delivered the opinion of this court.
This is an action of trespass on the case, brought by the appellant against the appellee, to recover damages alleged to have been inflicted on her reversionary interest in a certain house, in the city of Baltimore, by the manner in which he built a stable adjoining it; the particular damage complained of being, the driving into the northern wall of her house certain spikes, by which the southern side of his stable was upheld and supported, and in the over-lapping of a portion of her northern wall, and the placing upon its top and adjoining roof, tin, &c.
The plaintiff to prove her case, gave evidence that at the *72time, and before the happening of the acts complained of, her tenant was in the possession of the house, for which, the latter as tenant, paid rent. She also gave testimony, that spikes had been inserted into her wall, and tin placed upon a portion of her wall and roof by the defendant. The plaintiff then asked the witness, Myers, the following question: “Has any effect been produced upon the marketable value of the plaintiff’s house in Calvert street, by the erection adjoining thereto of the defendant’s stable mentioned in the declaration?” The court refused to allow the question to be put, and this constitutes the plaintiff’s first bill of exceptions. Perhaps it would have been the more advisable course to have withheld the objection to the admissibility of the evidence, or taken it subject to exception, until all the testimony in the cause had been received; but, as it was the right of the counsel of the defendant to object at the time of the offer, it was the obligation of the court to decide it at that time, and we concur with it in the propriety of its rejection. It was competent to the plaintiff to show by evidence, that the marketable value of the house had been diminished by the- injury complained of, to wit, the driving of the spikes and the oyér-lapping of her wall, but not by the erection of a stable adjoining her property. The erection of a stable in a particular place, may, or lhay not, affect the marketable value in the neighborhood. But this is not the injury complained of in this case; it is the manner of its erection in the use and injury of the house of the plaintiff. Had the question been so confined, it would have been proper.
In addition to the evidence contained in the first bill of exceptions of the plaintiff, testimony of a similar character to it was offered by the plaintiff, with the additional fact, that the plaintiff had effected, in her own name, an insurance on the house. The defendant to support the issue joined on his part, offered in evidence a paper purporting to be a deed of trust, dated the 25th June 1844, from James P. Wilson to John Smith Hollins and Benjamin H. Wilson, by which the grantor reserves to himself during life, the right to sell and dispose of the house in question, but if he should fail to do so then, and in that event, “in trust for the proper use, benefit *73and behoof of Mary Jane Hollins Wilson, the daughter of the party of the first part, her executors, administrators and assigns, and to, for and upon no other use, trust, interest or purpose whatsoever.” The defendant also gave evidence by a witness, that he believed the signature, J. P. Wilson, to be the genuine hand-writing of James P. Wilson, father of plaintiff.
On this state of case, the plaintiff and the defendant, each asked an instruction from the court to the jury, the former of which was refused, and the latter granted with an addition.
The instruction given, substantially told the jury, that if they believed the house alleged to have been damaged, was the same as that mentioned in the paper given in evidence by the defendant, that then the plaintiff could not recover, and, that the trustees mentioned in that deed were the proper parties to bring the action. The prayer of the plaintiff denied, that even if the facts contained in the prayer of the defendant, and the instruction of the court, were found by the jury, the plaintiff was precluded from maintaining her action.
Both the prayer of the defendant and the instruction given by the court were erroneous. They were so because they assumed the existence of several facts, which, on their very hypothesis, ought to have been found by the jury. Besides this, they were wrong for other and stronger reasons. The jury might well believe that the house, the ownership of which was claimed by the plaintiff, was the same property mentioned in the deed given in evidence by the defendant, and yet that fact would not suffice to defeat the action of the plaintiff. So far as the record shows, the plaintiff did not claim, under that deed, nor was there evidence that the grantor in it ever had any right to execute any binding instrument like it. For anything this court can see, her title may have been wholly adversary to that claimed by the grantor in the deed.
But apart from these objections to the instruction given, we are of opinion, that on the facts disclosed in this record, the plaintiff could maintain her action. The defendant set up no title to the properly; he was, confessedly, a wrong-doer. The law is clear, that the party in possession, can maintain an ac*74tion against any one for trespass save the legal owner. This . doctrine was most distinctly recognized, after mature deliberation, and applied by analogy to a case very similar to the one before us, by the court of Exchequer, in Daintry vs. Brocklehurst, 3 Welsby; Hurlston & Gordon, 207, 210, and will be found also to be fully sustained by the authorities collected, and commented upon in the elaborate opinion in the case of Harker, et al., vs. Dement, 9 Gill, 11.
(Decided February 16th, 1859.)Judgment reversed and procedendo awarded.