Appeal from the Superior Court of Baltimore City; Foster, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Horney, J., delivered the opinion of the Court.
This is the fifth episode in the saga of the legal battles that ensued as a consequence of the Dundalk Holding Company having encroached upon a strip of land -- 132 feet long and varying from 36/100th to 95/100ths of a foot in width -- owned by Andrew J. Easter when the holding company innocently erected thereon a part of one of the side walls of a moving picture theater after it had acquired title to its land in August of 1945.
The first episode, an action of ejectment brought by the invaded owner against the encroaching owner, resulted in the jury finding encroachment and the entry of a judgment on the verdict in favor of Easter, and Dundalk appealed. The judgment of ejectment was affirmed in Dundalk Holding Co. v. Easter, 195 Md. 488, 73 A.2d 877 (1950).
In the second episode, reported in Easter v. Dundalk Holding Co., 199 Md. 303, 86 A.2d 404 (1952), an action in equity by Dundalk to restrain Easter from enforcing his judgment, the lower court refused to grant the injunctive or other relief prayed for, but entered a decree assessing the value of the land. On appeal, we refused Dundalk's prayer, based on the doctrine of "comparative hardship," that the enforcement of the judgment be enjoined, and reversed the decree.
While the third episode, reported as Easter v. Dundalk Holding Co., 199 Md. 324, 86 A.2d 477 (1952), did not arise directly out of the encroachment, this action at law by Easter against Dundalk for damages based on loss of lateral support, is nevertheless a part of the perennial dispute between the parties and is still a bone of contention in the mind of Easter. For the purposes of this case, we need only note that the judgment for costs against Easter was affirmed because there was no evidence to support an award of damages.
The fourth episode -- Dundalk Holding Co. v. Easter, 215 Md. 549, 137 A.2d 667 (1958), cert. den. 358 U.S. 821 (1958), reh. den. 358 U.S. 901 (1958) -- was really a part of the first episode. When it was discovered that it was impossible for the sheriff to enforce the writ of habere facias possessionem issued on the judgment of ejectment, Easter petitioned
the lower court for mandatory injunctive relief to require Dundalk to remove the encroaching wall of the theatre in accordance with the judgment. The court granted the relief sought and Dundalk appealed. On appeal, this Court, applying the doctrine of comparative hardship in this instance,*fn1 reversed the order appealed from because the lower court had not applied equitable principles. In so doing, it was stated that the invaded owner was not without remedies in that an equity court has power to give him an option of tendering a deed for the land encroached upon for a fair price, or remit him to the law court to seek the damages he suffered by reason of the encroachment.
According to the record of this fifth episode, it appears that Easter -- possibly in anticipation that he might have to seek damages eventually for the encroachment in lieu of actual removal -- had filed an action at law for damages caused by the encroachment in October of 1952. After the lapse of seven years, during which the suit was permitted to lie dormant, Easter, in November of 1959, applied for and was permitted to amend the original declaration, and, when the demurrer to the amended declaration was sustained, he filed a second amended declaration in August of 1961. Unfortunately, the last amendment was just as confusing and unintelligible as the first. Therein, in addition to seeking damages for the encroachment, he attempted to revive his claims for the actual removal of the encroachment and damages for loss of lateral support, both of which were barred by res adjudicata. He further sought to recover damages for loss of his job with the Navy, loss of profits from sales of adjoining land, loss of rentals due to abandonment of development of the property, and for outlays of legal fees, litigation costs and other expenses, he claimed he suffered
as a result of prosecuting and defending the series of litigation arising out of the encroachment.
At the trial before a jury, he read into the record from an itemized list, designated "Exhibit A," which apparently he prepared as a guide for the jury in its "assessment of damages," but, except for the production of certain irrelevant documents, plats and a photograph, there was no proof whatsoever of any ...