Adkins, J.,
delivered the opinion of the Court.
This is an action of trespass
guare clausum fregit.
Margaret G-. Ditto, appellant, was plaintiff, and Sherman E. Wolf, appellee, was defendant. They own aidjoining lots on the northeast side of Main Street in the town of Boonsboro. The dispute is over a strip, spoken of as an alley, three or four feet wide to the north of appellant’s dwelling. It appears to be enclosed with appellee’s lot. At its entrance is a gate built by appellee. The fence was built in 1890 by 'Howard Flook, whose wife then owned the Wolf lot, there being no fence there when they bought it. Flook testified that when he built the fence he “intended to build it upon the line as called for by our deed.”
Hh change was made in the location of the fence, as it was built by the Flooks, during their occupancy of the property.
Harry R. Gruber purchased from the Flooks in 1916. Mrs. Gruber testified: “We lived there from 1914 to 1915; we lived in it about two years before we bought it. I only saw the property since by driving past. There was no change in the fence during the time I lived there. The fence between Mr. Welty’s (notv Ditto’s) and our property ran from the comer of Mr. Welty’s house to the end of the yard, and then a little off-set, ran straight up to the stable, about two or two and one-half feet, we never measured it. The fence looked like it was in the same place as it was when I moved there. I left the fence as I found it.”
Catrl Wilhide purchased from Gruber in 1919 and after-wards steld to Sherman E. Wolf, the appellee, and his wife. Wilhide testified: “During the time I occupied the Wolf property, the fence became bad and Mr. Ditto' and his son rebuilt the fence. "x‘ * * We agreed for Mr. Ditto and his son to rebuild the fence, which they did, and I paid my half. I could not swear where they put it. The fence looked to me like it was in the same place when I left as when I moved there.”
It is not sufficiently certain, therefore, from the evidence, that the fence at the time of the trial was located where it was built by Flook in 1890, to enable the court to say as a matter of law that title to the strip in controversy had been acquired by adverse possession, even if, under the facts of this ease, the possessioh of previous owners can be tacked to that of appellee, which we do not decide.
There are two bills of exception. The first was to the striking out of certain testimony as to the use of the alley by the public. .There was no reversible error in this ruling, as there was no offer to' prove that the use of the alley by the public to get to appellee’s store was by his invitation.
The second exception was to the granting of defendant’s first prayer, which instructed the jury “that under the pleadings in this case there is no evidence legally sufficient to entitle the plaintiff to recover.”
Strictly construed, the prayer is a variance prayer, and as such it is too general, as it do'es not state the points wherein
it is claimed the variance exists. But, apart from the form, we find no variance. Trespass
quare clausum fregit
is a possessory action and it was necessary, in order to maintain it, for plaintiff to show possession by him of the particular strip in controversy, o:r constructive possession of it by reason of the actual possession of part of an entire tract described in a deed, of which it is claimed the land in dispute forms a part. 1 Poe,
Pl. & Pr.
(4th Ed.), sec. 245. We think there is evidence of such constructive possession.
The prayer, however, was probably intended as a demurrer to the evidence. Treating it as such, in our opinion there was error in granting it. We think there is evidence from which the jury could have found title in the plaintiff and invasiota. by the defendant.
In 1859 the said two adjoining lots together formed lot Ho. 40, which was owned by Tiras Welty and others, who, by their deed of April 4th, 1859, conveyed it to- Lewis M. Johnson. In that deed the lot is described as being on the ncrtheast side of Main Street, bounded on the north by the heirs of Peter Heck, deceased, on the south by the Beformed Church, on the east by a back alley, and on the west by Main Street, being known as lot Ho. 40, and fronting on Main Street 82% feet and running back 264 feet to the alley in the rear.
Plaintiff offered the deed from Henry Heck and wife to Peter Heck, dated December 26th, 1840, and one from Henry Heck dated June 30th, 1838. The record shows that .the Heck deed first mentioned conveyed the southern half of lot Ho. 41, which is 41 feet and 3 inches in width, and 264 feet in depth. While the record does not show it directly, it is clear, from references in deeds contained in the chains of titles to the two halves of lot No. 40, that the Catholic Church property referred
t-o-
in said deeds is the southern part of lot No. 41.
Louis Johnson and wife, by deed dated March 23rd, 1882, conveyed to Theodore F. Welty, extending 41% feet ota the northeast side of Main Street adjoining on the south the German Beformed Church property (subsequently the United
Brethren parsonage property), and by deed dated March 23rd, 1885, the said Louis Johnson conveyed to' Annie E. Johnson the northern half of lot Ho. 40, 41% feet, adjoining on the north the Catholic Church and on the south the part of the lot he had conveyed to the said Theodore F. Welty.
The two parts of said lot Ho-. 40 come down, respectively, by various mesne conveyances, the northern half to appellee and the southern half to appellant.
Samuel E.
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Adkins, J.,
delivered the opinion of the Court.
This is an action of trespass
guare clausum fregit.
Margaret G-. Ditto, appellant, was plaintiff, and Sherman E. Wolf, appellee, was defendant. They own aidjoining lots on the northeast side of Main Street in the town of Boonsboro. The dispute is over a strip, spoken of as an alley, three or four feet wide to the north of appellant’s dwelling. It appears to be enclosed with appellee’s lot. At its entrance is a gate built by appellee. The fence was built in 1890 by 'Howard Flook, whose wife then owned the Wolf lot, there being no fence there when they bought it. Flook testified that when he built the fence he “intended to build it upon the line as called for by our deed.”
Hh change was made in the location of the fence, as it was built by the Flooks, during their occupancy of the property.
Harry R. Gruber purchased from the Flooks in 1916. Mrs. Gruber testified: “We lived there from 1914 to 1915; we lived in it about two years before we bought it. I only saw the property since by driving past. There was no change in the fence during the time I lived there. The fence between Mr. Welty’s (notv Ditto’s) and our property ran from the comer of Mr. Welty’s house to the end of the yard, and then a little off-set, ran straight up to the stable, about two or two and one-half feet, we never measured it. The fence looked like it was in the same place as it was when I moved there. I left the fence as I found it.”
Catrl Wilhide purchased from Gruber in 1919 and after-wards steld to Sherman E. Wolf, the appellee, and his wife. Wilhide testified: “During the time I occupied the Wolf property, the fence became bad and Mr. Ditto' and his son rebuilt the fence. "x‘ * * We agreed for Mr. Ditto and his son to rebuild the fence, which they did, and I paid my half. I could not swear where they put it. The fence looked to me like it was in the same place when I left as when I moved there.”
It is not sufficiently certain, therefore, from the evidence, that the fence at the time of the trial was located where it was built by Flook in 1890, to enable the court to say as a matter of law that title to the strip in controversy had been acquired by adverse possession, even if, under the facts of this ease, the possessioh of previous owners can be tacked to that of appellee, which we do not decide.
There are two bills of exception. The first was to the striking out of certain testimony as to the use of the alley by the public. .There was no reversible error in this ruling, as there was no offer to' prove that the use of the alley by the public to get to appellee’s store was by his invitation.
The second exception was to the granting of defendant’s first prayer, which instructed the jury “that under the pleadings in this case there is no evidence legally sufficient to entitle the plaintiff to recover.”
Strictly construed, the prayer is a variance prayer, and as such it is too general, as it do'es not state the points wherein
it is claimed the variance exists. But, apart from the form, we find no variance. Trespass
quare clausum fregit
is a possessory action and it was necessary, in order to maintain it, for plaintiff to show possession by him of the particular strip in controversy, o:r constructive possession of it by reason of the actual possession of part of an entire tract described in a deed, of which it is claimed the land in dispute forms a part. 1 Poe,
Pl. & Pr.
(4th Ed.), sec. 245. We think there is evidence of such constructive possession.
The prayer, however, was probably intended as a demurrer to the evidence. Treating it as such, in our opinion there was error in granting it. We think there is evidence from which the jury could have found title in the plaintiff and invasiota. by the defendant.
In 1859 the said two adjoining lots together formed lot Ho. 40, which was owned by Tiras Welty and others, who, by their deed of April 4th, 1859, conveyed it to- Lewis M. Johnson. In that deed the lot is described as being on the ncrtheast side of Main Street, bounded on the north by the heirs of Peter Heck, deceased, on the south by the Beformed Church, on the east by a back alley, and on the west by Main Street, being known as lot Ho. 40, and fronting on Main Street 82% feet and running back 264 feet to the alley in the rear.
Plaintiff offered the deed from Henry Heck and wife to Peter Heck, dated December 26th, 1840, and one from Henry Heck dated June 30th, 1838. The record shows that .the Heck deed first mentioned conveyed the southern half of lot Ho. 41, which is 41 feet and 3 inches in width, and 264 feet in depth. While the record does not show it directly, it is clear, from references in deeds contained in the chains of titles to the two halves of lot No. 40, that the Catholic Church property referred
t-o-
in said deeds is the southern part of lot No. 41.
Louis Johnson and wife, by deed dated March 23rd, 1882, conveyed to Theodore F. Welty, extending 41% feet ota the northeast side of Main Street adjoining on the south the German Beformed Church property (subsequently the United
Brethren parsonage property), and by deed dated March 23rd, 1885, the said Louis Johnson conveyed to' Annie E. Johnson the northern half of lot Ho. 40, 41% feet, adjoining on the north the Catholic Church and on the south the part of the lot he had conveyed to the said Theodore F. Welty.
The two parts of said lot Ho-. 40 come down, respectively, by various mesne conveyances, the northern half to appellee and the southern half to appellant.
Samuel E. Schindel, a surveyor, testified that he was familiar with the property in controversy and knew the lo'cation of the Catholic Church property; that there is an iron fence in front of the church property, the southern end of which is right against the northern face of the Wolf residence; that the edge of the iron post is right up against, or possibly an inch away from, the north side of the Wolf house; that he measured from this post eastward (evidently meaning southeastward) along the line in front of the Wolf and Ditto lots to a point on the south side of the Ditto property where there is a stone in the ground, and also a division mark in the sidewalk, which is approximately 83 feet from the iron post at the church lot; that he first measured 41% feet from the iron post at the southern side of the church lot in a southerly direction, which led approximately to three feet north of the north walk of the Ditto1 house; that when he measured ah additional 41% feet it went to a point about 5% inches north of the centre of a stone inside of the retaining wall at the southern side of the Ditto lot, and about 7 or 8 inches from the division of the sidewalk; that the eastern (meaning southeastern) line of the store room on the Wolf property is about 4 feet 1 inch west (meaning northwest) of the Ditto house, leaving a space of about 4 feet 1 inch between the main wall of the Ditto house and the store; that, in measuring from the stone found at the south corner of the Ditto property 41% feet northwestwardly, you would reach a point about 2 feet 8 inches north (northwest) of the Ditto house; that measuring northwestwardly from the mark indicating the northwest extremity of the parsonage property a distance of 41% feet, one would reach a point
about 2 feet 6 inches north of the Ditto- house; that witness has no- means of identifying the comer of the Catholic Church property, but measured from the iron po’st where it stood to the United Brethren parsonage, that is, to the building, not taking the cornice into consideration; that the stone spoken of is in the Ditto- yard between the Ditto house and the parsonage; that it is abofit 2 feet 2 inches from the center of this stone (which is about 4 inches square) to the parsonage; that the fence between the Ditto property and the parsonage extending from the northeast comer of the parsonage to- the alley is a straight line; that measuring from the parsonage north (meaning northwest) 41 feet 3 inches one would reach
5y<¿
inches north (northwest) of the Ditto house; witness does not- know as a fact that the iron post is the starting point of the church property; when speaking of the line or fence on the western (meaning southwestern) boundary of the parsonage property, witness was giving the location o-f the fence as he saw it; that he does not know where the correct boundary between the Ditto property and the parsonage is.
Another witness, Harvey J. Huffer, testified that he is acquainted with the Wolf and Ditto- and parsoin-age properties, having lived in Boon-sboro and vicinity since 1870; that he has been 'a trustee of the parsonage for thirty-one years; that “I know where the line is between the United Brethren parsonage and the Ditto- property on the north side of the parsonage property; I know it by a line stone in the curb of the pavement; the curb represents a succession of stones direct from the line inside the yard. I know that the stone was put in the yard about twenty-eight years ago; it stands in a line direct out across the curb. The stone was put there by Mr. Flook when he built the house; there was a fence along down there that came clean* doHvn to the street; the fence was tom away and he planted the stone there; the house that was built by Mr. Flook is now the United Brethren parsonage. I have known the Catholic Church as it exists there now since 1870, ever since I knew anything.”
The above testimony o-f Huffer, unless it is neutralized as to the lo'cation of the stone to fix the northeast line of the
parsonage property by what be said on cross-examination, is evidence to go to the jury tending to show the northwest boundary line of the Wolf property and the southeast boundary of the Ditto property, and the surveyor’s testimony shows the distance between these lines to be about 83 feet, about 6 inches more than, the total number of front feet in both the Wolf and Ditto lots. And the distance of 41% feet northwesterly from the stone referred to would reach to a point about 2 feet 8 inches northwest of the Ditto house, which would tend to prove that about 2 feet 8 inches of the strip in dispute belonged to appellant.
On cross-examination Huff or said Fred Flook, the man he referred to, had been dead some years, that Howard Flook was living and sitting in the court room, and that he was a brother of Fred and helped him to build the honse on the property then owned by Fred and later bought for the United Brethren parsonage. “I do! not know of my own knowledge where this man built the United Brethren parsonage honse with reference to a line, as I wasn’t particularly interested, hut I was in the house when he was building it several times. I do not know whether he was building on the corner of the lot or two feet into the line, or anything else, nor was I interested in the exact location that he put the house on the lot he owned, but he didn’t build it on the edge of the line. I was not interested in planting any stone and did not see any stone planted. I never knew there was any stone there until recently. I know when the stone pavement was tom up about twenty-eight years ago at the time when he built his house. He built a fence from that house back to1 the alley with a draw from the fifth panel. It is not straight. That fence stands there today as it has stood there for twenty-eight years practically; I don’t think it has been remodeled.” On re-direct examination he said: “I know when a stone pavement was there and the Ditto pavement was a brick pavement ; the stone pavement was torn up and this fivednch curb put doivn between the pavement out of stone with the dividing line of the pavement. This was twenty-eight years ago when the house was built.”
The net result of his testimony seems to be that what he said about the stone in the yard may -have been hearsay, possibly what Flook told him he intended to- do to mark the line when he moved the fence. Such a statement about a bohndary by one since dead, when apparently he had no- motive for making a self-serving declaration, would be evidence. At any rate there remains intact the statement that the old division fence ran in a line with the stone; and there also remains the statement that the division line between the pavements of the two properties -spoken of by the surveyor was made at the time the stone pavement in front of Flook’s property was removed.
Howard Flook, who afterwards testified for the defendant, said he had no knowledge of the stone in the Ditto yard spoken of by Huffer; and his testimony indicates that he and witness and his brother were trying to locate the line when they built the house; but he is silent as to- the division in the pavement.
A careful consideration of the testimony of HufiFer and the surveyor, in connection with the exhibits, leads us to- the conclusion that there was some evidence tending to prove the trespass, and that the cáse should have been submitted to the jury.
Judgment reversed, with costs to appellant, and new triad awarded.