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Blevins v. Mullan Contracting Co.

Decided: June 8, 1964.

BLEVINS
v.
MULLAN CONTRACTING CO., ET AL.



Appeal from the Circuit Court for Baltimore County (BERRY, J.).

The cause was argued before Brune, C.J., and Henderson, Prescott, Horney and Marbury, JJ.

Brune

BRUNE, C.J., delivered the opinion of the Court.

The Circuit Court for Baltimore County (Berry, J.) granted the motion of the three appellees for summary judgment. It did so on the ground that the plaintiff-appellant's suit against the appellees was in trespass and was barred by the three year statute of limitations, and that it was not a suit in ejectment, as to which the applicable period of limitations would have been twenty years (a period which has not yet run). The trial court also did not permit the plaintiff to file a new amended declaration changing her suit to one in ejectment. She appeals.

The original declaration was filed on June 28, 1957, against Baltimore County only. It alleged that the plaintiff was the owner of a certain tract of land, that the defendant in the year 1952 broke into and entered this property and "wrongfully

usurped to its own use a strip of the Plaintiff's land" bordering on a named highway, upon which it wrongfully entered and which it graded and surfaced with asphalt or black top and crushed stone, thereby causing the plaintiff to lose a sale, since the purchaser was unwilling to take her property "the front footage having been reduced by the aforesaid action." The plaintiff claimed damages of $10,000 and no other relief. The County filed the general issue plea, and did not file a plea of limitations.

Subsequently it was agreed that the County would institute condemnation proceedings and that the plaintiff's suit would be dismissed without prejudice. This was done, but the County abandoned the condemnation proceedings and the plaintiff's suit was reinstated in May, 1959, in accordance with a motion filed by the plaintiff which was headed "Motion to Re-Institute Suit for Trespass," and in which she described the original suit as being "for Trespass."

On November 20, 1959, the plaintiff filed her first amended declaration. It increased the claimed damages from $10,000 to $50,000, omitted any claim for the loss of a sale, and alleged that the grading and surfacing of the strip caused the plaintiff "to lose valuable front footage and to suffer irreparable damage."

The plaintiff filed her second amended declaration on September 19, 1960, and her third on August 1, 1962. By the second she added two of the appellees, The Mullan Contracting Company and Mullan Brothers, Inc., as defendants; and by the third, she added the third appellee, Chatim Corporation. In each of these declarations the date of entry was stated as May, 1952. Otherwise, they were unchanged from the first amended declaration. The new defendants filed pleas to these declarations, and their first plea to each of them was limitations.

The appellees filed their motion for summary judgment on February 11, 1963, and in it alleged that the cause of action set out in the third amended declaration was, on its face, barred by limitations. The plaintiff filed an opposing affidavit on February 14, 1963, in which she alleged inter alia that the suit was "for the purpose of reclaiming the land of the Plaintiff upon which the Defendants have unlawfully trespassed." The allegation

as to the purpose of the suit seems an argumentative legal conclusion advanced by the plaintiff, rather than an allegation of fact; and the principal question in the case has been presented to us, quite properly we think, as a question of law arising ...


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