63 Md. 325 | Md. | 1885
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.
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.,
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
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.
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
Judgment reversed, and new trial awarded.