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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 390   View pdf image (33K)
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390 HIGH COURT OF CHANCERY.
In opposition to the answer and this witness, the complain-
ant has examined several gentlemen of the highest respecta-
bility, and although their testimony, if standing alone, might
be sufficient to make out his case, it seems to me impossible to
give it that effect when it is encountered by evidence with
which it is perfectly compatible, but which must conduct the
mind to an entirely different conclusion.
The counsel for the complainant has insisted that the evi-
dence of Mr. Charles H. Pue, which merely speaks of con-
versations between the father of the complainant and the de-
fendant, is not sufficient to extinguish the right of way, because
such right cannot be extinguished by parol, and refers to the
case in 5 H. & J., 467, and other authorities, to sustain the
position.
It is very true, that a right of way once established by pre-
scription, (which presupposes a grant,) or by a grant, cannot be
extinguished by a. parol agreement, but this, by no means,
proves that when an attempt is made to make out a title by
prescription, founded upon an adverse and uninterrupted user
for a series of years, that it is not competent to the defendant
to prove by parol that the user was the result of his leave and
favor, and not of a claim of right in the other party. I am,
therefore., of opinion, that the injunction must be dissolved.
With regard to the fact which is said to have arisen since the
filing of the original answer, and which the defendant seeks to
bring forward by a supplemental answer, the authorities seem
to show that it cannot be brought forward in that way. The
proper mode in such cases is to file a bill in the nature of a
supplemental bill, which seems to be a bill in the nature of a
pica, puis darrien continuance, at the common law. Story's
Eq. PI. see. 903; Taylor vs. Titus, 2 Edw. Ch. Rep., 135;
2 Daniell's Ch. Pr., 914, and note.
E. HAMMOND, for Complainant.
J. T. B. DORSEY, for the Defendant.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 390   View pdf image (33K)
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