died, because the daughter was still living and might have died without leaving any children or descendants. On the assumption, then, that the son died first (and whether that is correct or not is immaterial, as the same results would follow as to the daughter's three-fifths) his two children took the whole of the two-fifths immediately and absolutely at his death, and the two-fifths were free from the trust. The clause relied on by the appellants could not, therefore, affect those two-fifths, which were then vested in the two children of George, unless they be divested of part of what was thus vested in them at the death of their father. Moreover, it would have left their interests in great uncertainty, for they could not have known how many, if any, children, Mrs. Stuart would leave surviving her. If she left four, or more, then, under the appellants' contention, the two-fifths of the appellees would be lessened; if she left three, no change would be made, and, if less than three, then George's children would retain their original two-fifths and have an interest in Mrs. Stuart's threefifths. When we see what care was taken in providing for different contingencies, it is altogether improbable that the testator intended to leave his estate in such uncertainty and confusion. Indeed, it is reasonably certain that, if he had intended an equal division of the whole property between all of his grandchildren, he would have kept the whole of the residuary estate in trust until the death of both his son and his daughtergiving the children and descendants of his daughter, if she died first, the income of the three-fifths until the son died, or those of his son, if he died first, the income of the twofifths until his daughter died-and would not have provided that these respective interests should vest immediately and absolutely upon the death of the daughter or son. But what were the children or descendants of George and Mary to take "in equal proportions, share and share alike"? The clause of the will in controversy answers that inquiry— "they are to take the property hereby devised and bequeathed to them in equal proportions," etc. What property was "hereby devised and bequathed to them"-that is to say, what property was by previous clauses of the will devised and bequeathed to them? Clearly, three-fifths of the residuary estate to the children of Mary who were living at the time of her death, and two-fifths to the children of George living at the time of his death. The testator was then referring to what he had done in the previous part of the will, and he did not, in that clause, make any devise or intimate that he intended to take his grandchildren or their descendants, or any of them, any portion of the property devised and bequeathed to them by the previous clauses of his will, and there can be no possible doubt as to what was devised and bequeathed by those clauses. He not only nade that disposition of his residuary es

tate, but by a clause subsequent to the one relied on by the appellants he authorized the trustee named in the will "to sell, convey and assign the whole or any part of my estate and property, for the purpose of division among the persons entitled hereunder," etc.

It must be confessed that it is not altogether clear what the testator did mean by the clause in controversy. If his object was to in some way alter the devises and bequests already made to his grandchildren, or their descendants, it might be argued that he intended that the descendants of a deceased child of Mary should take in equal proportions, share and share alike, with the children of Mary, and so with those of George. As there were no such descendants in either instance, that is not a practical question in this case, but such a construction would not be reasonable, for the testator, in speaking of the descendants of any deceased child or children in the yarious provisions made in the residuary clause of the will, seven times used the expression "said descendants to take per stirpes and not per capita." Yet, if the appellants are right, if either Mary or George had left "descendants," they would have taken "in equal proportions, share and share alike," with the children living, notwithstanding the testator had, in speaking of the children and descendants of Mary and George, four times said the descendants were to take per stirpes and not per capita, and had used the same expression three times in disposing of the estate, in case neither Mary nor George left children or descendants. It would, therefore, seem altogether improbable, if not impossible, that the testator could have, by those few lines, intended to so radically change the provisions about the descendents, which had been so carefully worded and so emphatically stated. We must not forget that, although there were no descendants of deceased grandchildren living at the death of either Mary or George, the testator was providing for such contingency, and hence in construing the will it is entitled to as much consideration as if the contingency had happened. It would be contrary to the whole scheme of the will in reference to "descendants" to hold that they were to take equally with each other and with the grandchildren of the testator, and yet that would have been the result if a child of either the son or daughter had died leaving descendants, if the appellants' construction is adopted. It may be that when the draftsman reached this point in the will he noticed he had not used the expression often found in wills making devises to more than one person-"in equal proportions, share and share alike"-and deemed it desirable to do so, although of course it was not necessary, and that all he meant to say was that the children or descendants of George and Mary were to take the prop

erty devised and bequeathed to them by the former clauses of the will-that is to say, the three-fifths and two-fifths, respectively-in equal proportions, share and share alike, subject to the further provision that the descendants would take per stirpes and not per capita. But whatever the object was, the testator did not by this clause so clearly indicate an intention to change the devises previously made in the will as would justify us in holding that it changed the whole scheme of the will and divested his grandchildren of any part left to them and so clearly set out in the previous clauses. The devises in remainder to the children and descendants of the son and daughter were not only vested in them, upon the death of their respective parents, but they were entitled to the possession and absolute control of them, as soon as that could be accomplished under the terms of the will, and we are of the opinion that, if the testator intended to make such changes in the previous clauses as the appellants contend he did by the clause in question, he should have used more certain terms to indicate such intention. As is said in Jarman on Wills, 479, "where there is a clear gift in a will, it cannot afterwards be cut down except by something which, with reasonable certainty, indicates the intention of the testator to cut it down. It need not (as sometimes stated) be equally clear with the gift. 'You are not to institute a comparison between the two clauses as to lucidity.' But the clearly expressed gift naturally requires something unequivocal to show that it does not mean what it says."

As we agree with the court below that by the true construction of the will the children of Mary Stuart were entitled to threefifths of the property, passing under the residuary clause of the will, and that the children of George T. Rosensteel, Jr., were entitled to the other two-fifths, we will affirm the decree.

Decree affirmed, the costs to be paid out of the fund reserved for that purpose by agreement of counsel.

(104 Md. 208)

HAINES' EX'RS v. HAINES. (Court of Appeals of Maryland. Nov. 2, 1906.) 1. APPEAL HARMLESS ERROR - SUSTAINING DEMURRER.

Defendant was not injured by the sustaining of a demurrer to one of his pleas where another plea to which the demurrer was overruled set up the same defenses, and evidence was freely introduced at the trial in support thereof. [Ed. Note. For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 4094.]

2. TRESPASS-PLEADING-REPLICATION-NEW

ASSIGNMENT.

Pub. Gen. Laws, art. 75, § 24, subsec. 78, provides that, if plaintiff replies and new assigns, he may state that "he sues not for the trespasses therein admitted but for trespasses committed by defendant in excess of the alleged

rights and also in other parts of the said land and on other occasions, and for other purposes than those referred to in the said pleas." The declaration charged defendant with having on a certain date forcibly broken and entered plaintiff's close and destroyed her grass and soil, and widened and deepened a race within the close, causing the damage. Defendant's plea set up that he had cleaned and repaired the race in the same manner that he had always done it for 20 years theretofore and in the ordinary manner. Held, that plaintiff was entitled to reply by way of new assignment that defendant, when he entered on plaintiff's land, dug down the soil and widened the race and threw débris and offal on plaintiff's land beyond the condition and limits he was entitled to do by virtue of any prescriptive right as alleged in the plea. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trespass, § 100.]

3. SAME-DECLARATION-ISSUES, PROOF, AND

VARIANCE.

Where the declaration in an action of trespass quare clausum fregit charged defendant with breaking plaintiff's close and forcibly committing various unlawful acts therein as component parts of the wrong complained of, it was not essential to plaintiff's right of recovery to show that defendant was a trespasser ab initio. 4. ACTION-JOINDER OF CAUSES-TRESPASS.

In an action for trespass quare clausum fregit, allegations of acts amounting to a trespass vi et armis, which form a component part of the outrage complained of, may be joined therewith, and damages may be recovered therefor as if a separate action had been brought.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Action, § 344.]

5. TRESPASS-QUESTION For Jury-EvIDENCE. In an action of trespass, evidence considered, and held that defendant's prayer taking the case from the jury was properly denied. 6. SAME-EVIDENCE-ADMISSIBILITY.

In an action of trespass for enlarging a race across plaintiff's premises beyond the condition of its existence for twenty years prior thereto, it was proper to admit evidence taken on cross-examination of defendant and his son as to the different uses to which they had put the water that flowed through the race and as to the manner in which they cleaned the race, as such evidence reflected on the character of the alleged trespass.

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Elizabeth J. Haines against the executors of Joseph L. Haines. From a judgment for plaintiff, defendants appeal. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, SCHMUCKER, and BURKE, JJ. J. Guy W. Steele, for appellants. E. O. Weant and D. N. Henning, for appellee.

SCHMUCKER, J. The appellee, who was plaintiff below, and the appellant's testator, who was defendant below, owned adjoining farms in Carroll county. For more than 30 years prior to the institution of this suit the entire volume of water from a stream known as "Wolf Pit Branch" had flowed across the farm of the plaintiff, for a distance of 1,150 feet, in an artificial aqueduct or race to the farm of the defendant, who used the water for domestic, agricultural, and manufacturing purposes. The defendant had during all of that time been accustomed to clean and re

In

pair the race when necessary, usually at intervals of two or three years, and to go upon the plaintiff's farm for that purpose. October, 1904, the defendant, accompanied by several laborers with horses and cart and plow, entered the plaintiff's farm and cleaned and repaired the race. The plaintiff thereafter, by her husband and next friend, instituted in the circuit court for Carroll county the present suit of trespass quare clausum fregit against the defendant for the entry thus made upon her land, and alleged injuries there inflicted by him and his servants upon the soil and grass while working upon the race, and for the alleged widening and deepening of the race, so as to cause large quantities of water to flow over and flood her land. The case having been moved on affidavit to the circuit court for Washington county, and the pleadings conducted to an issue, it was tried before a jury and a verdict rendered and judgment entered for the plaintiff for nominal damages. From that judgment this appeal was taken.

There was no controversy between the parties to the case as to the relative position of the two farms or the existence and location of the race through which the water flowed across the land of the plaintiff to that of the defendant. The situation was still further simplified by the admission of the plaintiff, during the trial of the case, "that the defendant had the right to convey the water of Wolf Pit Brauch to his property by means of the race mentioned in the evidence and shown on the plat, as well as the right to go upon the land of the plaintiff to clean and repair it." The question of fact in the case was whether the defendant and his servants in cleaning and repairing the race within the plaintiff's inclosure in October, 1904, had exceeded their rights and done greater injury to her land and grass than was reasonably necessary and unavoidable, There is evidence in the record tending to show that no other than usual and necessary cleansing and repairs had been made on that occasion. There is other evidence tending to show that the defendant had at that time caused the race to be materially deepened and widened, and had otherwise unnecessarily injured the plaintiff's land and grass.

The record contains three bills of exceptions; two relating to rulings of the court below on the admissibility of evidence, and the third being to its action on the prayers. The propriety of the disposition made below of several demurrers is also brought up for review by the appeal. We will first consider the questions of pleading presented by the record. The declaration in a single count charges the defendant with having on the 8th of October, 1904, and divers other days, etc., forcibly broken and entered the plaintiff's close and destroyed her grass and soil and widened and deepened the race within the close, and caused large quantities of water to flow over and flood the soil, to her

great damage and injury. It is thus apparent that the declaration charges, as component parts of the outrage complained of, the breaking of the close and the unlawful acts done within it after the entry had been effected. The defendant filed the general issue plea and two special pleas, by way of confession and avoidance, one setting up a prescriptive right in himself to use the race to convey the water from Wolf Pit Branch to his farm, and the other setting up the same right to use the race and also a like right to enter the plaintiff's close and clean and repair the race. The plaintiff joined issue on the general issue plea and demurred to the second and third pleas, and the court sustained the demurrer. The defendant then withdrew those two pleas and filed amended second and third pleas, setting up more fully the same defenses as the special pleas originally filed, and further averring in the second plea that in October, 1904, he had cleaned and repaired the race in the ordinary and usual manner, doing no avoidable or unnecessary damage to the plaintiff's land, and averring in the third plea that he had on that occasion cleaned and repaired the race in the same manner that he had always done it for 20 years theretofore and in an ordinary manner. The plaintiff replied to the amended third plea, denying the existence of the alleged prescriptive rights therein set up. The defendant demurred to this replication, and, his demurrer having been overruled, he joined issue on the replication. At the trial of the case, after the evidence was in, the plaintiff, with the leave of the court, withdrew her replication to the amended third plea and filed two amended replications, of which the first was similar in terms to the former one, but the second averred by way of new assignment that the defendant, when he entered upon the plaintiff's lands in October, 1904, dug down the soil and widened the race beyond the condition of its existence for the 20 years prior thereto and despoiled the land and crops of the plaintiff by throwing the debris and offal, accruing from the cutting down of the ditch, upon the lands of the plaintiff beyond the limits he was entitled to do by virtue of any prescriptive right as alleged in the amended third plea. The defendant demurred to this amended replication, and, his demurrer having been overruled, he joined issue on the first amended replication and filed a rejoinder to the second one, traversing its allegations, on which issue was joined. At the hearing in this court the defendant as appellant did not insist on his objection to the action of the lower court on any of the demurrers other than those to the second amended plea and the second amended replication. In our opinion no reversible error appears in the rulings upon either of these demurrers. The second amended plea set up a prescriptive right on the part of the defendant to use the race for conveying the water to his farm,

and averred that he entered the plaintiff's land in October, 1904, to clean the race and make necessary repairs to it, and did no unnecessary or avoidable damage to the land, and that the trespasses alleged in the declaration were those acts committed in cleaning and repairing the race. The defendant was not injured by the sustaining of the demurrer to that plea, because the amended third plea, to which the demurrer was overruled, set up the same defenses, with the additional one of a secondary prescriptive right in the defendant to clean and repair the race in the manner in which he did it on the occasion complained of in the declaration, and evidence was freely introduced at the trial of the case in support of all of those defenses.

Nor was any error committed in overruling the defendant's demurrer to the second replication by the way of new assignment to the third amended plea. That is a well-recognized style of pleading for which forms have been provided in the Code. Poe on Pleading, § 684, etc., Code Pub. Gen. Laws, art. 75, § 24, subsecs. 78–80. It is used with especial propriety in cases of trespass, where the defendant, as in the present case, pleads a right of way or other easement by way of justification, and the plaintiff desires to show that the acts complained of were in excess of the right set up by the plea. "In all these cases, if the plaintiff simply traverses the defense set up, the issue will be as to the existence of the facts constituting the alleged defense, and the evidence will be con. fined to such inquiry." Poe's Pleading, 687, and cases there cited. The other demurrers to which we have referred related rather to matters of form than substance, but we find no reversible error in the disposition of them made by the cour below.

The appellee as plaintiff below offered four prayers, of which the first and second were granted as modified by the court and the fourth was granted as offered. The third prayer was rejected. The first prayer, in effect, charged that even if the jury found from the evidence that the defendant and those under whom he claimed title to his farm had used and enjoyed the race for the purpose of conveying the water to the farm exclusively, adversely, and continuously for more than 20 years prior to the suit, and had for that time been accustomed to enter the lands of the plaintiff and clean and repair the race, and that in October, 1904, the race required to be cleaned and repaired in order to secure to the defendant the full flow of water which he had been accustomed to enjoy, and that the defendant and his servants then entered the plaintiff's land to clean and repair the race and widened it by cutting down its banks, and did more damage to the plaintiff's land than was reasonably necessary to secure to the defendant such flow of water the plaintiff was

entitled to recover. The second prayer was to the same effect, stating the proposition conversely that the plaintiff was entitled to recover, unless the jury found that the cutting down of the banks of the race and widening it which had been done by the defendant was reasonably necessary in order to so clean and repair it as to secure to him and his farm the benefit of the water accustomed to flow therein for 20 years. The prescriptive right of the defendant to use the race, and the further right, whether incidental to the first one or separately prescriptive is immaterial, to enter the plaintiff's land to clean and repair the race whenever necessary, were admitted by the plaintiff. The only seriously contested issue of fact in the case was whether the acts committed by the defendant and his servants in October, 1904, and complained of in the declaration, were or were not in excess of his rights. The case was fairly put to the jury by the plaintiff's first and second prayers in the form in which they were granted. The defendant as appellant urgently contended before us that these prayers were erroneously granted because he, having entered the plaintiff's land under a prescriptive right which implied a grant, could not be regarded as a trespasser ab initio, if after he got in he had committed wrongful acts in excess of his right. He insisted that therefore no recovery could be had against him in this action of trespass q. c. f., but resort must be had by the plaintiff to an action vi et armis or on the case. Many authorities sustain the somewhat technical proposition that, as the gist of trespass q. c. f. is the injury to the right of exclusion and not the injury to the land itself, a defendant who enters the close by virtue of a grant or license from the plaintiff, and then forcibly abuses his right, cannot be regarded as a trespasser ab initio, for that would be to permit the plaintiff to punish, for a subsequent wrong, an entry which had been made by his own license. The general rule has been stated to be otherwise by our predecessors in Walsh v. Taylor, 39 Md. 599, where this court, speaking through the late Chief Justice Alvey, said: "There is no doubt of the general principle that where a person has a special privilege or authority to enter upon the premises of another to seize goods, or do other acts, and he exceeds his authority by doing what he was not authorized or justified in doing, he becomes a trespasser ab initio. All his subsequent acts are trespasses, and he is in the same position as if he was a perfect stranger, acting without color or excuse or justification."

It was, however, not essential to the plaintiff's right of recovery in the present case to show that the defendant was a trespasser ab initio. He was charged in the declaration with breaking the close and forcibly committing various unlawful acts therein as com. ponent parts of the wrong complained of.

Under such circumstances this court has sustained the right of the owner of the close to sue in trespass q. c. f. for the whole wrong and to recover for all or any of the trespasses as his case may be sustained by the proof. In Moats v. Witmer, 3 Gill & J. 118, the vendor of a farm by agreement with the vendee made after the sale of the farm was to have the grain in the ground with the right to return and thresh it, the straw to be left on the farm for the use of the vendee. The vendor or his assignee afterwards, by virtue of the agreement, entered on the farm which was then in possession of the vendee and cut the grain and hauled away both the grain and straw, and never returned the latter. The vendee instituted an action of trespass q. c. f. against the vendor's assignee who had entered his farm and taken away the grain and straw, and recovered a judgment. The lower court at the trial of the case before it refused to instruct the jury on the prayer of the defendant. "That as the defendant had a right of ingress and egress to cut the grain and get it out and remove it, the plaintiff is not entitled to recover in this action on account of his removing the grain with the straw before it was threshed." This court on appeal affirmed the action of the judge below, holding that to have granted the instruction would have trenched upon the province of the jury in determining quo animo the defendant entered, as the intent stamped the character of the entry, and, if he entered for the purpose of removing the grain in the straw and threshing it elsewhere, his right of entry no longer protected him, and he stood in no better predicament than any other trespasser. In the opinion in Moats Case it is said: "Whatever may be the law as to a plaintiff's right to recover substantive damages for acts of the defendant, not amounting to a trespass vi et armis, but which may be the foundation of a separate action on the case, when charged in a declaration in trespass q. c. f. as a component part of the outrage complained of, there cannot be a doubt that, if such acts do amount to a trespass vi et armis, they may be united with the action of trespass q. c. f. and the same damages recovered therefor as if a separate action had been brought. And the plaintiff is entitled to a full indemnity for both or either of the trespasses as his case may be sustained by proof." Moats Case was cited and relied on in Long v. Buchanan, 27 Md. 519, 92 Am. Dec. 653. The acts complained of in the present case after the defendant entered, having been done with force, amounted to a trespass vi et armis. The general rule as to the joinder of actions is that any two causes of action of the same nature and on which the same judgment may be given can be united in the same suit. Wil

llams v. Bramble, 2 Md. 318; Gent v. Cole, 38 Md. 113; Gladfelter v. Walker, 40 Md. 1; Barr v. White, 22 Md. 259; P. W. & B. R. R. Co. v. Constable, 39 Md. 156; Mediary v. McAllister, 97 Md. 491, 55 Atl. 461; Poe Pleading, § 282-285, Redemptorists v. Wenig, 79 Md. 348, 29 Atl. 667. The plaintiff's fourth prayer upon the measure of damages is free from objection.

The appellant, as defendant below, offered five prayers, of which the court rejected the first two and granted the other three with certain modifications. The first two prayers were demurrers to the evidence, the one asking the court to rule that, "under the pleadings and evidence," there was no legally sufficient evidence to entitle the plaintiff to recover, and the other asking it to rule that "under the pleadings, evidence, and admissions" there was no legally sufficient evidence to entitle the plaintiff to recover. Both of these prayers were properly rejected. The plaintiff and her husband, both of whom had lived on her farm for 30 years, and Arthur C. Englar, who had lived on it for 21 years, all testified that they were familiar with the race, and that the defendant and his servants, when they worked on it at the time in the declaration mentioned, had materially widened and enlarged it beyond what had been its size prior to that time, and had thrown on the plaintiff's land the material excavated in cleaning and enlarging it. There was, of course, evidence of an opposite tenor introduced on behalf of the defendant, but in view of the testimony to which we have averted it would have been improper to have granted the defendant's two prayers taking the case from the jury. We deem it unnecessary to notice at length the other prayers of the defendant, which the court modified before granting them. We have already stated the substance of the plaintiff's prayers, which, as modified by the court, correctly instructed the jury as to the law of the case. We find no error in the changes made by the court to adapt the defendant's prayers to the same view of the law of the case. Both of the two exceptions to evidence were taken to the court permitting the cross-examination of the defendant and his son, when on the witness stand, as to the different uses to which they put the water that flowed through the race, and as to the manner in which they cleaned the race. The answers elicited by the questions objected to were not of a character tending to injure the defendant, but, in any event, we think they were admissible for the purpose of reflecting on the character of the alleged trespass.

Finding no reversible error in any of the rulings of the court below, we will affirm the judgment appealed from.

Judgment affirmed, with costs.