no one of them having been married, except the said Rebecca J. Bond, and that she is the only surviving child and heir of the said Dr. Howard; and if the jury further find that the said defendant broke and entered the close and premises mentioned in this proceeding, cut the timber and wood off and from the same, as alleged in the declaration, and carried the same away, and appropriated it, or the proceeds thereof, to — 22 — his own use; and further find that the defendant cultivated said land after the wood and timber were carried away as aforesaid, for and during the period of time mentioned by the .witnesses, and appropriated the issues and profits thereof to his own use, then their verdict ought to be for the plaintiffs, for such damages as they shall find they have sustained.” 2nd'. “And the plaintiffs further pray the court to instruct the jury, that if they find the facts enumerated in the plaintiffs’ first prayer, and further find that the defendant broke and entered the close aforesaid, and committed the trespass aforesaid, knowing it was not his, the defendant’s land, then they are not limited to the actual amount of the damages committed, if they should find that any have been committed, and may find such further damages as the facts and circumstances accompanying such trespass may warrant.” The court granted both of these prayers. The defendant excepted, and the verdict and judgment being for the plaintiffs, he appealed to this court. Our duty is to regard the ruling of the court below in granting the first prayer in the exception, by referring to the testimony contained in it. Whatever other facts may have been disclosed in the trial below, it was in the power of the appellees, at the trial, to have availed themselves of them. Not having done so by their incorporation into the prayer, to the granting of which the appellant excepted, it is now too late. To maintain an action of trespass quctre clausum fregil, the plaintiff must either “show title to the land on tvhich the trespass was committed, or that he was in actual possession thereof at the time of the trespass.” See Norwood vs. Shipley, 1 H. & J., 295. It is not pretended, nor is there any evidence to show, that the plaintiffs were in possession of the land in controversy at the time of the alleged trespass. But it is insisted by the appellants that they show color of title by establishing the fact, that Rebecca J. Bond, one of the appellees, was the only heir at law of Dr. Henry Howard, and that Dr. Howard obtained the land in controversy by deed from Thomas Hobbs, in 1816. — 23 — (Decided February 28th, 1861.) But does the evidence embraced in the prayer establish Hobbs’ title? It was a mere possessory title that Hobbs was, in his life time, and for many years, in the peaceable possession of the land, claiming title thereto. These many years might have been for any indefinite number less than twenty years, the period fixed by law when an adverse possessory title only becomes mature. We do not regard the Act of 1852, ch. 177, so far as it may apply to this case, as altering the Jaw in any other respect than enlarging the evidence to prove adversary possession, certainly not to diminish the time in which to establish a possessory title. For these reasons, and because it was calculated to mislead the jury as to what was a possessory title, we think the court erred in granting the prayer. We concur in the ruling of the court in granting the second prayer contained in the exception. The question of damages being properly submitted to the jury, it was their province, in assessing the damages, to combine in their verdict damages for the conduct of the appellant for entering the premises, knowing they were not his, and for his subsequent acts, after such entry. Judgment reversed and procedendo awarded.