Miller, J.,
delivered the opinion of the Court.
In this case an action of trespass guare clausum fregit was brought on the 5th of June, 1883, by the appellees against the appellant. The declaration avers “that the defendant, on. various days and times, and frequently within three years next before the institution of this suit, broke and entered a certain .close of the plaintiffs, situated within the City of Baltimore, and ran and drove large cars, drawn by locomotives upon and over the said close, against the will of the plaintiffs, and to their great damage.” The case was tried before a jury upon issue joined on the plea of non cul., and at the trial an exception was taken to the ruling of the Court upon the instructions asked for by the parties respectively.
*330■ The undisputed facts of the case are substantially as follows: In February, 1851, Mrs. Clarissa Boyd became the owner in fee of a long narrow lot of ground, in the City of Baltimore, fronting about eighteen feet on the southwest side of Fort Avenue, and running back about twelve hundred feet to the water. Mrs. Boyd died in May, 1871, intestate leaving her husband surviving her, who consequently became entitled to a life estate in this lot. The husband died in July, 1881, and this suit was brought by the four children and heirs-at-law of Mrs. Boyd. On the 17th of July, 1869, the Mayor and City Council of Baltimore passed an ordinance providing for the condemnation and opening of certain streets between Fort Avenue and the water, and the line of condemnation crossed this Boyd lot. The ordinance recites that application for its passage was made by the Baltimore and Ohio Railroad, and one of its conditions was that it was to be inoperative unless and until the said company shall enter into an agreement with the city to pay all damages that may be awarded to owners of property, over and above the benefits assessed. On the same day another ordinance was passed, by which the city granted permission to the Railroad Company to construct and operate a railroad from its Locust Point line along the beds of the streets so to be condemned and opened, so as to make a connection by water with the Philadelphia, Wilmington and Baltimore Railroad. Proceedings for condemnation were duly had under the first of the above ordinances, and in June, 1871, the company duly paid to the city collector the excess of damages over benefits awarded, amounting to $6611.98. In 1872 and 1873 the company constructed its branch road with two tracks in the beds of these streets, and in 1877 laid a third track. Since their construction, these tracks have been used by the company as part of its main line, and at least a dozen trains pass over them daily. The plaintiffs’ lot lies in an open meadow without *331buildings or enclosures, and but for tbe construction of the railroad across it, is in the same condition now as at the time of the condemnation. The tracks of the road are laid at the grade of the street, but the street is graded only to the width of the tracks, about thirty-six feet — so that the space occupied by the road as it passes through, this lot is eighteen feet one inch by thirty-six feet. With this statement of the facts as to the locus in quo, and the character of the trespass complained of, we are prepared to consider the questions presented by the rulings to which the exception was taken.
First. — The defendant’s second prayer was properly rejected. It appears that under the condemnation proceedings the sum of $110 was assessed as damages, for that portion of the plaintiffs’ lot taken for the bed of this street, and $1 each as benefits to the portions on either side of the street. The balance of $108 damages was inclúded in tbe amount paid by the railroad company to the city, but the city never paid or tendered the same to the owners of the lot, nor was it invested in city stock as provided by the Act of 1818, ch. 143, until the 14th of December, 1883, after the commencement of this suit. It is plain that without such payment, tender, or investment, the city acquired no title, or right of entry, for the purpose of appropriating the plaintiffs’ property to public use, even though the condemnation proceedings may have been in other respects regular. This attempted condemnation can, therefore, afford no defence to this action. The entry upon this lot, either for the purpose of making •a street through it, or for constructing a railroad upon it, was clearly a trespass, and the investment of the money in December, 1883, has no effect whatever upon the right of the plaintiffs to recover for the -trespasses complained of and committed down to the bringing of their present action. Such is the effect of our recent decision in the case of Mayor and City Council of Balt. vs. Hook, et al., *33262 Md., 371. The question whether if the money had been duly paid, and the street had been duly condemned across the plaintiffs’ lot, the ordinance granting permission to the railroad company to lay its tracks upon and operate a steam railroad over it, would have been valid and effective to authorize the defendant to make such use of it, without compensation therefor to the plaintiffs, is. one not presented by the record, and we therefore refrain from expressing any opinion upon that subject.
Second. — The original entry and trespass was during the life-tenancy of Mr. Boyd, and while the plaintiffs’ interest was in reversion, and now the defendant’s counsel insist that the plaintiffs have mistaken their remedy. Their argument is that the defendant entered and appropriated to its use a certain portion of the plaintiffs’ land,, and has since continuously occupied the. same with its. tracks and roadway and by running trains of cars over it daily; that it thus became the disseisor of the life-tenant, and has ever since held exclusive adverse possession ; that its conduct, if wrongful, was a continuing uninterrupted trespass and not a serie? of oft-repeated trespasses ; that the plaintiffs cannot recover for the disseisin of the life-tenant, nor can they recover in this action for acts done since the disseisin (for which alone the declaration goes) for they have had no possession of the property to enable them to maintain trespass quare clausum fregit, and they should therefore have sued in ejectment. This argument is not without force, and the legal proposition upon which it is founded is free from difficulty. As was said by this. Court in Gent vs. Lynch, 23 Md., 64, “the gist of this, action of trespass, is injury done to the possession, and in order, therefore, to maintain it, possession either actual or constructive by the plaintiff is necessary; a mere right of entry on lands is not sufficient if they be in the actual possession and occupancy of the disseisor; a disseiseethough he may maintain trespass for the original act *333of disseisin, cannot have this action for any subsequent injury until he has acquired the possession by re-entry.” Substantially the same rule is announced by the Supreme Court of Massachusetts, in Murray vs. Fitchburg Railroad Co., 130 Mass., 101, where it is said, “the proposition is an entirely plain one, that the owner of land cannot maintain an action of trespass for acts done by a disseisor during his disseisin, without a re-entry. But it is equally clear that if the owner is in possession of land, the act of disseisin by the disseisor is a trespass- for which he has his action, though he may not recover for the mesne profits or intermediate damage during the time he is disseised, until he shall by suit or otherwise have regained possession.” As to the law, there is, therefore, no difficulty, but a majority of the Judges before whom this case was argued, are of opinion, that the facts show no such ouster or disseisin by the defendant, as will prevent the plaintiffs from maintaining this action for the trespasses set out in the declaration. The defendant’s first prayer was therefore properly rejected.
Third. — Counsel for the plaintiffs have argued that as the original entry to construct the railway was tortious, the ties, rails and other structures affixed to the freehold by the company, became the property of the land owner, but this claim has been strenuously denied by the defendant’s counsel. Who is, under the circumstances of the case, the owner of these structures, is a question about which there is grave doubt, but we are of opinion it is not so presented by the record as to require us to decide it. It is supposed to arise, because the plaintiffs’ first prayer allows the jury to award such damages as will, in their judgment, amount to a fair compensation for the unauthorized use of these tracks by the defendant, by running trains of cars over them daily. But we are clearly of opinion the measure of damages in this case is in no way affected by, or dependent upon, the ownership of these structures. *334The only damages the plaintiffs can recover under the declaration in this case, (if they are not entitled to exemplary damages,) are damages done to their laud, — to their rights as owners of this close or lot — by the trespasses complained of in the declaration, that is to say, damages caused by the acts of the defendant in having on various days and times within three years next before the institution of this suit, driven large cars drawn by locomotives “ upon and over their said close.” Now in the nature of things, no greater damage could be done to this lot, or to the rights of the owners, by driving the cars across it on these tracks, than upon any other structures. In fact, if the tracks were well laid and kept in repair, the damage to the land by running trains of cars over it on such tracks would be less than in any other known mode of transit. The plaintiffs cannot under this declaration, recoven as damages, compensation for the use of these trades, upon the assumption that they were the owners of them, even if such damages could be recovered at all in this form of action. Neither is the measure of damages in any wise dependent upon the-“ value of the property,” or the “ sum awarded in the street condemnation proceedings,” as stated in the defendant's third and fourth prayers. ''
Fourth. — We are all of opinion the plaintiffs are not entitled to recover exemplary damages, and consequently that there was error in granting their second prayer, which allowed the jury to give such damages. This Court has, on many occasions, had this subject before it, and in the very recent case of Philadelphia, Wilmington and Baltimore R. R. Co. vs. Hoeflich, 62 Md., 300, 307, the question was very carefully considered, and we there said that “ to entitle one to such damages, there must be an element of fraud or malice, or evil intent, or oppression, entering into and forming part of the wrongful act. It is in such cases as these that exemplary or punitive damages are awarded as a punishment for the evil *335motive or intent with which the act is done, and as an example or warning to others. But where the act, though wrongful in itself, is committed in the honest assertion of a supposed right, or in discharge of duty, or without any evil or had intention, there is no ground on which such damages can be awarded." This, we are satisfied, places the doctrine upon the right ground, and the rule applies as well to cases of injury to property as to the person. A careful examination of the testimony in the record has convinced us that in the acts of the defendant in entering upon and building the tracks for their road over the plaintiffs’ lot, and the continued use of them down to the bringing of .the action, there is not a single one of the elements thus enumerated as essential to the allowance of such damages. The original entry, and construction of the tracks, were manifestly under the permission granted by the city ordinance, and upon the assumption, and. under the belief, that the street condemnation proceedings were in all respects regular and perfect. The company remained in the undisturbed enjoyment of its road for more than ten years, when its counsel received the fetter of the 5th of April, 1882, from the plaintiffs’ attorney. That letter stated that the plaintiff's had received no compensation for their land condemned for the bed of the street; that the ordinance for opening that street, required the railroad company to pay the compensation for property taken; and it further suggested that the company acquire hy purchase the plaintiffs’ interest in the entire lot, or the portion of it upon which the tracks were laid. To this the company’s counsel replied by letter of the 28th of April, 1882, that while the books of the city departments indicated that the damages awarded for the portion of the plaintiffs’ lot had not been paid, yet that the same books showed that the defendant had made all payments required of it by the ordinance, and that in his opinion the plaintiffs’ claim should be against the city and not against *336the railroad company. Counsel may have been mistaken in this view of the law, hut there is nothing to show that he acted in had faith, or that the company, in continuing to use the land under his advice, after the receipt of the letter from the plaintiffs’ counsel, acted in .a spirit of oppression, or from any evil motive or intent. Clearly this is not a case for punitive damages. •
(Decided 11th March, 1885.)
Judgment reversed, and new trial awarded.