Clary v. Kimmell

Goldsborough, J., delivered the opinion of this court. An action of trespass for breaking and entering the closes of the plaintiff, now appellant, and cutting down his trees, resulted in the appeal which becomes the subject-for our consideration. The plaintiff declared for a trespass on a tract of land, formerly called ííCulloden,” now called “'Partnership,” and one other close, called the resuryey on, “Drummine,” in Frederick county. The defendant pleaded not guilty, and took defence on warrant. A warrant of resurvey was issued, and locations were made for both the plaintiff and defendant. At a subsequent term, the plaintiff obtained leave to amend the pleadings and plats. He then declared anew for trespass committed upon his closes, “Friendship,” and “Dispute Continued,” and “Partnership.” The defendant again pleaded not guilty, and took defence on warrant. A second warrant of resurvey was issued, by virtue of which the plats were amended, and returned with the certificate of the sheriff and surveyor, but no table of explanations. [254] At the trial of the cause, the plaintiff proposed to offer in evidence, and to establish the locus in quo in which the alleged trespass was committed, a patent for a tract of land called “Friendship,” to which patent, as offered in evidence, the defendant objected as inadmissible, on the ground that it was not properly located on the plats, in this, that it did not appear from said plqts, or any explanations of the sheriff or surveyor accompanying the plats, that the said patent had been located according jo the courses and distances mentioned and contained therein! There is, therefore, nothing to show to the court, that tli'e lines of the patent, when correctly laid down, would run in the manner delineated on the plats. We consider it well established, by a uniform current of authorities prior to the Act of 1852, ch. 177, that where a plaintiff in ejectment or trespass quare clausum fregit, made a location, and the defendant did not counter-locate, the plaintiff’s location was held to be admitted, and, under- these decisions, the plaintiff would be entitled to recover. But, by the 8th section of the above Act, it is provided that a counter-location shall not be “necessary to put the party locating any tract of land, line or object, on the proof of such location; and the opposite party may controvert the same, without any counter-location.” Forasmuch as this. Act gives to a defendant the right to take defence on warrant, we are of opinion that a plaintiff must make a location of any title paper he offers in evdence, in strict conformity with the calls, or courses and distances, mentioned in the title paper. We are not willing to disturb the system of location existing prior to the Act of 1852, regarding that system as the matured fruit of legal experience, and highly conducive to the settlement of the complicated questions incident to land cases. It was said by the court in Mundell vs. Perry, 2 G. & J., 205, that “-the object and intention of introducing plats in the cause, is to give certainty to the claim and defence, and to apprise the parties, that the location of other lands are to be used to illustrate and support the location of those under which they claim title. It is to [255] prevent surprise, and therefore it has been the uniform practice of the courts, to reject evidence as to any object unless it is located on the plats.” With equal propriety may this rule be applied to an imperfect or defective plat of a title paper, as in this case. (Decided February 18th, 1862.) In the case of Budd vs. Brooke, et al., 3 Gill, 228, the doctrine laid down by this court is equally emphatic; and directly applicable to the case before us. We therefore concur in the ruling of the Circuit court, in rejecting the evidence contained in the first exception. The parol evidence,- mentioned in the second exception, was also properly rejected. The case of Houck & wife vs. Loveall, 8 Md. Rep., 69, is conclusive of the point raised by this exception; and the Act of 1852, ch. 177, has not, in our opinion, altered the pre-existing law in this respect. The reasons which control our opinion as to the first exception, are equally applicable to the third; therefore we concur in the ruling of the court, in rejecting the evidence mentioned therein. Judgment affirmed.