| Md. | Jun 19, 1894
delivered the opinion of the Court.
Ware, from whom both of the parties to this suit derive title, was the owner of a tract of land containing seventy-
“ Clear of a road thirty feet wide running from the end of forty-five perches on the sixth line,” etc., “ and also clear of the one-half of a road thirty feet wide along the second line,” etc., “ which roads are for the use in common of the parties to this deed, their heirs and assigns.” This road thus described runs from the upper part of the tract, remaining in Ware, the grantor, in a straight line through the land conveyed to the appellee, to the Trappe road, a public highway. In 1889, more than twenty years after the sale and conveyance to the appellee, Ware sold the upper part of the tract containing thirty-seven acres to Helldorfer, and the latter subsequently sold the same to the appellant. Beyond and to the north of the Ware tract, the appellant is the owner of another tract, which is laid out and used as a public cemetery.
For the purpose of making the road described in the Ware deed a more convenient and available way to the thirty-seven acres bought of him, and to its cemetery, the appellant, without the leave of the appellee, and against his remonstrance, proceeded to alter and change the grade of the road. And in so grading it, the road is in some places elevated above the surface, and in others it is cut down to the depth of eight feet. The effect of these alterations, by which it was changed from a surface road adapted and conforming to the natural rise and fall of the land, to a road with deep cuts in one part and fills in other parts, was not only to divide and separate the defendant’s land, and to interfere with his accustomed and convenient use of the same, but also to collect the surface water falling during heavy rains, and to discharge the same in great
In its defence to the action the appellant contends, and so asked the 'Court to instruct the jury, that under the Ware deed the appellee was entitled to a mere easement in the road in question, and that the fee in the bed of the road was reserved by Ware, the grantor. This deed, we agree, is to be construed according to the intention of the parties, and this intention is to be ascertained from the language and terms of the deed itself; and if the language used be vague and uncertain, then the deed must be construed according to the well settled rules by which instruments of that kind are governed. That Ware, the grantor, meant to reserve the right of way over this road for the use of the thirty-seven acres, the upper part of the tract which remained unsold, is clear beyond all question, for this is reserved in explicit terms. But it is by no means clear he meant to reserve the fee in the bed of the road which ran through the appellee’s land, and which was,, in fact, included within the metes and bounds described in his deed. The sale by Ware of the lower part of the tract binding on the public highway left him without the means of access from the upper part to the public road, except through the land of the appellee. And hence it was necessary to reserve the right of way over the land of the latter. But we do not see any reason why he should reserve the fee in the road itself and which runs entirely through the land sold to the appellee. So construing the language of the deed, in connection with the subject-matter to which it refers, it was the intention of the parties, it seems to us, to reserve to the grantor merely the use of this road as the means of egress and ingress to the upper part of the tract, which be
The appellant is, of course, entitled to the reasonable and proper enjoyment of this way for the purposes for which it was reserved, but all other rights and benefits consistent with such easement belong to the appellee as owner of the soil. As purchaser of the remainder of the Ware tract, it acquired all the rights appurtenant to this parcel of land, that is to say, the use of the road to and from said parcel of land. But being a private road, the appellant has no right to use it for the purposes and benefit of another tract of land, to which the right of way is not appurtenant. This we said in Albert vs. Thomas, 73 Md., 181, and if so, it had no right to use it for the benefit of, or as a way to, its cemetery.
Row, as to the measure of damages, the rule was, we think, properly laid down by the Court, namely, that in estimating the damages the jury had the right to take into consideration the losses suffered by the plaintiff in the destruction of crops and the depreciation in the value of his land, occasioned by the acts of the defendant corporation.
In the absence of such facts and circumstances as will entitle one to exemplary damages, the general principle upon which compensation for injuries to real property is given is that the plaintiff shall be reimbursed to the extent of the injury. If the injury resulting from the wrongful act be merely the destruction of one’s crops, he is entitled to recover full damages, that is to say, the value of such crops. But where the injury is of a permanent character, where it affects not only one’s crops, bnt the value of his land, then in addition to the value of his crops, he is entitled to recover for the diminution of the value of the land according to his interest in the land. In such a case, the injury being permanent, he recovers full damages, past and
We cannot agree that there was no evidence from which the jury could find there was any diminution in the value of the land. Before the alleged trespass, it was, according to all the witnesses, highly improved and very productive, and, being near Baltimore, it was cultivated as a truck farm. They all agree that it was worth from $300 to $500 per acre, and that from six to ten acres were rendered unfit for cultivation, by reason of being flooded and covered with sand and gravel.
In regard to the second instruction refused by the Court, the appellant was, 'we agree, entitled to the reasonable use of the road to and from the thirty-seven acres purchased of Ware, and had the right to make such repairs as were necessary; but it had no right to grade it by elevating the road
Judgment affirmed.