Bryan, J.,
delivered the opinion of the Court.
The Jacob Tome Institute of Port Deposit has appealed from a judgment rendered against it in favor of the administrators of James A. Davis, deceased. Davis brought an action of quare clausum fregit against the appellant, which was continued after his death by his administrators. The merits of the controversy depend on occurrences which took place many years ago. As might naturally be expected, some of them are involved in considerable obscurity. . Before considering in detail the rulings of the Court below, we will state the facts in evidence with their legal effect and consequences, so far as it may be necessary for a decision of the questions presented by the record.
The town of Port Deposit is situated on the eastern bank of the Susquehanna river. In the year eighteen hundred and twelve Hugh Beard made a plat which showed the division of a portion of the village into lots; and this plat was recorded among the Land Records of Cecil County. A number of these lots were exhibited on the plat as reaching down to the edge of the river, and a street thirty-three feet wide was described as beginning at the water’s edge and extending into the river. The western line of these lots and the eastern line of the street, and the edge of the river were coincident with each other. It will be seen that it was the purpose that the street should be constructed in the waters of the river immediately below its margin. In the year eighteen hundred and twenty-four, Sarah M. Thomas leased two of these lots to Elizabeth and Catharine White for the term of ninety-nine years, renewable forever. They were described as follows: “All those two lots or pieces of ground situate and being in a town called Port Deposit, on the northwest branch of the river Susquehanna, in the said *583county of Cecil, of which a plat was recorded among the Land Records of said county, the third day of April, eighteen hundred and fifteen, in Liber J. S., No. io, folio 500, and being two lots fronting each forty feet on Water street, and running back from the river north forty-five degrees, twenty minutes, east one hundred and sixty feet, containing twenty-three and a-half square perches of land, each being distinguished and marked on the said plat by the numbers thirty and thirty-one.” The plat mentioned in the lease is the one made by Hugh Beard. These lots were designated by distinct boundaries, and the quantity of land within these boundaries is stated with exactness. They were bounded on a projected street; but the land on which the street was to be constructed was under water, and did not belong to the lessor. The State being the proprietor of the bed of the river below high-water mark owned the land on which the street was to be made, although it was covered witn water. The lessees of the lots therefore could not acquire from their lessor any title to the bed of the streét, or to any part of it. In fact it was not lawful to construct the street below high-water mark without authority derived from the State. Before the street was made, the lessees owned a perpetual leasehold in the land down to high-water mark, and were therefore entitled to the ordinary riparian rights of alluvion and dereliction. But when a street thirty-three feet wide built'on the land of another proprietor should be interposed between them and the river, they would be effectually cut off from the water; and they could not be regarded in any sense as riparian proprietors; that is, as owners of land bounding on the water. It is difficult to ascertain from the record what was the actual physical condition of this street at the time the lease was made in eighteen hundred and twenty-four. It is, however, of very little consequence in this discussion. The evidence tends to show that it-had not advanced much beyond rude beginnings. Whether complete or incomplete the structure was a trespass on the property of the State. The con*584sequences would have been embarrassing to the lot owners, if the State had made a rigorous assertion of its rights. The Legislature, however, came to their relief by the Act of 1824, chapter 33. This Act incorporated the village of Port Deposit. By the fourteenth section it was enacted, “ That each and every of the proprietors of lots binding on and entitled to the privileges of the water in said village, shall be, and are hereby permitted to wharf out, extend and improve the whole front of their several lots respectively, and for such distance, as from time to time, they may think fit.” Up to this time the street had been an encroachment on the land of the State. The owners of these lots had no right to fill up the public waters in front of their land. They could acquire no title to the firm land made by such filling, whether it was done for the purpose of constructing a street, or making a building site. But the Act of Assembly bestowed upon them new rights of property. It authorized them to extend their lots into the water, not merely as far as the width of a street, but for such distance as they might think fit. Before this Act they had been trespassers, but by legislative enactment they became owners. A similar right had been given to riparian owners in the city of Baltimore by the Act of 1745, chapter 9. The evidence shows that the proprietors of all the above-mentioned lots on the Beard plat availed themselves of the privileges conferred by the Act of Assembly; and that the entire front of these lots has been extended a very considerable distance into the Susquehanna. When these extensions were made, they became statutory additions to the original lots, and were held by the same title. In fact, they were the original lots made larger. Their legal identity was not changed by an increase of their dimensions.
Lots thirty and thirty-one were duly assigned to David White; and in eighteen hundred and thirty-three they were assigned by him to Isaac Nowland. Large additions had been made to them in the meantime by fillings in the river,' and the making of fast land in front of *585them. These extensions have been continued from time to time, and now cover a large space; but it is very difficult, perhaps impossible to ascertain their exact limits at any particular date many years ago. In eighteen hundred and thirty-seven Nowland conveyed to David White, his heirs and assigns, a certain interest in these lots called in the deed “all the entire water privilege” of lots thirty and thirty-one. This property is described in the deed as follows: “ commencing for the said water privilege at the top of high-water mark on the river Susquehanna, and running thence into the river, embracing all the entire water privilege of the said two lots on the said river Susquehanna.” It will be perceived that the deed does not purport to convey any fast land; but it seeks to convey land below high-water mark in the bed of the Susquehanna. As has been already said this land belonged to the State, but Nowland had by the Act of eighteen hundred and twenty-four, section thirty-three, the right to “extend and improve” the whole front of his lot into the water. A right of the same description under the Act of 1745, chapter 9; relating to the city of Baltimore, was in Casey v. Inloes, 1 Gill, 501, stated by this Court to be “ a franchise ; a vested right, peculiar in its nature; a quasi property.” The deed in question could not operate to give White a less interest than an irrevocable license to make “these extensions and improvements” into the river for his own benefit, with á right to hold as his own the fast land thus made. The deed was made for a moneyed consideration on a lawful contract; and we must give effect to it, as far as we rightfully can, according to the intention of the parties. Nowland certainly had the right to authorize White to make the improvements which he himself could make. But there is nothing in the deed which by any reasonable construction can give to White a title to any of the fast land which had been already made above high-water mark.
In eighteen hundred and thirty-nine Nowland conveyed to Allan Anderson part of No. 30 and nearly the whole of *586the original Lot No. 31, and the whole of the extension which had been added to it by the fast land made in the Susquehanna. The land is described as parts of these two lots, and also an additional water lot; and the boundaries run according to the terms of the deed to the water edge of the Susquehanna River, fifty-nine and a-half feet west of the original lots. We must here note that White’s purchase began at high-water mark and that this lot would meet it at the water’s edge, supposing that there had been no change in the high water line. According to the evidence White made fast land by wharfing and filling within the limits of his deed from Nowland.
In eighteen hundred and fifty-five White and his wife made a conveyance to Edwin J. Rinehart and his heirs of all that part of a lot or parcel of land known and described as the water privilege of Lot No. 31; and it is stated in the deed that said part of said water privilege is described more particularly as follows, that is to say: “ Beginning for the same at the southwesternmost corner of said Lot No. 31, and running thence by and with the lower or river line of said Lot No. 31 forty feet to the southeasternmost corner of said lot; thence by and with the extension of southeastern side line of said Lot No. 31 sixty feet toward the river Susquehanna; 'thence by a line parallel to the first line of the land hereby conveyed forty feet, and thence by a straight line parallel to the second line hereof sixty feet to the place of beginning, it being a part of the same land which was conveyed to the said David White by one Isaac Nowland, by his deed bearing date on the seventeenth of April, in the year eighteen hundred and thirty-seven. ” This water privilege is described as a part of the land conveyed to White by Nowland by the deed above-mentioned. The Nowland deed describes White’s water privilege as commencing at the top of high-water mark, and running into the river. It bounded on the westerly side of Lot No. 31, as extended, which was the river line of that lot. When the Rinehart deed says that the water privilege conveyed by it *587commences at the southwesternmost corner of Lot 31, and runs with its river line, it is most absolutely certain that it was intended to designate what was the high-water mark w’hen Nowland’s deed to White was executed. The evidence shows that considerable extension had been made from the land into the river in the time intervening between these two deeds. It is not possible, we think, to suppose that the corner of Lot 31 mentioned in this deed means a corner marked on Beard’s plat, which was about sixty feet from the shore when White acquired his water privilege beginning at high-water mark. It is important to mark the beginning of this description, because the Tome Institute deduces partly from this deed its title to the land occupied by it. It also derives title by mesne conveyances from the Anderson deed.
In eighteen hundred and sixty-six White and his wife conveyed to James A. Davis “ the-entire water privilege of lots number thirty and thirty-one;’ ’ in the words of the deed, “ commencing for said water privilege at the top of high-water mark on the river Susquehanna; and running thence into the river, embracing all the entire water privilege of the said two lots on the said riyer Susquehanna, being the same lots the said David White obtained from Isaac Nowland.” We suppose it to be clear that high-water mark mentioned in this deed means the mark which existed at its date. If at this time White owned any fast land bounding on the river, he had the right to extend his land into the water, and he could convey to Davis the same kind of a title which he had acquired from Nowland. He had in eighteen hundred and fifty-five conveyed a tract extending sixty feet towards the Susquehanna from what was the high-water mark at the date of his deed from Nowland in eighteen hundred and thirty-seven. If this sixty feet comprehended all the fast land, which he then had, he had no interest left, and he, therefore, could not convey anything to Davis. It is a question of fact arising on the locations, and .the decision was for the determination of the jury. *588There are other deeds in the record conveying title to the Tome Institute; but these which we have mentioned shew the boundaries which are in contest between the parties in this case. It was alleged in the declaration that the Tome Institute had committed a trespass on Davis’ land; that is on the land conveyed to him by White and his wife.
A warrant of resurvey having been issued, a great many locations were made by the parties. It has been our purpose in what we have said to indicate the rules by which the locations should have been made, and also to make our opiniori known on the other important questions in the case. We think that we have decided the essential questions before us. But as the case must be tried again, it is our duty to decide all of the numerous exceptions which were taken at the trial. We shall proceed to consider them in detail; for the sake of convenience beginning with the prayers.
We see no objection to the first prayer granted on behalf of the plaintiffs, marked No. 2 in the record. The year eighteen hundred and sixty-four is mentioned in the prayer instead of eighteen hundred and sixty-six. We understood that this matter was explained at the argument. At all events no objection was made on this ground in the Court below or in this Court. Plaintiffs’ No. 3 was properly granted. Nos. 4 and 6 ought to have been rejected, inasmuch as we think that the deed' from White to Davis, as we have already stated, conveyed no land above the high-water mark of the river, as it existed at the date of the deed. No. 7 ought to have been rejected for the reason which we have already stated in discussing the deed from White to Rinehart. On the hypothesis of the thirteenth prayer the plaintiff ought to recover compensation for the damage done by the defendant. This is usually measured by a reasonable rent for the land wrongfully occupied, where there is nothing in the case to authorize punitive damages, and there is no such element in this case. This prayer is not clear on this point, and might mislead the jury into believing that they could allow damages commensurate with the benefit *589derived by the defendant from the use of the land. The law will not permit such a rule; in the absence of circumstances of aggravation it allows the injured party indemnity for his loss, and nothing more. In B. & O. R. R. Co. v. Boyd, 67 Md. 32" court="Md." date_filed="1887-03-16" href="https://app.midpage.ai/document/baltimore--ohio-railroad-v-boyd-7897302?utm_source=webapp" opinion_id="7897302">67 Md. 32, where there was no evidence of special damage, this Court said that the plaintiff was entitled to recover a fair rental of his land which had been occupied by the defendant. On account of the misleading character of the thirteenth prayer it ought not to have been granted. No. 14 ought to have been rejected, because it disregarded the deed from Nowland to Anderson. No. 15 was properly granted. It maintains a self-evident proposition, and is objected to only on the ground of a want of evidence to support it. ' It will be more convenient to consider this objection when we take up the exceptions to the testimony. Defendant’s prayers No. 1 and No. 3 were conceded. No. 2 and No. 4 present a question of failure of evidence. The evidence will be stated when we take up the testimony. At present it is sufficient to say that they were properly refused. No. 5 was properly refused for the reason stated when we construed the deed from White to Davis. No. 6 is in these words: “ That the deed from David White to James A. Davis, offered in evidence by the plaintiff, does not operate to give to the said James A. Davis color of title to the land claimed by defendant under the deed to it from E. John Rinehart and others, dated July 29th, 1890, and offered in evidence by defendant, or any part thereof.” The land claimed by the defendant under the deed in question was located on the plat, but it was the province of the jury to determine whether the location was correctly made. The Court could not grant this prayer without deciding this question. It was, therefore, properly rejected. The seventh prayer ignores the deed from Nowland to White and those made by White. The Court properly refused to grant it. No. 8 asserts that if the land conveyed by White to Rinehart extended below high-water mark on the river, that the subsequent deed from White to Davis conveyed no *590title. On the hypothesis stated Rinehart would be the riparian owner, and would be entitled to extend the lot into the water, and White would have no interest remaining in him. The Court committed an error in rejecting this prayer. We approve of the rejection of prayer No. 9. A correct proposition was stated in No. 10 and it ought to have been granted. We have shown in a previous part of this opinion that No. 11 states the true construction of the deed from White to Rinehart. It is sufficient to say that it will be apparent from what we said in the early part of this opinion that the defendant’s twelfth, thirteenth, fourteenth, fifteenth and seventeenth prayers ought to have been granted in the form in which they were offered ; and that the sixteenth and eighteenth prayers were properly refused.
The exceptions to the rulings on the evidence are next in the order which we have adopted for the decision of the questions on the record. The first exception is to the admission in evidence of the deed from Nowland to White, and the one from White to Davis. It is unnecessary for us to repeat what we have said about these deeds. The next exception was to the competency of the witness Sullivan. The objection was stated to be on the ground that he was not present on the survey. The witness testified in answer to a question by the court that he was present during the survey at the site of the Tome Institute, and was there during the entire day while the county surveyor was making his survey in the case; and no other testimony was offered to the Court on this point. Evidence was given tending to show that Davis had been in possession of the land in dispute using and claiming it as his own property, for more than twenty years. In the third exception a witness testified that during this possession in the year eighteen hundred and seventy-five, Joseph B. Pugh, who was a partner and an intimate friend of Davis, built a cow-shed and a fence around a cow-yard, but before doing so he asked from Davis permission to build them. Defendant excepted to this evidence, but the Court admitted it. The evidence *591was competent to show that the use of the land by building the shed and fence was not adverse to the right of .Davis, and did not displace his possession; but, was by his permission, and not a hostile invasion of his premises. The evidence which we have mentioned will show that the second, fourth and fifteenth prayers of the defendant were properly refused. In the fourth exception the Court admitted testimony'that the firm of Davis and Pugh were •charged rent on the books of the firm in favor of James A. Davis for the use of the land opposite Lots 30 and 31. This evidence was competent to show that the possession of Davis and Pugh was by consent of James A. Davis, .and was in acknowledgment of his title by payment of rent. It could not, therefore, in law, defeat or interrupt his possessory right. It did not tend to prove any title in Davis, but it showed that the occupation was not a possession adverse to him.
(Decided March 3rd, 1898).
Because of the errors mentioned, the judgment must be xeversed, and a new trial will be ordered.
Reversed and new trial