Houck v. Loveall , 8 Md. 63 ( 1855 )

Tuck, J.,

delivered the opinion of this court.

If the defendant below had counter-located the location, by the plaintiff, of “ Brown’s First Attempt,” the ruling of the court would have been correct, for the reasons assigned in the exception. But we think there was no controversy as to the true locatipn of the patent for that tract, and that it ought to have been received in evidence. The certificate accompanying the plat does not verify the papers called explanations, purporting to contain the defendant’s locations and counter-locations. These are separate from the plat, not referred to in the certificate, nor signed by the sheriff and surveyor. They appear to be unfinished certificates of surveys and locations, made subsequently to those on the plat, and cannot., in their present, form, be treated as possessing tbe attributes ascribed to them by the appellee’s counsel. We are not to be understood as intimating that explanations must always be certified and signed, when placed on another paper than the plat. They may be referred to, and returned with the certificate and plat, and when so identified will be properly considered as part of the proceedings under the warrant. We have carefully examined the plats and explanations in the case of Mundell vs. Perry, 2 Gill & Johns., 193, and find that some of the remarks made in reference to their incompleteness apply with equal force to the present record.

As the record will be remanded, it is proper to add a few words us to locations of this kind. It is well settled that calls are to be gratified in disregard of course and distance, and that other tracts, when called for, are as imperative as boundaries. This is abundantly shown and explained in the Maryland decisions cited by the counsel for the appellee. But in such cases it is not always necessary to locate on the plats the entire tracts mentioned. It is sufficient if the lines called for be laid down, though in ascertaining the correct position of these lines it sometimes may be necessary to survey the whole of the tract. Mitchell vs. Mitchell, 8 Gill, 98.

In actions of this description, where defence is taken on warrant, the plaintiff must locate the place of the trespass, and show it to be within the lines of the land on which he alleges the act to have been committed. As the position of “Brown’s First Attempt” depends on that of other tracts mentioned in the patent, and as the calls for parts of these other tracts must be gratified, we cannot perceive how the jury can determine that the locus in quo is correctly shown on the plats, in the absence of evidence as to the lines called for; and it is quite clear, that no such evidence is admissible unless they are located. Funk vs. Hughes, 5 Gill, 315.

The second exception assumes that, in trespass quare clausum fregit and defence on warrant, if the plaintiff cannot make his locations available at the trial, he may abandon them altogether, and prove his possession of the locus in quo and the trespass thereon, in the same manner as if the plea wort! non cul. merely. If this were the law the defendant could not, in any case, derive benefit from the defence on warrant. That it is not, however, is manifest from the authorities cited on the part of the appellee, as well as the character and object of the warrant of resurvey in such cases, 5 Gill, 315. We speak of the law as it was before the passage of the act of 1852, ch. 177,

The second exception is affirmed, but the judgment must be reversed on the first, because, in the absence of a counter-location of the patent for “ Brown’s First Attempt,” it should have been admitted in evidence.

Judgment reversed and procedendo ordered.