
    Thomas vs. Thomas.
    In an actibn of trespass q.c.f* Uie court refused to di- •' reotthe .]ury, that if the plaintiff, 20 years before brihsrinj^the action, run his land in the presence of the defendant to a point, marked , on the plots in the cause, as a boundary between his laild and the huid of the defendant, and the several lines from that point fo‘ certain other points, also- marked on the plots, as divisional lines between them; and if tbe defendant has at no time committed any trespass over said divisional .lines, in such case he is not a trespasser, ami not liable to the action, unless fie was previously warned or forbid to come to said
    Appear from Frederick County Court. Trespass for breaking and entering .the close of the plaintiff, (now appellee,) called Phe tlesurvey on Hazzard. The defendant, (the appellant;) pleaded the general issue. Á warrant of vesurvey was ordered and issued, and the lands in dispute were located and plots returned. The plaintiff at (he trial in August 1806, offered in evidence the patent of The Resurvey on Hazzard, granted to Notleij Thomas, on the 14th of February ]~S4; (hat the patentee entered and died seized, and that the plaintiff is his heir at law; and entered, &c. He further offered in evidence the plots and explanations; and the patents for the several tracts of land located thereon by him, and that the same are truly located by him on the plots, lie also offered evidence, that the defendant had cut down; cleared and cultivated, part of the land within said locations; that the plaintiff in Í8Ó0, before this suit was brought, forewarned a person whó‘ was working under the direction of the defendant within Said locations,- not to cut on his land, and which person; háving given the information to the defendant; wás directed by him to cease cutting there. He also offered evidence, that he had at two different times told different persons that he expected one day to' get the land now in controversy, but the defendant was not present at either of (hose conversa» íioús, and did not appear ever to fiáve heard of this claim»' The defendant then read in evidence the patent of a tract of land called Moreland, granted to him oh the 28th of June 1784.- He also gave in evidence the plots and explanations,- with the several locations by him made thereon, and offered to prove 'that such locations were' truly-made. He also read in evidence a record,- with the plots and explanations belonging thereto, of afirácti’on of trespasi instituted in Frederick counfy court by the plaintiff, against him the defendant, for breaking and entering the close of the plaintiff’called The Resurvey on Hazzard, to which the defendant appeared and pleaded the general issue, and a warrant of resurvey issued, and the lands in dispute were located on plots made and returned in that action. At the trial in that suit, the jury gave their verdict that the defendant was not guilty of the trespass complained of, and the plaintiff'was nonsuited. He also offered evidence, that the plaintiff and defendant in that action, and in the present action, are the same persons, and that the tracts of land, so far as in that record located, are the same as located in the present suit. That the pretensions and locations of the plaintiff on the plots in that record, of the land called The Resumet/ on Hobson’s Choice, from the end of the 41st line thereof to the end of the 44th line, correspond with the location as made by the defendant on the plots jp this pause. He also offered evidence, that the plain tiff’ ip 1782 acted as surveyor to run the division lines between ihe plaintiff' and defendant, and that the line's were run, and an apple tree was marked at the end of the 41st line of The Resurvey on Hobson’s Choice, in the presence of the plaintiff’ and defendant, as a corner between them. That from the apple tree so marked, the plaintiff run, as divisional lines between himself and the plaintiff, the lines located by him on the plots; and that the defendant has ever since that running been cutting and clearing the land on the west side of the said divisional libes. Other evidence was given by the defendant, which it is unnecessary to notice, it having no relation to the point decided by the court. The defendant then prayed the opinion of the court, and their direction to the jury, that il from the evidence they find that the plaintiff’, twenty years before the institution of this suit, run his land in presence of the defendant to the aforesaid apple tree, as a boundary between his lands and tfie lands of the defendant, and the several lines located by him as. divisional lines between them; and if the defendant has a.f no time committed any trespass over said divisional lines, that in such pase the defendant is not a trespasser, and not liable to this suit, unless he was previously warned or forbid to come to said linea. B,ut the county court, [Buchanan!, Ch, J. C/agett and SMiver, A. J.l refused to give the direction as prayed. The defendant excepted; and the verdict and judgment being against him, he appealed to this court
    
      The cause was argued before Chase, Ch. J. Nicholson, Gantt, and Earle, J. by
    
      Harper, for the Appellant;
    and by
    
      Shaajf, for the Appellee.
   JUDGMENT AFFIRMED,  