Henry Hammond's Lessee, vs. William Inloes and others, 4 Md. 138

Tuck, J., delivered ,the opinion of this court. We are of opinion that the Court of Appeals has already settled most of the questions presented by the record before us. 11 Gill & Johns., 351. 1 Gill, 430. 6 Gill, 121. It is said, however, on the part of the appellants, that in view of the large amount of property involved in this case, and in another in this court, and of other property held under similar titles, it would not be improper for us to revise and overrule the opinions of our predecessors if we should think that they erred in deciding the cases which we have mentioned.

The appellants found their right to recover upon the act of 1745, ch. 9, and other acts and ordinances of the city of Baltimore, in connection with their title as owners of part of a tract of land called “Mountenay’s Neck.” These have received a construction without which the grant of “Mountenay” can be of no service to the plaintiffs in maintaining their action ; yet, while they contend that that

interpretation must be adhered to, as the law of the ease, by which valuable improvements made by others under a mistaken view of the law, and without any cost to the appellants, will be secured to them, unless the claim be defeated on other grounds, we are told that other opinions of the same learned tribunal pronounced in these cases, after full argument and consideration, are not to be regarded as authority. We have not been able to discover a sufficient reason for making this an exception to the almost uninterrupted practice of all courts, of receiving their own decisions as of binding force.

We are not prepared to say that cases will not arise in which we shall feel ourselves constrained to, withhold our assent to adjudged cases. The reported decisions show that this has been done, and it may occur again. But, in the language of Mr. Justice Earle, whose opinion has been invoked by the appellant’s counsel on this question, “the solemn adjudication of an appellate court of last resort, ought, on general principles of judicial propriety, to he approached with caution, and perhaps they should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed.

On a second trial in ejectment between the same parties, and those claiming under them on the same subject, matter, I should say they ought to be considered conclusive, unless, which is hardly a supposable case, glaring injustice lias been done, or some egregious blunder has been committed. But to give the binding decision those conclusive qualities it ought, to be explicitly declared, and perfectly understood, and, to become the law of the case, it ought definitively to settle the rights of the litigant parties. If an exposition is given to a will or deed (and so of

an act of Assembly) fully defining the rights of the parties, or any other opinion is expressed settling' the title to the thing in dispute between them, it should be deemed irrevocable, and never again touched, where the same persons and those claiming under them, are concerned in the contestation. If the Court of Appeals have disposed definitively of the subject, and fully and explicitly determined the rights of the parties, this court ought to yield to the judgment, whatever our individual opinions may be of its correctness.

This is not, however, in my apprehension the character of that decision &c. 5 Har. and Johns., 278, Hammond vs. Ridgely. We do not understand the counsel for the appellants as denying that, if on a second appeal it appears that the court below ruled in conformity with the principles settled by the previous decision, their judgment must be affirmed. It is manifest that in such a case no error can be imputed to the inferior tribunal. 7 Gill, 244, 333. 1 Md. Rep., 394. But it is said that we are not concluded by the opinion in Wilson vs.

Inloes, though involving substantially the same titles and relating to property in the same city, and similarly situated. The Court of Appeals in 1 Gill, and 6 Gill, followed the decisions in 11 Gill and Johns.; and so in 6 Gill, they considered that what had been settled in 1 Gill was no longer open for consideration.

If as a general rule upon principles of judicial propriety, and in view of the importance of having the law fixed and certain, a court respects its own decisions even in analogous cases, there would seem to be more reason for adhering to them where the facts are the same, though between different parties. These cases demonstrate that neither the counsel nor the court were insensible to the importance of the subject before them. Three of the four judges who sat in Wilson vs. Inloes, 6 Gill, had decided Casey's appeal in 1 Gill.

After full argument and consideration the judgment of the court below was affirmed, in which C. J. Archer had united, so that we have the authority of five of the judges for what was there decided. Far from there being any reason, on the ground of public interest, or manifest error, for our reviewing that opinion, we feel no difficulty in recognizing it as an authoritative decision. Whatever, therefore, was decided in 1 Gill and 6 Gill must be taken as the law, unless it appears that the record presents a materially different case.

The lessors of the plaintiffs, Wilson and Casey, claimed certain lots in the city of Baltimore, shown by the plat at page 487, 1 Gill, as incident to their ownership of parts of a tract of land called “ Mountenay's Neck," patented in 1663, which lots had become fast land by improvements made into the water, under the act of 1745 ch. 9, sec. 10, and other acts and ordinances of the corporate authorities of Baltimore, mentioned in the proceeding's.

It is conceded that, no part of Che property in controversy is embraced within the lines of “Mountenay.” The Court of Appeals in 11 Gill and Johns., 351, decided, that the act of 1745, granted a franchise to the owners of water lots ; that the vested right of improvement thereby conferred, and all improvements when made, no matter by whom, enured to the benefit of those claiming under the senior grant in that case, that is to say, that they became incident to “ Mountenay’s Neck,” and not to “ Fell’s Prospect” which was patented after the passage of the act. ; and also that the improvements authorised by that act were those to be made by improvers in front of their own lots, not of their neighbors, asilad previously been settled in 5 G. & J., 308.

The defendants, in both cases, afterwards, adapting their defence to this construction of the act of Assembly, and to show that the owners of “ Mountenay” had no authority themselves, to extend their water line, and could not, therefore, claim the improvements made by others, offered in evidence the patent of “ Bold Venture” granted to Oulton in 1695, by which, as they said, the State had, before the legislative grant of 1745, parted with all interest in and right over the land adjoining the water line of “ Mountenay ” as shown by M. N. on the plat.

The court decided that the State had authority to make this grant although the land was covered by navigable water, and that the patent was not void for any reasons assigned by the appellant’s counsel, and which have again been urged before us.

The necessary consequence of this pretension of the defendants, if sustained by the court,, would be to defeat the plaintiff’s actions, unless they could show that the State had, before the passage of the act of 1745, become reinvested with the title to what had been previously granted to John Oulton ; because, if the State did not then own “ Bold Venture, there was nothing on the water line M. N. of “Mountenay,” on which the act of 1745 could operate in favor of the owners of that tract. They could not have extended their improvements beyond that line without encroaching upon the property of their neighbors.

Accordingly the plaintiffs offered evidence to show that “Bold Venture” had escheated before the year 1745. The Court of Appeals, however, decided that such was not the effect of the evidence offered on this point, and that, as the act of 1745 did not grant any right acquired by the State subsequently to its passage, the pretensions of the plaintiffs, as derived under that act, must yield to those claiming under “Bold Venture,” patented in 1695.

The defendants in this case had prayed the court to instruct the jury that “ if they find that the tract called ‘Bold Venture' was granted as given in evidence by the defendants, and that the same is truly located on the plats, then the patent of ‘Mountenay's Neck' gives no title to the lessor of the plaintiffs, to the lot of ground for which the defendants have taken defence.” This instruction the Court of Appeals (1 Gill 511,) held, should have been granted. “ Bold Venture" embracing all the land between the line M.

N. and the city dock, covers, of course, the ground now in controversy, as effectually as if it had been fast land at the time “Bold Venture" was originally surveyed;” and (on page 512) “‘Bold Venture' bars the plaintiff’s recovery against any of the defendants ;” “ we approve the refusal to grant the plaintiff’s prayer in the fifth exception,” which was that upon the hypothesis there stated, the plaintiff was entitled to recover against all the defendants except Inloes. In Wilson vs.

Inloes, 6 Gill, the defendants offered three prayers, identical with those offered by them in the present case, as to which this court said, (page 171:) “In granting the three prayers of the defendant the court below merely carried out some of the undeniable rules of our ejectment law, and sustained the principles decided in Casey vs. Inloes, 1 Gill, 430.” These extracts cleaily indicate that the Court of Appeals were of opinion that “Bold Venture" was a complete bar to the plaintiff’s actions, so long as they failed to show that it had escheated to the State prior to 1745.

But the counsel for the appellants contend that if this had been the view of the court they would not have sent the case back for a new trial, and they rely upon what is said by the court at page 510, as evidence that the court did not intend to conclude them by the opinion and judgment in that case, viz : “ as far as regards any conflict of rights between these parties, Inloes and the other defendants had, under the act of 1745, a right to extend westwardly, in front of their lots, to the line of the eastern end of the city dock, extended northwardly • that is to say, to the west side of Caroline street, and no further ; and the lessor of the plaintiff had the right to extend her grounds to the city dock, at the south side of Lancaster street.

Upon the foregoing views the plaintiffs’ fifteenth prayer ought to have been granted.” Although a procedendo will not be granted when this court can see that the plaintiff must fail in his action, it does not follow that the granting such writ implies that he must ultimately succeed ; and it could not have been discovered, from an inspection of the record, that the plaintiffs would not on another trial be able to meet successfully the defence on which the defendants had relied, by removing “Bold Venture” out of their way.

As to the passage of the opinion above quoted it may be remarked that wo must consider what the court said in connection with the subject matter of the prayer then under consideration.

They were disposing of the exceptions in their order; not one word is said of “Bold Venture” in that part of the opinion, but it treats of a different portion of the evidence, and the rights of the parties to improve in front of their lots under the act of 1745, and without reference to the grant, of “Bold Venture.” But when the court, in order, reach the prayers of the defendants we perceive that they consider “Bold Venture,” in the face of all the testimony, as a flat bar to the plaintiffs’ recovery ; and, therefore, approve of the court’s refusal to grant their second prayer in the third exception, and their prayer in the fifth exception, in which that title had not been noticed by the plaintiffs.

But it is contended that this case is now different in material respects, from what it was on the trial of the former appeal; and this difference is supposed to consist in the withdrawal of all the testimony relating to the escheat of “Bold Venture,” and to the death of Oulton ; and to the boundaries of said pact, and of the patent of “Roger’s Inspection,” and all papers relating thereto ; and in the offering of the act of 1773, ch. 4, which it is said was not before in evidence. The case on the part of the defendants is the same.

It is manifest that the abandonment of all questions as to the locations of the title papers cannot alter their construction or effect upon each other. On the former appeal it was held that the evidence then offered to prove the escheat of “Bold Venture” before 1745, was insufficient for that purpose.

It is now contended, that in the absence of that testimony, and upon the present condition of the record, it may be inferred that Oulton died intestate and without heirs before 1773, when, as it is said, that part of “Mountenay” was added to Baltimore town, and the privileges of the act of 1745 were extended over it.

According to this view of the plaintiff’s case they abandon the act of 1745, except as evidence to show what “immunities and privileges” were conferred upon the owners of “Mountenay” when it became part of Baltimore town under the act of 1773, and they claim title from the time of the passage of that act. Having, as we suppose, stated substantially the case as now presented we proceed to dispose of the prayers, all of which on the part of the plaintiffs, in our opinion, were properly refused.

As to the first, we deem it unnecessary to inquire whether the present appellants were properly made parties, after the death of Mrs. Casey, because, this prayer being obnoxious to other objections, it is proper to dispose of it on these grounds. The object of the act of 1745, (and the effect of that of 1773, according to the view now taken by the appellants’ counsel) was to authorise the owners of water lots to acquire a right to vacant land covered by water, without applying to the land office in the usual way.

It was a legislative grant of a franchise for and in consideration of certain improvements from which material and important benefits would result to the public. These improvements could have been made only on vacant property of the State, such as she could rightfully grant. The former decisions of this court have conclusively settled that this right did not belong to the owners on the water line M. N. of “Mountenay,” because the land outside of and adjoining that line had been previously granted by the State to John Oulton, in the legitimate exercise of her authortty.

This prayer assumes that when this part of "Mountenay” became part of Baltimore, under the act of 1773, the privileges conferred by the act of 174-5, attached to and became vested in the owners of water lots, oil that line; and that it operated as a grant to improve in front of their lots on that line, and that, therefore, if the jury should find certain facts enumerated in the prayer, the plaintiffs were entitled to recover, without the prayer’s taking any notice of the patent of “Bold Venture,” or submitting to the jury any hypothesis upon which they were required to find, as preliminary to the plaintiff’s title, that Quiten’s had become extinct prior to the act of 1773.

It was argued, on the part of the appellants, that what the State does is presumed to be right until the contrary appears, and that wo must, therefore, suppose that the State had title to this property when that act passed. If we were now dealing with au act of Assembly professing in terms to grant a particular parcel of land the argument might apply. But there is a plain distinction between such

an act or a patent specifying the thing granted, and

an act which grants a right generally, and operates merely in favor of those who may .subsequently show themselves entitled to the benefit of its provisions, as being in a condition to avail themselves of the franchise. An escheat patent is prima facie evidence that the land was liable to escheat at the date of the warrant, and

an act of Assembly reciting that the property had escheated, and making a grant, would have the same effect. Suppose, instead of this act of 1773, the appellants had relied upon a patent of the same date granting the land in dispute, but silent as to Qulton’s title, and that the question was between the patent of 1695 and the one now supposed, (as it is here between that patent and the supposed legislative grant of 1773,) can it be doubted that the elder grant would prevail, if relied on by the defendants, unless it appeared that the title to “ Bold Venture” had gone back to the State before 1773?

If, however, the junior grant recites an escheat, the elder patent must give place to it, unless it be shown that the land had not escheated. The onus of proof is shifted. Hall vs. Gittings, 2 H. & J., 122. A plaintiff must recover upon his own title. If he shows a case entitling him to recover, the defendant must answer that case or submit to a verdict.

But here the plaintiffs’ pretensions, so far as founded upon the grant of "Mountenay,” and the act of 1773, were repelled, by showing that before 1773 the State had parted with all that she had owned in front of “ Mountenay." As a reply to this, the prayer asserts that Guitón had died intestate and without heirs, for which, as a presumption of law, we think there was no warrant; and if it was designed to have been found by the jury, it was error not to have been so submitted to them. “It is a general presumption, that things once proved to have existed in a particular state are understood as continuing in that state, until the contrary be established by evidence, either direct or presumptive.

Thus, where seisin of an estate has been shown its continuance will be presumed.” Best on Presumptions, ch. 6. But can this be said to be an open question?

It appears that the plat of the addition to Baltimore was before the court on the former appeal in this case, and the act of 1773 was necessarily, also, before the court; because, apart from the reference by the plat to the act under which it was made, operating as a grant of the public domain, and affecting the rights of navigation and fishery, by allowing improvements to be made out into navigable water, we think it must have been judicially noticed by the court as a public law. But in the case of Wilson vs. Inloes, 6 Gill, both the act and the plat were in evidence.

It cannot be said that the point now made was passed over without notice. The notes of the counsel, taken by the reporter, show, that the title of the plaintiffs was strongly pressed in the argument before this court, in connection with this plat and act of Assembly. True, the court does not advert to that portion of the argument, but we cannot suppose that the plaintiffs would have been denied the benefit of it, if the court had considered that the patent of “Bold Venture” had been fully met, and put out of the case.

We are disposed to think that the title now set up was classed by the court with those points on which it was not deemed necessary to express any opinion, because they had been settled in 1 Gill. See 6 Gill, 159. The second, fourth and eighth prayers relate to the question of outstanding title. We do not think that the doctrines of the law applicable to this defence in ejectment can avail the plaintiffs in this case.

The plaintiff must always, in the first instance, make out a legal and possessary title to the premises in question, and the defendant’s evidence may be confined to falsifying his adversary’s proofs, or rebutting the presumptions which may arise from them. He need not offer any evidence of title in himself, or of title in a third person. It is sufficient if he makes it appear to the jury that a legal and possessary title does not subsist in the plaintiff. Adams on Ejectment, 285. 7 G. & J., 62. 2 Greenlf. on Ev., sec. 331.

And this the defendants here do, by showing that at the time when, the title is said to have passed from the State, by the act of 1773, she had no title which she could have conveyed. There can be nothing clearer than that a plaintiff must be defeated, if it appears that the party under whom he claims the land in dispute had no title, no matter in whom the right may really be. But if he shows a prima facie case, the burden of proof is thrown upon the defendant.

As to the absence of proof of possession mentioned in the fourth prayer, it may be observed that the nature of the property was not such as to admit of possession and acts of ownership in the ordinary way. The patentee of “Bold Venture” could only claim in subordination to the rights of the public, as to fishing and navigation. And as this property was not made fast land until a few years before the commencement of the suit, we do not perceive how he could have claimed the possession before that time.

The Court of Appeals have said, that the defendants could not have held it adversely by possession for this very reason. Whilst he was under no obligation to have made fast land out of the water, others had no right to invade his property. 1 Gill, 497. The third, ffih and sixth prayers treat the defendants as intruders, in the absence of proof of an available outstanding title. Much of what we have said applies to these; from which it follows, that, as the plaintiffs did not show a sufficient title, they cannot require proof of title in the defendants, or any third person.

The fifth and sixth were properly refused for another reason. The former does not specify the property to which it was intended to apply, to wit; “the square from --street to the water,” neither the square nor the water being mentioned; and as the sixth is predicated on the fifth, it also was properly refused. The seventh prayer was properly refused, because no act of 1816 had been offered in evidence; and if so, the particular act of that session is not specified in the prayer. The ninth prayer is obviously wrong, because it assumes the escheat of “ Bold Venture” upon the death of Oulton without issue.

But a similar point to the one designed to have been presented by this prayer is raised by the tenth, which asserts that the act of 1773 is itself evidence, connected with the facts stated in the prayer, that John Oulton had died intestate and without heirs before 1773. The Court of Appeals, with these facts before them in the former trials, did not recognise this pretension of the appellants, even when supported by the direct evidence offered on the question of escheat. We cannot perceive that the plaintiffs’ case is made stronger by the absence of this testimony.

The act of Assembly is not evidence, per sc, of any thing in regard to John Oulton. It can only avail the plaintiffs as proof of certain facts of which there is no legal presumption, though they need not be established by direct proof. Nor does the law presume that a person who is proved to be dead left no heirs. The death of a person may be presumed after a long lapse of time, as was done in Doe on the demise of Oldnall, vs. Deakin and Wooley, 3 Carr. and, Payne, 402, where the persons who were said to be dead, would, if alive, have been one hundred and fifty years old.

When persons are known to have survived ninety and an hundred years, we cannot say that others have died at an earlier age, without some evidence on the subject. And, in addition to the death of Oulton, the jury were to have found, by this prayer, that his whole race was extinct before 1773. For this, we think, there was not sufficient evidence.

In an action of ejectment the lessor of the plaintiff claimed under a person who died without issue, but who had had a younger brother, who many years before went abroad, and, according to repute in the family, had died abroad, and the witness never had heard in the family that he was married.

This was prima facie evidence of his having died without issue. “But where the death only is proved in snch case, without some negative proof of the existence of issue, it is not sufficient, the plaintiff being bound to remove every possibility of title in another, before he can recover against the person in possession.” Richards vs. Richards, 15 East, 293, note. 2 Greenlf. on Ev., sec. 534. So far as this prayer is predicated on an absence of claim of title by persons representing Oulton, the character of the property, as before remarked on the fourth prayer, is a sufficient reason for its rejection.

From these views, it follows that we concur with the county court in granting the three prayers of the defendants, in doing which we but sanction what the Court of Appeals has said in the other cases substantially the same with this. Judgment affirmed with costs.