
    LLOYD TYLER vs. CEDAR ISLAND CLUB, INC.
    
      Validity of Patent — Question for Equity — Action of Trespass— Possession to Support — Evidence—Nominal Damages.
    
    Since a court of equity is the proper tribunal to inquire into an alleged irregularity or fraud in a patent, an equitable plea, in a suit of trespass, asserting that the patent under -which plaintiff claimed was invalid as including non-contiguous land and navigable waters, was demurrable. p. 217
    The fact that the outlines of the tract described in a patent include navigable waters, contrary to Code, art. 54, sec. 49, would not render the patent wholly void. p. 217
    Where a tract of marsh land, of which a valid conveyance had been made to plaintiff club, by which it was used as a game preserve, was guarded by a watchman, who patrolled it several times a week, and who lived in a floating club house moored in a stream, and a considerable sum had been spent by the club in the construction of the club house, ducking blinds and an embankment for a fresh water pond, held that, in view of the nature of the property and of the use and occupation to which it was adapted, plaintiff had such actual possession as to be entitled to maintain trespass against one who entered without claim of title. p. 218
    Every unauthorized entry upon the land of another is a trespass, by which the owner sustains a legal injury entitling him ■at least to nominal damages. p. 219
    The admission, in an action of trespass, of immaterial evidence on behalf of plaintiff as to whether it made claim to the waters or beds of the navigable streams, intersecting its tract of land, or to a right of control thereover, held harmless. p. 219
    Testimony on behalf of defendant that the patentee through whom plaintiff’s title was derived never exercised any acts of ownership over the land, that it was not assessed to him for taxation until a comparatively ivecent date, and that for twenty years there had been a common use of the land for hunting purposes, for which purposes defendant had sought to use it, held, irrelevant, the land being in plaintiff’s possession under a title of record, and there being no opposing claim of title. p. 219
    That plaintiff’s predecessor in title, to whom a patent was issued, permitted the resort, of hunters to the land, did not justify the conclusion that he had abandoned the title in support of which he had obtained the patent, and which he had, ten years later, made the subject of a specific devise to his grandson who executed a deed thereof to plaintiff. p. 220
    
      Decided April 4th, 1923.
    
    Appeal from the Circuit Court for Wicomico County (Bailey and Duer,, JJ.).
    Trespass by the Cedar Island Club, Incorporated, against Lloyd Tyler. From a, judgment for plaintiff, defendant appeals.
    Affirmed.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattisos, Erhkr, Stocicbridge, and Oeeutt, JJ-
    
      James E. Ellegood, with whom were Ellegood, Freeny & Wailes on the brief, for the appellant.
    
      George H. Myers and Frederick W. C. Webb, with whom were Miles & Myers, Frederick H. Fletcher and Woodcock & Webb, on the brief, for the appellee.
   Urner, J.,

delivered the opinion of the Court.

By a patent issued in .1891 the State of Maryland granted to Oliver S. Horsey a tract of marsh land containing 2,880’ acres in Somerset County. The tract was patented as the “Rcsurvey on Broad Neck,” hut it is also known as “Cedar Island.” Tt is part of an area surrounded by the waters of 'Tangier Sound, Little Annamessex Eiver, Broad Greek and Pocomoke Sound, and is intersected by a number of creeks or inlets. The patent states that a special warrant of resurvey was obtained by the patentee under article 54 section 21 (now section 30) of the Code, which provides in part as follows: “Any person entitled to lands in fee simple and being in possession thereof and not desiring to add contiguous vacancy may obtain a warrant of resurvey from the land office * * *; and the surveyor of the county to whom such warrant shall be directed shall survey the lands to be affected thereby according to the possession and holding of the person obtaining such warrant, or those under whom he claims for the last twenty years, and shall take proof of such possession and holding.” The certificate returned by the surveyor, as the patent recites, was accompanied by depositions, taken as required by section 32 of article 54 of the Code, showing that the applicant for the patent and those under whom he claimed ownership* had held the resurveyed land in peaceable possession for the preceding twenty years. As authorized by the last cited section of the Code, in the absence of any objection after notice to the owners or occupiers of adjacent lands, the patent with which we are concerned in this case was issued in due course. Upon the death of Oliver S. Horsey, the patentee, which occurred in 1901, the Broad Neds or Cedar Island tract passed under" a devise in his will to his grandson, Oliver Horsey, who conveyed it in 1921 to the Cedar Island Club, Incorporated. It has been used by the club as a game preserve. For the protection of the right of possession which it claims the club has brought this suit in trespass against the defendant, who, in disregard of its protest, persisted in hunting ducks on the land described in its deed. From a judgment for the plaintiff, entered on the verdict of a jury for nominal damages, the defendant has appealed.

The first question to be considered is raised by a demurrer to a plea on equitable grounds to the effect that the patent through which the plaintiff’s title is said to have been derived was invalid because it includes “numerous islands in the waters of Pocomoke Sound and Tangier Sound not contiguous to Cedar Island, but separated therefrom by numerous navigable streams-, and because the- said patent covers large areas of valuable land or bottom covered by navigable waters contrary to the laws of the State,” “and because*the said patent is a fraud on the State of Maryland and contrary to the common law rights of its citizens.” The demurrer to the plea was sustained. This ruling was clearly correct. The validity of the patent could not be thus disputed. If it be assumed that the defendant had an interest which might enable him to contest the patent, upon the grounds pleaded, a court of equity would be the appropriate tribunal for such a proceeding. This was definitely decided in Cook v. Carroll, 6 Md. 104. While it was said in that case by the Court, through. Chief Judge LeGeand, that a court of law might “decide on the fact of the issue of a patent or on its genuine-_ ness, or its effect when opposed by another for the same land,” yet the Court adopted the view expressed by Chief Justice Marshall in Polk’s Lessee v. Wendall, 9 Cranch, 98, that an inquiry into an alleged irregularity or fraud in a patent should properly be conducted in a court of equity, which “may, on a view of the whole case, annex equitable conditions to its decree, or order what may be reasonable, without absolutely avoiding a whole grant.” A court of law has no such broad power to qualify its judgments. The fact stated in the plea, that the outlines of the tract described in the-patent issued to the appellee’s predecessor in title include navigable waters, contrary to the prohibition of the Code (article 54, section 49), would not render the patent wholly void. Patterson v. Jenks, 2 Peters, 235; Danforth v. Wear, 9 Wheaton, 673; Winn v. Patterson, 9 Peters, 663; White v. Burnley, 20 Howard, 235; Jarrett v. West, 1 H. & J. 501; State v. Reed, 4 H. & McH. 6; 32 Cyc. 1091; 22 R. C. L. 280. The declaration alleges that the defendant broke and ■entered the plaintiff’s close known as Cedar Island or Broad Neck, conveyed to it by the deed to which we have referred, and the plea fails to meet that charge.

The defendant excepted to the granting of the plaintiff’s first prayer, by which the jury were instructed that their verdict should be for the plaintiff corporation if they should find that it was in possession of the land described in the declaration, claiming title under the deed offered in evidence, and that the trespass alleged was in fact committed. It was proved without contradiction that on two occasions the defendant, in spite of warnings by the plaintiff’s watchman, hunted ducks on the dryland within the lines of its deed. There was no claim of title by the defendant, and he did not testify in the case. The right of possession claimed by the plaintiff was under a conveyance which the evidence does not tend to impeach. The tract was guarded by a watchman who patrolled it several times a week and who lived there continuously, having quarters in a floating club house moored in one of the creeks. About $13,000 had been expended by the plaintiff in the construction of the club house, in the installation of permanent wooden ducking blinds at a number of places on the tract, and in the erection of an embankment for a fresh water pond. In view of the nature of the property and of the use and occupation to which it is adapted, the plaintiff may be regarded as having been in actual possession and thus entitled, independently of its proprietary right, to maintain a suit in trespass against one who- entered without claim of title. Bloodsworth v. Murray, 138 Md. 631; Sadtler v. Peabody Heights Co., 66 Md. 5; New Windsor v. Stocksdale, 95 Md. 196; West v. Pusey, 113 Md. 569; Carter v. Md. & Pa. R. Co., 112 Md. 599; Tyson v. Shueey, 5 Md. 540; 1 R. C. L. 694; 2 C. J. 56. The instruction referred to was, therefore, rightfully granted.

The conclusion just stated has the effect also of sustaining the action of the trial court in refusing to withdraw the case from the jury.

By the second prayer of the plaintiff, which was granted, the jury were directed to award at least nominal damages, if they found in favor of the. plaintiff, even though the defendant’s entry resulted in no substantial injury. There was no error in this instruction. In the case of Balto. & O. R. Co. v. Boyd., 67 Md. 40, it was held that “every unauthorized entry upon the land of another is a trespass, and whether the owner suffers substantial injury or not, be at least sustains a legal injury, which entitles him to a verdict for some damages; though they may, under some, circumstances, be so small as to be merely nominal.”

Ten exceptions were taken to rulings on the admissibility of evidence. The first relates to the introduction of the plaintiff’s title papers. They were properly admitted. The second and tenth are not mentioned in the appellant’s brief, and we find no error in the rulings to which they refer. Testimony was admitted on the plaintiff’s, offer, contrary to the third exception, to the effect that the plaintiff never made any claim to the waters or beds of the navigable streams intersecting the tract to which it holds title. This was immaterial to the issue in the case, but it could not have caused the defendant any injury. The sixth and eighth exceptions were taken to the refusal of the court to admit testimony that the plaintiff claimed the right of control over the streams within its tract to the extent of permitting persons to fish in them only on condition of not interfering with the plaintiff’s hunting privileges. It is clear that the decision of the case could not properly have been affected by such testimony, and there was no error in its exclusion.

The fourth, fifth, seventh and ninth exceptions were concerned with rejected proffers of the defendant to prove that the patentee through whom the plaintiff’s title was derived never exercised any acts of ownership over the land, that it was not assessed to him for taxation until 1910, and that for twenty years there had been a common use of the island for hunting purposes. The proof of such facts would have been irrelevant in this case, in which the acts of trespass sued for were committed on land in the possession of the plaintiff under a title of record and there is no opposing claim of title by the defendant. It is the underlying theory of the defense that there, was a public right of hunting on the tidewater marsh lands of Cedar Island. But the State, by its patent recognized the tract as being properly subject to a pre-existing and continuing private ownership, to which the plaintiff has succeeded. The fact that the plaintiff’s predecessor, to whom the patent was issued in 1891, permitted the resort of hunters to the land, would not justify a conclusion that he had abandoned the title which he had taken pains to have supported by the patent and which he made the subject of a specific devise in 1901 to his grandson who executed the deed under which the plaintiff is now seized of the property.

Judgment affirmed, with costs.  