Carroll's Lessee v. Granite Manufacturing Co. , 11 Md. 399 ( 1857 )

Bartol, J.,

delivered the opinion of this court.

The record in this case presents for our consideration two questions of evidence; these form the subject of the first, second, and third bills of exceptions.

In the first and third exceptions, the plaintiff offered to prove by William Dawson and by George Ellicott, that when the foundations of the granite factory were being dug, they informed Lansdale, the agent of the manufacturing company, and the workmen engaged in digging, that they were over their lines and on Mr. Carroll’s land; both the witnesses stated that they were not Carroll’s agents, nor authorised by him to make such statement.

In our opinion this evidence was properly rejected by the court. It was the declarations of third parties, strangers to the matter, and mere volunteers; and the evidence, if admitted, could not in any manner properly affect the issues in the cause, and was therefore properly rejected as irrelevant.

The second exception is taken to the ruling of the circuit court, in sustaining the defendants’ objection to a question propounded by the plaintiff to the witness, Evan T. Ellicott. The witness was called upon to state “where the coke oven stood, and what was its character and condition ?” He was clearly imcompelent to prove the location of the “coke oven,” because it does not appear from the plats and explanations, that he had pointed out to the surveyor the object located, as to which he was called to testify.” Mitchell vs. Mitchell, 8 Gill, 102. See Dorsey on Ejectment, 62.

But it is contended by the appellant, that it was competent for the witness to testify as to the character and condition of the coke oven, and that a part of the question being legal, it was error to sustain the objection.

In Whiteford vs. Burckmyer & Adams, 1 Gill, 140, the court say: “Nor do we think, where a question is proposed to be asked of a witness, which involves several distinct members, the courtis bound to select from it such members as might be admissible, if unaccompanied by others with which it is . connected, and say that such particular portions of the testimony are proper.”

We concur in that opinion, and think that the court, when called on to determine the legality of a question propounded to a witness under oral examination, must decide upon it in its entirety. The obligation rests upon the counsel propounding the question, to show that it is free from legal objection, and the onus does not rest either upon the court or the party objecting, to separate that part of it which may be legal from that which is illegal.

After evidence has been admitted, and an application is made to the court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion of the evidence which is illegal. And the same rule applies when an offer is made of a mass of evidence, complex in its character, and the whole of it is objected to. In such case, if any part of it be admissible, it is error to exclude the whole. This principle is established by the case of Budd vs. Brooke, 3 Gill, 220. See Waters vs. Dashiell, 1 Md. Rep., 455.

Without expressing any opinion, therefore, as to the legality of any part of the question propounded to the witness, it is sufficient for the purposes of the exception to say, that a part of it being illegal, it was properly overruled by tire circuit court.

This brings us to the questions raised by the prayers, and presented in the 4th, 5th and 6th bills of exceptions. These involve the construction of the third exception, or reservation in ■ the deed under which the plaintiff claims, which is in these words: “ Thirdly,, saving and excepting a small part of the said piece or parcel of land hereinbefore firstly conveyed, upon which the rolling mill improvements now in part stand.”

It is a concession in the cause, and the proof shows, that the piece of land in dispute is embraced within the’ lines of the property conveyed to the plaintiff, and unless it is covered by the exception, the plaintiff is entitled to recover.

'The land excepted is “a small part” (of the piece or parcel firstly conveyed,) “upon which the rolling mill improvements now in part stand.” There is evidence in the cause that there were three mills, which, were separate structures standing several feet apart, the most northern of these was the rolling mill proper, in which alone the rolling of iron was performed, the others were the puddling mill and the slitting mill, and the whole together were commonly called The Rolling Mills.

The rolling mill proper, stood in part upon the land covered by the plaintiff’s deed, on the small triangular piece designated on the plat by the letters ABC. This piece of ground is conceded by the plaintiff to be within the exception, and on ilia part it is contended, that by the true construction of the clause, its intent is thereby fully gratified, and that the defendant cannot claim any other piece as within the exception; Fust, because only one piece is excepted; and secondly, because the exception is confined to the part, whereon the building itself, called the rolling mill was erected. Neither of these positions is sound. The exception is not of one piece of ground, but it is of a part of what had before been conveyed; and if it be shown by the evidence, that the rolling mill improvements in fact, stood in part on several distinct and separate pieces of the land firstly conveyed, then each piece would be fairly within the exception.

The term, “a part,''’’ has reference to quantity, as loss than the whole, and properly construed, is not to be taken as meaning necessarily that the part excepted is in one piece or parcel. This is the usual and ordinary signification of the word; as when we say a part of Maryland is sandy, we are not to be understood as meaning that the sandy portion is to be found in one integral piece or parcel of the State’s surface.

Nor is the exception to be confined to the ground actually occupied by the building, which was the roiling mill proper. The words are, “rolling mill improvementsthough the three mills were separate structures, there is evidence showing that they were all under the same management, had the same payroll, and were used in performing different parts of the same process. The slitting mill and puddling mill prepared the iron for the rolling mill. “The iron went into one end of the establishment crude, and was carried through the various stages of manufacture through the others, before it was turned out as the completed article,” and the whole was commonly known as “The Rolling Mills.” Nor do we think that the true construction of the clause in question, confines its limits to the ground actually occupied or covered by the buildings called the Rolling Mills. It is more extensive, and embraces all the ground covered by any improvement connected with the rolling mills, and necessary or convenient for. their use, and actually used in connexion therewith. This might embrace not only the three mills, but also the coke furnace and wharf, with the intervening ground, if the evidence showed them to be rolling mill improvements in the sense in which we have described.

It seems to us, that no more correct exposition of the law governing the construction of the clause in the deed could be given, than is found in the instructions given to the jury by the circuit court, and stated in the fourth and sixth bills of exceptions, they were as follows:

“If the jury find the facts statéd in the agreement of counsel, and that the improvements offered in evidence were made by the owners of The Rolling Mills, and were used in connection therewith, and that at the date of the deed from the Union Bank to Carroll, the said improvements stood upon the land for which the defendant has taken defence, then, by the true construction of said deed, the plaintiff is not entitled to recover.” “And that any structure made by the expenditure of . labor or money by the owners of The Rolling Mills, on the property in controversy, intended to make the same more useful or valuable, and actually used in connection therewith, and visible to the eye at the date of the deed from the Union Bank to Carroll, are improvements within the true construction of said deed.”

The principle announced in these instructions is sustained by an unbroken current of authorities.

See Whitney vs. Olney others, 3 Mason, 280. In 13 Metcalf, 114, the court say: “The rule of construction is well established, that by ihe grant of a mill, the land under the mill and adjacent thereto, so far as necessary to its use and commonly used with it, will pass by implication. And the same rule of construction applies to an exception in a grant.” See also 15 Maine, 218. 16 Ibid, 63. 3 New Hamp., 190.

The views we have expressed are not in conflict with the rule of law, that, in the construction of deeds, they must be taken most strongly against the grantor, and in favor of the grantee.

This principle has been invoked by the appellant in support of bis construction, and there is certainly no one better established. But that rule is only to be resorted to, when the words of the deed are doubtful in their meaning, or susceptible of more than one construction. In this case, we consider the words of the exception in the deed are free from uncertainty, and admit of but one interpretation. One more objection urged by the appellant in the argument remains to be considered. It is contended, that no improvements are meant by the deed, except such as were erected or elevated, and that it does not refer to such as had been abandoned, and were fallen into dilapidation and decay, or which were merely spread upon tire surface for the purpose of filling up the wharf, or making the yard and ground, adjacent to the mills, more fit for the use and convenience of their occupiers. This argument is based upon the use of the words, “now stand, ” in the deed. To our minds the argument appears more ingenious than solid. The word standing, often signifies placed or situated; thus we say London stands on the Thames. And, in the clause before us, such we consider to be its true meaning. Of the land conveyed, that part is within the exception, whereon any of the rolling mill improvements then were situated, or placed, or remained.

What has been said, dispenses with the necessity of a more particular notice of the several prayers offered by the plaintiff below. We concur in the propriety of their rejection by the circuit court.

Judgment affirmed.

Ecclbston, J., dissented.