tion from such a restriction. At all events the lawmaking body has manifested its intention to apply this provision to previously registered voters who have once declared, but subsequently desire to change, their party affiliation, and not to those who have declined to thus connect themselves with a political party, and we are not at liberty to bring this additional class of voters within the effect of the limitation by extending it beyond the plain meaning of the terms in which it has been defined. the word "Republican." This request wasually concludes to affiliate, may have been refused, and the present petition for a man- regarded as being equally entitled to exempdamus has resulted. The plaintiff's right to have the desired alteration made at the time proposed was challenged by demurrer to his petition upon the ground that such action on the 5th of April would precede by only a day the municipal primary election on the 6th, and would therefore be contrary to the provision we have quoted from section 182 of the election law, to the effect that no voter, after having once had his party affiliation registered, shall be permitted to make any change in his affiliation unless it shall be made at least six months prior to the day of the primary election. The demurrer was sustained, and the petition for mandamus dismissed, and the plaintiff has appealed. While the term "supplemental" is applied by the city charter to the registration directed to be held on the first and second Mondays of April preceding the municipal election in May, it is required to be entered upon the regular books of registry provided and used under the general election laws of the state, and is conducted by the same officials who serve at the registration of the city voters for all election purposes, and hence it is properly to be regarded as one of the intermediate registrations to which section 186 of article 33 of the Code refers as an occasion when a voter may declare, change or recall his affiliation. The controlling question, in our view of the case, is whether the plaintiff is to be regarded as a voter who has heretofore "had his affiliation registered," and is thus within the purview of the prohibition against any "change in his party affiliation" within six months of the primary election at which he proposes to vote. When he applied to be registered in October, 1914, he had the right, under the statute, "to have himself recorded as affiliated" with the political party to which he was inclined, and he had the alternative privilege of declining "to state his party affiliation." The plaintiff availed himself of the latter right, and he was accordingly noted in the proper column as "declined." | fect canceled, and to declare his party affiliaThe effect of this entry, in view of the provisions we have quoted, was to indicate the plaintiff's conclusion not to affiliate, for the time being, and for primary election purposes, with any political party. It seems clear, therefore, that he is not in the position of a voter who can be correctly said to have "had his affiliation registered." According to our construction of the existing statutes, a registered voter who has previously declined to affiliate with a political party is entitled to have the entry to that ef tion, at the supplemental registration to which we have referred, with the resulting right to vote in subsequent primary elections without restriction as to the time of their occurrence. Our conclusion, therefore, is that the plaintiff's application to the board of registry to strike out the former entry of "declined," and to record the party affiliation he desired, should have been granted, and the writ of mandamus to enforce that right ought to have issued. Although the writ would now be nugatory with respect to the plaintiff's participation in the late municipal primary election, it may be of service in securing his rights in reference to the primary election to be held in September of the present year and other such events in the future. There were other questions raised in the argument, but the view we have taken of the case renders their discussion unnecessary. Order reversed, with costs, and case remanded. The expressed object of the act was to prohibit voters, within six months prior to their participation in a primary election, from making a change, for that purpose, in their party affiliation previously and formally declared. There is no reference in this prohibition to voters who had declined to affiliate. The considerations of public policy upon which the law would prevent the shifting of affiliated voters from one party to another shortly before a primary election may have been supposed by the Legislature to have no application to the admission, for the first time to such elections, of voters who had theretofore refrained from qualifying themselves, under the statute, for that privilege. So far as the right to take part in a primary election is concerned the unaffiliated voter would appear to be in practically the same situation as one who is unregistered. A newly registered voter who records his identification with a political party is not subjected Code Pub. Civ. Laws, art. 75, § 80, provides to the six-month limitation of time as to that no warrant of resurvey shall issue in actions other than ejectment, unless there is a participation in the party's primary election, dispute about the location of the lands for the and the formerly “declined” voter, who event-injury to which damages are claimed, or unless (126 Md. 328) ANDREWS v. PITTS. (No. 18.) (Court of Appeals of Maryland. June 22, 1915.) 1. BOUNDARIES 54-OFFICIAL SURVEY-RESURVEY-STATUTES. the court shall be satisfied that plats are necessary for illustration. Section 81 provides that no warrant of resurvey shall issue in any action where the parties claim the land in dispute under the same title, except where they claim different parcels under the same title, and it appears that there is a dispute as to the location of the divisional line, and section 82 provides that where a warrant of resurvey shall issue in any action the party applying therefor shall first locate his claim and make such other location as he may think necessary to bring the cause fairly to trial. Held, that a warrant of resurvey can only issue on the court's order, or by agreement of the parties, that where the court, in trespass quare clausum, was satisfied that there was a dispute about the boundaries, it might issue a warrant of resurvey, although defendant had not taken defense on warrant, that on issuance of such warrant the rules of practice applicable to surveys made after defense on warrant applied, and that defendant could not then defend on warrant as matter of right and have a resurvey of the disputed lands. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 263, 268-277; Dec. Dig. 54.] 2. BOUNDARIES 54-OFFICIAL RESURVEY. Under Code Pub. Civ. Laws, art. 75, § 85, providing that in no action shall plats be considered as pleadings or evidence per se, where the title involved depends upon conflicting pretensions or disputed lines, and a warrant of resurvey is issued, the evidence must be restricted to such objects, etc., as are located on the plats; and, where plaintiff called the surveyor and other witnesses to prove the lines located on the plat which he relied on to show where his property was situated, defendant might show that those lines were not correctly located. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 263, 268-277; Dec. Dig. 54.] 3. TRIAL 234-INSTRUCTIONS-EVIDENCE. In trespass quare clausum, where there was no evidence legally sufficient to prove that the stone at a point on the plat returned by the surveyor was at the end of the eighteenth or at the beginning of the nineteenth course on the tract of land mentioned in the evidence and described in the patent, the granting of defendant's prayer that there was no evidence "tending to prove" such point, construed as meaning that there was no evidence legally sufficient to prove it, was not error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. 234.] 4. BOUNDARIES 54 OFFICIAL SURVEY METHOD. Where a corner or boundary is established at a point before lines in dispute are reached, a survey may begin at such point instead of going back to the beginning of the tract, but to assume that a stone not called for in any of the descriptions, and not explained beyond the then owner's statement that it was "a boundary stone of the mill site property" was the beginning of - a certain line or tract, and to then run the lines in dispute based on that assumption, was an improper method of survey. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 263, 268-277; Dec. Dig. 54.] 5. BOUNDARIES 3 COURSES AND DIS TANCES. Courses and distances govern, in the absence of a call or some proof of the end of a line. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. 3.] 6. BOUNDARIES 44 - INSTRUCTIONS-FORM AND SUFFICIENCY. In trespass quare clausum, the granting of defendant's prayer, stating "that if they shall find from the evidence that the plaintiff has not so located or proved the lines of 'Fair Dealing,' or the Henry D. Wright mill property, as mentioned in the narr., or that part of the said lines which are the division lines," instead of more definitely referring to the part of "Fair Dealing" known as the Henry D. Wright mill property, and of another prayer, speaking of "the lines of the tract of land called 'Fair Dealing,' commonly known as the Henry D. Wright mill property, as described in the narr.," instead of saying that part of the line of the tract," etc., was without injury, where what was meant was evidently understood. [Ed. Note.-For other cases, see Boundaries. Cent. Dig. §§ 209-211; Dec. Dig. 44.] Appeal from Circuit Court, Dorchester County; Robley D. Jones and Henry L. D. Stanford, Judges. Action by Joseph B. Andrews against W. Marion Pitts. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. J. Watson Thompson and Clement Sullivane, both of Cambridge, for appellant. V. Calvin Trice and T. Sangston Insley, both of Cambridge, for appellee. BOYD, C. J. This is an appeal from a judgment rendered in favor of the defendant (appellee) in an action of trespass quare clausum fregit, brought by the appellant. The narr. alleges that the defendant "wrongfully entered upon and cut down and carried away trees from all that part of a tract or parcel of land, called 'Fair Dealing' and commonly known as the 'Henry D. Wright mill property,' owned by the plaintiff in fee simple, lying and being in Hurlock district of Dorchester county, which is bounded on the north and east by the old mill stream and branch, and on the south and west by the lands of John P. Harper, W. Marion Pitts, Lizzie Barber, and Benjamin F. Merrick, as said lands stood in the year 1902." The defendant pleaded that he did not commit the wrongs alleged, and the trial of the case was begun. There then appears in the record: "Jury impaneled and sworn April 28, 1914. On motion, leave granted plaintiff for warrant of resurvey and to withdraw a juror. Juror withdrawn." In the docket entries a similar entry appears, and on May 20th a warrant of resurvey was issued. The appellant contends that the warrant was issued by the direction of the court, and not on his motion. The resurvey was made and the certificates, plats, etc., were returned by the surveyor and sheriff in pursuance of the requirements of the warrant. On November 11, 1914, another jury was impaneled which rendered a verdict in favor of the defendant. On that verdict there was a judgment for defendant for costs, from which this appeal was taken. At the trial of the case the plaintiff offered the patent for "Fair Dealing" and certain deeds in support of his title. He then offered the plat and certificate made by the surveyor | McH. If the jury agreed as to the proper and his testimony to explain the plat and mode of laying out the land, the court someobjects thereon. "Counsel for defendant then times entered up a judgment on its verdict. began a cross-examination of the witness by In the note to Shaw v. Lynes, 1 Har. & McH. asking him what he did on the first day he on page 18, Mr. Brantly gives a list of over went to the land to make his survey. Plain- 20 cases in each of which the warrant of tiff's counsel objected to the question as tend-resurvey was executed by a surveyor in the ing to impeach the plaintiff's survey and lo- presence of the sheriff "under the direction cation, there being no defense on warrant of a jury of the neighborhood." In Watkinand the survey having been made by direc- son v. Collins, 1 Har. & McH. 12, after severtion of the court, and the correctness of the al attempts a jury was finally impaneled location being admitted by the plea, but the which agreed upon a verdict, which was signquestion was admitted by the court, subjected and sealed by the surveyor, sheriff, and to the objection, wherefore plaintiff's counsel jurors, and the report of the case then stated to the court that he objected to any states: "Which being read and heard, the detestimony being taken by the defendant at- fendant, by his attorney, pleaded not guilty, tacking or in any way impeaching the loca- and issue was joined"-the survey being thus tion of the alleged trespasses of the defend-made before a plea was filed. The record ant, alleged in the declaration, and made by does not show whether defense on warrant the plaintiff under direction of the court." But the evidence was admitted subject to exception. The defendant's attorney then continued to cross-examine the surveyor, and he (his testimony being still subject to exception) explained to the jury the survey made for the defendant and the objects pointed out by his witnesses. The plaintiff moved to exclude the testimony admitted subject to ex-veyor in conjunction with the sheriff, as is ception, and, that motion being overruled, the plaintiff excepted. The action of the court is presented by the first bill of exceptions. 1. The theory of the appellant is, as stated in his brief, that: "When the defendant pleads not guilty of the wrongs alleged, and does not take defense on warrant, the location, as alleged, is admitted by the plea, and the plaintiff is not required to prove it, nor is the defendant allowed to gainsay it." was entered, but, if it was, it was not regarded as part of the pleadings. Somewhere about the beginning of the eighteenth century, or towards the end of the previous one, the practice of having a jury go upon the land and directing the surveyor how the location should be made was abandoned. After that the warrant was executed by the sur Under such circumstances, it was very properly said by Judge Dorsey in Addison v. Hack, 2 Gill, 221, 41 Am. Dec. 421, that: "In an action relating to lands, if the defendant does not see fit to take defense on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties." still the practice. In 2 Poe, § 470, it is said: "It seems probable, too, that what was at first allowed by the court upon application, and, perrecognized as a right, and that, in order to enhaps, only after cause shown, came soon to be title himself to a resurvey of the land, the defendant, after pleading not guilty, simply gave a direction to the clerk to enter on the docket the words 'defense on warrant'; and thereupon, without any formal application to the court, and without any special order from it, the plaintiff was required to issue his warrant of resurvey, As the record shows that there was a mo- and prove his title and possessory right to the tion by and leave to the plaintiff for a war-land described in the declaration by establishing rant of resurvey, we do not understand how its boundaries, courses and distances." the mere statement in the first bill of exceptions that the survey was made by "direction of the court" can in any way affect the defendant's right to dispute the correctness of the locations made by the plaintiff, unless it be, as seems to be contended by the appellant, that the defendant cannot have the benefit of the survey made by direction of the court, if he had not taken defense on warrant. If that be appellant's contention, we cannot agree with him, as we have no doubt about the right of the court to order a warrant of resurvey when satisfied that it is necessary, "for the better information of the said court and the jury in the truth of the premises," that the lands be carefully resurveyed and laid out, etc., as stated in the form given in 2 Harr. Ent. 785. Until about 1700 the practice in the Provincial Court of Maryland was to issue a warrant to the surveyor to lay out the land in dispute in the presence of the sheriff, who was commanded to summon and impanel a jury to go upon the land, and the surveyor was directed "to run the lines according to the patent and the direction of the Jury." 2 Poe, 470; McHy. on Eject. 60, and The plaintiff had burdens enough on him when defense on warrant was entered, and, if he received no notice that the defendant would take "defense according to his pretensions as they shall appear to be laid down on return of a warrant of resurvey" (2 Harr. Ent. 55), he had the right to assume that the defense was simply one of title and not of location. [1] But the abuse of the privileges of defendants under the practice as it became established was so oppressive that the act of 1852 (chapter 177) was passed. That made radical changes in the practice, and it seems to us that there can now be no question about the right of the court, when it is satisfied that there is a dispute about the boundaries, to order a warrant of resurvey to be issued, although the defendant has not taken defense the rules of practice applicable to surveys made after defense on warrant is taken apply. The defendant can no longer take de fense on warrant as matter of right, and have a resurvey of the disputed land. Section 80 of article 75 of the Code provides that: "No warrant of resurvey shall issue in any action of ejectment unless the court shall be satisfied that there is a dispute about the location of the lands claimed in said action; nor shall any issue in other actions unless there is a dispute about the location of the lands for the injury of which damages are claimed, or unless the court shall be satisfied that plats are necessary for illustration." And section 81 is: "Any action where the parties hold or claim under the same title the lands in dispute, no warrant of resurvey shall issue, except in cases where the parties claim different parcels under the same title, and it appears to the court there is a dispute about the location of the divisional line or lines." Application must therefore be made to the court, and the warrant can only issue on its order, or by agreement of the parties. Section 82 shows clearly that the warrant can be taken out at the instance of either party. It says: "Where a warrant of resurvey shall be issued in any action of ejectment or other action, the party applying for such warrant shall first make the location of his claim and pretension, and such other location as he may think necessary to bring the cause fairly to trial." But, if the court becomes satisfied that the ends of justice require a warrant of resurvey to be issued, there can be no reason why it cannot of its own motion direct it to be done, and if the warrant is ordered on motion of the plaintiff, or at the instance of the court, there can be no possible reason why there should not be the same rules as to locations as if it was taken out by the defendant. We have been speaking as if this was an action of ejectment, but there is as much, if not more, reason why what we have said should apply to an action of trespass quare clausum fregit. In Funk v. Hughes, 5 Gill, 315, which was an action of trespass, the warrant was taken out by the plaintiff, as is shown by an examination of the record, and that was before the act of 1852 was passed. It was there held, quoting from the syllabus for convenience, that: no resurvey is required by the pleadings, if one is made and offered in evidence, it is inferred that it was authorized for illustration only," and cites N. Y. P. & N. R. Co. v. Jones, 94 Md. 24, 50 Atl. 423, in support of that contention. But that was a wholly different case from this. There was no dispute there as to the location of the lands for the injury of which damages were claimed, and hence the court said that, "it must be considered that the plat was authorized for illustration only." Judge Pearce, after quoting from Addison v. Hack, 2 Gill, 221, 41 Am. Dec. 421, was careful to refer to the fact that, since that case was decided, the act of 1852 was passed, by which it was provided that "in no action shall plats be considered as pleadings or evidence per se." Section 85 of article 75. The clear inference to be drawn from that decision is that, where the title involved depends upon conflicting pretensions or disputed lines and a warrant of resurvey is issued, the evidence must be restricted to such objects, etc., as are located on the plats. Moreover, in Peters v. Tilghman, 111 Md. 227, 73 Atl. 726, which was an action of trespass quare clausum fregit, the defendant first took defense on warrant, but that was countermanded, and a warrant of resurvey was granted to the plaintiff and a survey and plat filed. Judge Pearce delivered the opinion in that case, and distinctly recognized the necessity for locating objects on the plat, in order to have them considered by the jury, where the warrant was taken out by the plaintiff and the defense on warrant had been countermanded. But the description of the property in the narr. in this case, as shown above, suggests the necessity for a warrant of resurvey. It would have been impossible for a jury to have properly determined where the lands of the defendant and other parties named "stood in the year 1902" without a survey, even if the other lines of plaintiff's lands were conceded to have been correctly located. In addition to what we have said above, we cannot understand upon what theory the plaintiff could be permitted to prove by the surveyor lines located on the plat which he relied on to show where his property was sit"Under issue joined in an action of trespass uated; but the defendant could not be perupon the plea of not guilty, the plaintiff may remitted to cross-examine the surveyor, or atcover damages for any trespass by the defendant of the nature described in the declaration, and committed anywhere within the lines of the tract of land mentioned in it. But, where plats are deemed requisite, it is necessary for the plaintiff to locate correctly, not only the tract of land claimed, but the spot within the lines of such tract whereon the trespass was committed, and of which the plaintiff complains, and to such spots his proof must be confined. Places of trespass, of which the explanations are silent, cannot be proved." See, also, what was said in Parker v. Wallis, 60 Md. 15, 45 Am. Rep. 703, about the importance of a survey under the order of court in such cases. tempt to show that those lines were not correctly located. Even if the failure of the defendant to take defense on warrant did have the effect the plaintiff claims-that is to say, that he admits, by merely filing the general issue plea, the location of the trespasses― still, as the plaintiff did call the surveyor and other witnesses for the purpose of proving it, surely the defendant could not be penalized for not taking defense on warrant to the extent of not being permitted to meet the evidence offered by the plaintiff, if the plat was only intended to be used for pur We are then of opinion that there was no error in the ruling in the first exception, and the ruling in the second exception is equally - free from error and practically presents the same question as the first. [3] 3. The plaintiff offered seven prayers, all of which were granted, except the fourth, which was rejected because it was covered by the first, and no exception was taken to its rejection. The appellant has no reason to complain of the court's action on his prayers, but he does complain of the ruling on the defendant's first, second, and fifth prayers which were granted, and alleges that they are inconsistent with those granted at his instance. We will first consider the defendant's fifth prayer, which instructed the jury "that there is no evidence in this case tending to prove that the stone at B on the plat, returned by the surveyor in the sheriff's return," is at the end of the eighteenth course or at the beginning of the nineteenth course on the tract of land, mentioned in the evidence, and described in the patent as 'Fair Dealing.'" It is peculiarly expressed-no evidence "tending to prove"-but we suppose it meant that there was "no evidence legally sufficient to prove," etc., and, as we are of the opinion that such was the case, there was no reversible error in granting that prayer. There is no evidence that that stone was at the end of the eighteenth or the beginning of the nineteenth line of the tract. No stone is called for at that point, either in the patent for "Fair Dealing," or in the description in the deed from William Dines to Lockwood and Wright for the mill site property. H. Martin Wright testified that: "He was born and brought up on that part of Fair Dealing' which was always known as the old Henry D. Wright mill property within 100 yards of the stone marked on the plat as letter 'B.' It was in their front yard. * * It is part of an old millstone, and a very heavy stone, being about 18 inches in diameter, and firmly sunk in the ground. His father pointed it out to him as a boundary stone of the mill site property bought from Dines and Lockwood. He had not been there for over 30 years until that morning of the survey, when, after he had located the spot where the dwelling house had stood by the remains of a chimney, he knew at once where the stone was and walked straight to the spot. The stone was in a little patch of weeds and briars and covered over by the light, sandy soil; but upon scratching around with his foot he soon found and uncovered it, and pointed it out to the surveyor." There is another stone located at what the appellant claims is at the end of that line. Mr. Wright testified as to that: "The next stone, down the hill and in the branch, he knew was there because his father one day pointed out the spot, and said another boundary stone of the property was there in a patch of briars. Witness did not go to look at it, and never saw it until the day of survey, but knew it was there, and, after locating the first stone at letter B, he had no difficulty in walking down and finding this second stone, and he pointed it out to the surveyor." "That he has lived a mile and a half from the Henry D. Wright mill property since 1871. Knew Henry D. Wright from that time on. For several years he was around the home place at the one was found marked letter 'B' on the plat. the mill. He never saw any stone there where There used to be a stone about 100 yards from the mill, and a road running by it about here (indicating a spot on the plat not located, and in a different direction from letter B)." Thomas J. Hackett testified "that in a practical way he has known this Henry D. Wright farm all his life." About a year and a half before, he and another bought the Henry D. Wright mill property, excepting the part across the mill stream in dispute. He was asked by Mr. Martin Wright if he could show him where the old mill site was, and he did show him. Mr. Wright then found the stone, but Mr. Hackett said he had never seen it before. That is all the evidence in the record on the subject. Nor [4, 5] It will be observed that none of the witnesses pretended to say what boundary, or at the end of what line, stone B was. is it shown who put the stone there, or by what authority it was done. As we have seen, no stone is called for, and the only evidence by which it is attempted to show it was connected with this property is that the then owner said it was "a boundary stone of the mill site property." None of the lines of "Fair Dealing" prior to the nineteenth or of the mill site property prior to the thirtyeighth were run, nor were any of the previous corners established. We cannot give our sanction to the method adopted on this survey in locating the divisional lines in dispute. Of course, if a corner or boundary is established at a point before the lines in dispute are reached, a survey may begin at such point, instead of going back to the beginning of the tract; but to assume that a stone, not called for in any of the descriptions, and not explained beyond what we have shown above, is the beginning of a certain line of a tract, without any proof as to that, and then run the lines in dispute based on that assumption, would be a dangerous rule of location to adopt. It would enable the owner of a property to fix the boundaries of his own property for the benefit of himself or his heirs, if he could plant a stone where he pleased, call it "a boundary" of a tract, and then when he is dead have his son testify to such facts as we have in this case, without any explanation as to who planted the stone, or by what authority it was done. Of course, we do not mean to intimate that either the deceased Mr. Wright or his son did or said Rink Phillips, another witness for appel- anything improper, but we only refer to what |