Bartol, J.,
delivered the opinion of this Court.
This is an action of ejectment brought by the appellee to recover “ Military Lot No. 3,905,” in Allegany county. The defendants pleaded not guilty, and took defence on warrant, claiming title by adversary possession, to two portions of the Lot, described in the Surveyor’s return and on the plats as “Possessions No. 1 and No. 2.” They recovered for Possession No. 2, and the plaintiff, not having appealed, that is not now in controversy. Eor No. 1 the verdict and judgment were rendered for [613]*613the plaintiff. Three bills of exceptions were taken by the defendants ; the first two, on the admissibility of evidence, and the third to the ruling of the Court below on the prayers ; as the same questions raised by the first and second exceptions are also presented by the fourth and fifth prayers of the defendants, they will be considered in disposing of the third exception. To prove his title the plaintiff gave in evidence a patent to Thomas Johnson dated March 31st, 1814, conveying lot Eo. 3,905 ; and other evidence tracing the title from Thomas Johnson, the patentee, to the plaintiff, by inesne conveyances. Eo exception was taken to the admissibility of this evidence, and no question appears to have been distinctly raised below, as to the regularity of the plaintiff’s paper title ; the lines of “Possession Eo. 1,” the land in controversy, are embraced in Lot Eo. 3,905, about the location of which there is no dispute. The defendants gave proof tending to show that James Morrison held possession of the land in controversy by inclosures, claiming title thereto for a number of years before his death, which took place in 1824 or 1825. The witness Duckworth remembers the possession of James Morrison as far back as 1808 or 1810. Other witnesses testified on the same subject, William Knight going back as far as 1817, and others to periods less remote. The defendants also gave in evidence the will of James Morrison, dated 20th May, 1823, and proved 12th January, 1825, by which he devised to his son John all the residue of his estate, real and personal, in terms which would pass any estate he might have had in this property. Evidence was also given tending to prove the possession by inclosures of John Morrison under the will, and of John J. and James J.,Morrison, the sons of John, after his death, by their guardians, the defendant James J. Morrison, being one of the sons of John. There is some conflict of testimony with regard to the character of James Morrison’s indo[614]*614sures, some of the witnesses testifying that they were not kept up, that much of the time the fences on one side were down, the land lying out as a common, and a road across it, along which everyone drove or passed at will ; while others testify that the fences, though partially destroyed and dilapidated in the winter, as was customary with most of the lots in the neighborhood, were renewed in the spring and the land cultivated, and that the passing across it in the winter, was by the permission of James Morrisom, and gaps in the fence were left open for the accommodation of himself, his customers and neighbors, in hauling to and from his saw mill in the vicinity, and the boat-yard on the Potomac river near by.
From the course of argument in this Court we infer the point of dispute between the parties, turns mainly upon the question as to the actual possession by inclosures, of James Morrison and those claiming under him, including the defendant. The plaintiff asked two prayers, which were granted, and. the defendants five prayers, all of which were refused. By the plaintiff’s first prayer the jury was' instructed that if they believed from the evidence Lot No. 3,905 was correctly located, the plaintiff is entitled to recover whatever portion of the land in controversy the jury shall believe “ has not been held by the defendants or one of them, and those under whom he or they claim, for twenty consecutive years before the bringing of this suit, by a real and substantial indosure, which was during said period an exclusive, continuous and adverse possession, by inclosure.” Two objections are made by the appellants to this prayer :
1st. That it fails to submit to the jury the facts necessary to show the plaintiff’s title.
2d. That it lays down incorrectly the law with regard to the adverse possession necessary to he shown in order to bar the action. In disposing of the first objection it is necessary to refer briefly to the plaintiff’s evidence of title contained in the hills of exceptions. This consisted of
[615]*6151st. The patent to Thomas Johnson of March, 1814, above referred to.
2nd. Thomas Johnson’s will, dated 4th July, 1818, proved in December, 1819, devising Lot No. 3,905 to his son Joshua Johnson, and his grandson Thomas J. Graham, each one half thereof.
3d. Deed of January, 1833, from John Graham, trustee, conveying to the plaintiff the title and estate of Thomas J. Graham; this deed purports to have been made under the authority of a decree of Frederick County Court, sitting in Equity, which is referred to in the deed.
4th. Deed of August 3d, 1858, from William J. Eoss, executor of the will of Joshua Johnson, deceased, conveying to the plaintiff, the title and estate of Joshua Johnson ; with this deed was offered in evidence the record of Joshua Johnson’s will and of the proceedings of the Orphans’ Court, showing the executor’s report of sale and its final ratification. Neither the will nor the record of the Orphans’ Court is set out in the bill of exceptions ; nor the decree and other proceedings of Frederick County Court, under which' Graham, the trustee, acted. These were, of course, essential to be shown, in order to establish the validity of the deeds from Graham, the trustee, and Eoss, the executor ; no exception, however, was taken to the admissibility of the deeds in evidence ; and in the argument of the cause in this Court the counsel for the appellants admitted the regularity of the chancery proceedings, the power of Graham, the trustee, and the power of Eoss, the executor, to execute the deeds to the plaintiff offered in evidence. In the face of those admissions the appellants’ objection must be considered merely formal. The prayer fails to submit to the jury “ to find whether or not the patent was granted of the lot, whether the will of Thomas Johnson was executed and conveyed it, whether the chancery proceed[616]*616ings in Frederick were had, whether the deeds of Graham and Ross were executed.” So the appellants’ objection is stated in their brief. These facts, it is argued, are essential to the plaintiff’s title, and ought to have been submitted to the jury. In granting the plaintiff’s first prayer the Court assumed them. Is this error for which the judgment would be reversed ? Unquestionably, before the Act of 1862, ch. 154, such was the settled law of this Court; many judgments have been reversed for this cause, it being established that in a prayer framed like this, every fact necessary to make out the plaintiff’s title must be submitted to the jury, although the proof in support of it might be clear and uncontradicted, and not really a matter of contest before the jury, and the objection to the frame of the prayer made for the first time in the appellate Court. Under this practice parties were often taken by surprise and injustice done. To cure this evil, the Act of 1862, ch. 154, was passed, re-enacting section 12, Art.
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Bartol, J.,
delivered the opinion of this Court.
This is an action of ejectment brought by the appellee to recover “ Military Lot No. 3,905,” in Allegany county. The defendants pleaded not guilty, and took defence on warrant, claiming title by adversary possession, to two portions of the Lot, described in the Surveyor’s return and on the plats as “Possessions No. 1 and No. 2.” They recovered for Possession No. 2, and the plaintiff, not having appealed, that is not now in controversy. Eor No. 1 the verdict and judgment were rendered for [613]*613the plaintiff. Three bills of exceptions were taken by the defendants ; the first two, on the admissibility of evidence, and the third to the ruling of the Court below on the prayers ; as the same questions raised by the first and second exceptions are also presented by the fourth and fifth prayers of the defendants, they will be considered in disposing of the third exception. To prove his title the plaintiff gave in evidence a patent to Thomas Johnson dated March 31st, 1814, conveying lot Eo. 3,905 ; and other evidence tracing the title from Thomas Johnson, the patentee, to the plaintiff, by inesne conveyances. Eo exception was taken to the admissibility of this evidence, and no question appears to have been distinctly raised below, as to the regularity of the plaintiff’s paper title ; the lines of “Possession Eo. 1,” the land in controversy, are embraced in Lot Eo. 3,905, about the location of which there is no dispute. The defendants gave proof tending to show that James Morrison held possession of the land in controversy by inclosures, claiming title thereto for a number of years before his death, which took place in 1824 or 1825. The witness Duckworth remembers the possession of James Morrison as far back as 1808 or 1810. Other witnesses testified on the same subject, William Knight going back as far as 1817, and others to periods less remote. The defendants also gave in evidence the will of James Morrison, dated 20th May, 1823, and proved 12th January, 1825, by which he devised to his son John all the residue of his estate, real and personal, in terms which would pass any estate he might have had in this property. Evidence was also given tending to prove the possession by inclosures of John Morrison under the will, and of John J. and James J.,Morrison, the sons of John, after his death, by their guardians, the defendant James J. Morrison, being one of the sons of John. There is some conflict of testimony with regard to the character of James Morrison’s indo[614]*614sures, some of the witnesses testifying that they were not kept up, that much of the time the fences on one side were down, the land lying out as a common, and a road across it, along which everyone drove or passed at will ; while others testify that the fences, though partially destroyed and dilapidated in the winter, as was customary with most of the lots in the neighborhood, were renewed in the spring and the land cultivated, and that the passing across it in the winter, was by the permission of James Morrisom, and gaps in the fence were left open for the accommodation of himself, his customers and neighbors, in hauling to and from his saw mill in the vicinity, and the boat-yard on the Potomac river near by.
From the course of argument in this Court we infer the point of dispute between the parties, turns mainly upon the question as to the actual possession by inclosures, of James Morrison and those claiming under him, including the defendant. The plaintiff asked two prayers, which were granted, and. the defendants five prayers, all of which were refused. By the plaintiff’s first prayer the jury was' instructed that if they believed from the evidence Lot No. 3,905 was correctly located, the plaintiff is entitled to recover whatever portion of the land in controversy the jury shall believe “ has not been held by the defendants or one of them, and those under whom he or they claim, for twenty consecutive years before the bringing of this suit, by a real and substantial indosure, which was during said period an exclusive, continuous and adverse possession, by inclosure.” Two objections are made by the appellants to this prayer :
1st. That it fails to submit to the jury the facts necessary to show the plaintiff’s title.
2d. That it lays down incorrectly the law with regard to the adverse possession necessary to he shown in order to bar the action. In disposing of the first objection it is necessary to refer briefly to the plaintiff’s evidence of title contained in the hills of exceptions. This consisted of
[615]*6151st. The patent to Thomas Johnson of March, 1814, above referred to.
2nd. Thomas Johnson’s will, dated 4th July, 1818, proved in December, 1819, devising Lot No. 3,905 to his son Joshua Johnson, and his grandson Thomas J. Graham, each one half thereof.
3d. Deed of January, 1833, from John Graham, trustee, conveying to the plaintiff the title and estate of Thomas J. Graham; this deed purports to have been made under the authority of a decree of Frederick County Court, sitting in Equity, which is referred to in the deed.
4th. Deed of August 3d, 1858, from William J. Eoss, executor of the will of Joshua Johnson, deceased, conveying to the plaintiff, the title and estate of Joshua Johnson ; with this deed was offered in evidence the record of Joshua Johnson’s will and of the proceedings of the Orphans’ Court, showing the executor’s report of sale and its final ratification. Neither the will nor the record of the Orphans’ Court is set out in the bill of exceptions ; nor the decree and other proceedings of Frederick County Court, under which' Graham, the trustee, acted. These were, of course, essential to be shown, in order to establish the validity of the deeds from Graham, the trustee, and Eoss, the executor ; no exception, however, was taken to the admissibility of the deeds in evidence ; and in the argument of the cause in this Court the counsel for the appellants admitted the regularity of the chancery proceedings, the power of Graham, the trustee, and the power of Eoss, the executor, to execute the deeds to the plaintiff offered in evidence. In the face of those admissions the appellants’ objection must be considered merely formal. The prayer fails to submit to the jury “ to find whether or not the patent was granted of the lot, whether the will of Thomas Johnson was executed and conveyed it, whether the chancery proceed[616]*616ings in Frederick were had, whether the deeds of Graham and Ross were executed.” So the appellants’ objection is stated in their brief. These facts, it is argued, are essential to the plaintiff’s title, and ought to have been submitted to the jury. In granting the plaintiff’s first prayer the Court assumed them. Is this error for which the judgment would be reversed ? Unquestionably, before the Act of 1862, ch. 154, such was the settled law of this Court; many judgments have been reversed for this cause, it being established that in a prayer framed like this, every fact necessary to make out the plaintiff’s title must be submitted to the jury, although the proof in support of it might be clear and uncontradicted, and not really a matter of contest before the jury, and the objection to the frame of the prayer made for the first time in the appellate Court. Under this practice parties were often taken by surprise and injustice done. To cure this evil, the Act of 1862, ch. 154, was passed, re-enacting section 12, Art. 5, of the Code, and adding thereto important provisions regulating the practice of this Court. The section is as follows :
“ The Court of Appeals shall in no case decide any point or question which does not appear by the record to have been tried and decided by the Court below ; but no prayer or instruction shall be deemed defective by reason of any assumption therein of any fact by the said Court, or because of a question of law having been thereby submitted to the jury, unless it appears from, the record that such objection was taken at the trial.”
The construction of this Act has not been distinctly settled. In the M. & C. C. of Balt. vs. Poultney & Trimble, decided at April Term, 1866, it was held that where the Court below submitted to the jury to find a fact, of which there was not evidence legally sufficient, it was error and ground for reversal; the Act of 1862 having no application to such a defect.
[617]*617In Lane, Adm’x of Horine, vs. Lantz, ante, 211, a defect in the plaintiff’s prayer, granted by the Court below, in failing to submit a fact to be found by the jury, of which, there was proof, was held to be cured by the Act of 1862 ; the objection having been made for the first'time in this Court. The design of this Act appears to have been to extend the provisions of the Act of 1825 (Code, Art. 5, sec. 12) to prayers and instructions ; and to require that certain omissions and defects in them shall not be considered in the Court of Appeals, unless the record shows specific objections have been made to them at the trial, and they have been passed on by the Court below. The Act does not alter the law governing prayers and instructions, or authorize a Court to take from the jury the finding of facts, or to submit to them the decision of questions of law ; it simply provides that if a prayer is defective for ■ either of these reasons, the objection must be made at the trial and cannot be urged for the first time in the appellate Court. These defects have often occurred through mere, inadvertence in the hurry of the trial, and might have been corrected if the attention of the Court had been called to them at the time, and although in reality the appellant has not been injured by them, and perhaps never discovered them till the record has come into this Court; yet as the law before stood, they were fatal, and this Court has been obliged to reverse. In that way parties have often been taken by surprise and much injustice has been done. Where a Court is asked by a prayer to take from the jury, or assume as proved, facts that are really in dispute, it is very easy to make the objection at the trial; but if facts are not really disputed, it is difficult to see how a party can be injured by a failure to submit them to the jury, and it would be very unjust to grant him a reversal of the judgment on that account; to prevent such injustice the Act of 1862 was passed.
The present case seems to us to come within its provis[618]*618ions. These are very comprehensive and apply as well to an instruction which assumes several facts, as to one in which only one fact is assumed. If there be proof to sustain them, competent to go to the jury, and the Court below in its instruction assumes them instead of submitting them to the jury, the objection, under the Act of 1862, must be taken at the trial, otherwise it cannot be insisted on in this Court as cause for reversal.
The second objection of the appellants to the plaintiff’s first prayer presents the question of adverse possession. On this subject the law is well settled by aseries of decisions in this Court. See Armstrong vs. Risteau, 5 Md. 256, 270; Hoye vs. Swan, 5 Md. Rep., 237; Casey vs. Inloes, 1 Gill, 430, 490; Morgan vs. Slider, 22 Md. Rep., 267, 269, 270, 274.
Twenty years continuous, exclusive, adverse possession by actual inclosure, by the defendants or one of them and those under whom they claim, will bar the action, and this we understand to be the proposition contained in the plaintiff’s first prayer. We do not construe it as requiring possession for that length of time to have been held both by the defendants and those under whom they claim. Such possession for that period either by James Morrison, the grandfather, or by him and those claiming under his will, would defeat the action. The plaintiff’s second prayer is not open to the objection, that it assumes the facts essential to establish the plaintiff’s title; that objection ought to have been taken below ; the observations we have made on this subject in considering the first prayer being alike applicable to this.
We think, however, it was erroneous in stating that the possession must not only be by actual inclosure, but that the inclosure must be continuous. Such instruction, in view of the evidence, was calculated to-mislead the jury — actual inclosure is necessary ; but the fences might have been partially removed at different periods, to enable [619]*619the occupant and others to pass through by his permission, or the fences might have been partially destroyed at intervals during the Winter, an'd renewed, in the Spring for the purpose of cultivating the lands, as testified by some of the witnesses; and though the inclosure in that way would cease to be continuous in one sense ; yet such temporary breaches would not be sufficient to defeat a claim by adverse possession.
The legal propositions contained in the first and second prayers of the defendant's are correct and ought to have been granted. The defendants’ third prayer ought also to have been granted, there being some evidence in the cause for the consideration of the jury, tending to prove the facts therein stated. The fourth and fifth prayers raise the same questions as are presented by the first and second bills of exceptions and relate to the admissibility of evidence. Before the passage of the Act of 1852, ch. 177, (Code, Art. 75, s. 57, &c.,) a witness not sworn on the survey and who did not point out to the surveyor a line or object located on the plots was incompetent to testify at the trial, with reference to the location of such line or object. Stoddert vs. Manning, 2 H. & G., 147. By that Act, sec. 7, it is provided, “ That the plots and certificates of survey in every case may be amended at bar, and objects to which the proof applies may be placed on the plots, and witnesses may be examined who tvere not sworn on the survey.” * * * * * * Provided the Oourt shall be satisfied the ends of justice will be attained by such amendment of plots and. admission of Avitnesses.” According to our construction of this section, it merely dispenses Avith the necessity of having a witness siuorn on the survey in order to mate him competent to testify at the trial; but does not render a witness competent to give evidence at the trial Avith regard to the location of any object upon the plot, who Avas not upon the survey at all. To allow such testimony Avould lead to the greatest confusion and uncertainty.
[620]*620(Decided 23d July, 1867.)
The object of location is to give certainty to the claims and pretensions of the parties and-prevent surprise. Mundell vs. Perry, 2 G. & J., 205.
This would he defeated by permitting a witness to be examined in Court who was not present at the survey, and did hot point out to the surveyor the objects, the location of which is to be proved at the trial. The words of the Act of 1852 do not require us to adopt the construction contended for by the appellee’s counsel, and we think -the fourth and fifth prayers of the defendants ought to have been granted. As the case must he sent down for a new-trial, it is proper to say that we affirm the ruling of the Circuit Court on the plaintiff’s exception.
Judgment reversed and procedendo ordered.