Alvey, C. J.,
delivered the opinion of the Court.
The record now before us contains four appeals; three by the defendant from three several judgments against it, and one by the plaintiffs from one of those judgments.
There were three several actions of trespass guare clausum fregit brought hy the plaintiffs below against the defendant, the Baltimore & Ohio Railroad Company, and by agreement, the three actions were tried together, hut a separate verdict was rendered in each case, and, consequently, separate judgments were entered.
The first of these cases was here on a former appeal, and is reported in 63 Md., 325. The facts of that case are substantially the facts of all the present cases, so far as [38]*38the main question on these appeals is concerned ; the only material difference being that the two last cases were brought to cover two successive periods of time. The locus in quo in all three of these actions is the same as that described in 63 Md., 330; and the circumstances of the entry upon and user thereof by the defendant are there fully stated. In that case, the Court having determined, that as the defendant's entry upon and user of that portion of the lot of vacant and unimproved ground in the City of Baltimore, belonging to the plaintiffs, occupied as a bed for the tracks of its railroad, was unauthorized and therefore a wrong, the plaintiffs were entitled to recover therefor. But in view of the facts then disclosed, this Court held that the plaintiffs were not entitled to recover exemplary damages, there being no element of fraud or malice, or evil intent, on the part of the defendant, in entering upon and using the ground as it did.
In the trial of the present cases, the main subject of contest was as to the proper measure of damages to be awarded to the plaintiffs. At the request of the plaintiffs, the Court granted three prayers as instructions to the jury, as to what damages should be allowed ; and, at the instance of the defendant, two other prayers were granted upon the same subject; but the first prayer offered by the defendant was refused by the Court. The plaintiffs excepted to the instructions given on the request of the defendant, and the latter excepted to the instructions given at the instance of the plaintiffs, and also to the refusal to grant its first prayer. The rulings upon the prayers áre the subjects of the third bill of exception taken by the defendant, and of the second bill of exception taken by the plaintiffs.
By the first of the instructions for the plaintiffs, the jury were directed, that, upon finding the facts enumerated, their verdict, in the first case, should be for the plaintiffs, with such damages as would, in the judgment of the-[39]*39jury, amount to a fair compensation for the said unauthorized use of the said tracks.” And as applicable to the second and third cases, the jury were directed, that in finding for the plaintiffs, their verdict should be for such an amount as would, “ in their judgment, fully compensate the plaintiffs for such continued and unauthorized use of the said tracks, between the dates named, against the wishes of the plaintiffs, and under all the circumstances disclosed by the evidence.”
By the first of the defendant’s prayers, which was refused, the Court was asked to instruct the jury, that there was no evidence legally sufficient from which they could find that there was any substantial damage or injury done to the locus in quo, by the acts of the defendant, and therefore the verdict should be for nominal damages only. The Court, however, while refusing to require the jury to find their verdict for nominal damages merely, did instruct them, by granting the second prayer of the defendant, that if they found from the evidence that no substantial damage or injury was done to the plaintiffs’ lot of ground, by any act or user thereof by the defendant, the verdict should be for nominal damages only. We do not understand that there is any question made as to the propriety of granting the defendant’s third prayer by the Court.
It clearly appears, that since the death of Philip D. Boyd, in 1881, who held a life estate in the premises, the defendant in these cases has been, down to a very recent date, a tort feasor, in the use and continual occupancy of the locus in quo, as against the heirs-at-law of Mrs. Clarissa Boyd, deceased, — those heirs being plaintiffs in the present actions. It is true, the original entry into, and the construction and use of railroad tracks over, the locus in quo, were all supposed to be authorized by virtue of certain condemnation proceedings had under certain city * ordinances for opening of streets, but which proceedings proved to be defective and insufficient to secure to the [40]*40defendant the right of way over the lot of ground in question. The defendant, therefore, was not a wilful wrongdoer. This was determined hy this Court in the case reported in 63 Md., 325. The lot of ground belonging to the plaintiffs was, and still remains, unenclosed, and without any improvement thereon whatever, apart from the railroad tracks placed there hy the defendant. The space occupied by the road, in passing through this lot, was very small, being only about eighteen by thirty-six feet. The defendant, since the decision of this case on the former appeal, has procured condemnation of the right of way for its road through the lot, and the inquisition has been confirmed ; hut the present actions were brought for the repeated trespasses on the lot from the time of the death of Philip D. Boyd to the time of the taking of the recent inquisition hy the defendant.
That the entry upon and use* of the land, though under color of right, and though the ground was unenclosed and vacant, was unlawful and therefore a trespass, admits of no question or dispute; and consequently for such invasion of their rights the plaintiffs are entitled to recover some damages of the defendant. It is not necessary, in order to entitle the plaintiffs to a verdict that they should have given affirmative proof that they had sustained any particular amount of damages; for every unauthorized entry upon the land of another is a trespass, and whether the owner suffer substantial injury or not, he at least sustains a legal injuVy, which entitles him to a verdict for some damages; though they may, tmder some circumstances, he so small as to be merely nominal. Ashby vs. White, 2 Lord Raym., 955; Mellor vs. Spateman, 1 Wms. Saund., (note 2,) p. 346a; Taylor vs. Henniker, 12 Ad. & El., 448; Dixon vs. Glow, 24 Wend., 188.
' The present cases, however, we think, are not cases for nominal damages merely. For though there is an 0 entire absence of any such element of wanton or malicio [41]*41motive, or such reckless disregard of the rights of others, in the commission of the trespass, and the repetitions thereof, as would entitle the plaintiffs to claim punitive or exemplary damages; yet the strip of ground belonging to the plaintiffs has°heen continuously and beneficially occupied by the defendant, as the bed of its railroad tracks, since the death of Philip D. Boyd to the time of bringing the last suit; and for such usé of the land a reasonable, but a substantial, compensation ought to be paid.
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Alvey, C. J.,
delivered the opinion of the Court.
The record now before us contains four appeals; three by the defendant from three several judgments against it, and one by the plaintiffs from one of those judgments.
There were three several actions of trespass guare clausum fregit brought hy the plaintiffs below against the defendant, the Baltimore & Ohio Railroad Company, and by agreement, the three actions were tried together, hut a separate verdict was rendered in each case, and, consequently, separate judgments were entered.
The first of these cases was here on a former appeal, and is reported in 63 Md., 325. The facts of that case are substantially the facts of all the present cases, so far as [38]*38the main question on these appeals is concerned ; the only material difference being that the two last cases were brought to cover two successive periods of time. The locus in quo in all three of these actions is the same as that described in 63 Md., 330; and the circumstances of the entry upon and user thereof by the defendant are there fully stated. In that case, the Court having determined, that as the defendant's entry upon and user of that portion of the lot of vacant and unimproved ground in the City of Baltimore, belonging to the plaintiffs, occupied as a bed for the tracks of its railroad, was unauthorized and therefore a wrong, the plaintiffs were entitled to recover therefor. But in view of the facts then disclosed, this Court held that the plaintiffs were not entitled to recover exemplary damages, there being no element of fraud or malice, or evil intent, on the part of the defendant, in entering upon and using the ground as it did.
In the trial of the present cases, the main subject of contest was as to the proper measure of damages to be awarded to the plaintiffs. At the request of the plaintiffs, the Court granted three prayers as instructions to the jury, as to what damages should be allowed ; and, at the instance of the defendant, two other prayers were granted upon the same subject; but the first prayer offered by the defendant was refused by the Court. The plaintiffs excepted to the instructions given on the request of the defendant, and the latter excepted to the instructions given at the instance of the plaintiffs, and also to the refusal to grant its first prayer. The rulings upon the prayers áre the subjects of the third bill of exception taken by the defendant, and of the second bill of exception taken by the plaintiffs.
By the first of the instructions for the plaintiffs, the jury were directed, that, upon finding the facts enumerated, their verdict, in the first case, should be for the plaintiffs, with such damages as would, in the judgment of the-[39]*39jury, amount to a fair compensation for the said unauthorized use of the said tracks.” And as applicable to the second and third cases, the jury were directed, that in finding for the plaintiffs, their verdict should be for such an amount as would, “ in their judgment, fully compensate the plaintiffs for such continued and unauthorized use of the said tracks, between the dates named, against the wishes of the plaintiffs, and under all the circumstances disclosed by the evidence.”
By the first of the defendant’s prayers, which was refused, the Court was asked to instruct the jury, that there was no evidence legally sufficient from which they could find that there was any substantial damage or injury done to the locus in quo, by the acts of the defendant, and therefore the verdict should be for nominal damages only. The Court, however, while refusing to require the jury to find their verdict for nominal damages merely, did instruct them, by granting the second prayer of the defendant, that if they found from the evidence that no substantial damage or injury was done to the plaintiffs’ lot of ground, by any act or user thereof by the defendant, the verdict should be for nominal damages only. We do not understand that there is any question made as to the propriety of granting the defendant’s third prayer by the Court.
It clearly appears, that since the death of Philip D. Boyd, in 1881, who held a life estate in the premises, the defendant in these cases has been, down to a very recent date, a tort feasor, in the use and continual occupancy of the locus in quo, as against the heirs-at-law of Mrs. Clarissa Boyd, deceased, — those heirs being plaintiffs in the present actions. It is true, the original entry into, and the construction and use of railroad tracks over, the locus in quo, were all supposed to be authorized by virtue of certain condemnation proceedings had under certain city * ordinances for opening of streets, but which proceedings proved to be defective and insufficient to secure to the [40]*40defendant the right of way over the lot of ground in question. The defendant, therefore, was not a wilful wrongdoer. This was determined hy this Court in the case reported in 63 Md., 325. The lot of ground belonging to the plaintiffs was, and still remains, unenclosed, and without any improvement thereon whatever, apart from the railroad tracks placed there hy the defendant. The space occupied by the road, in passing through this lot, was very small, being only about eighteen by thirty-six feet. The defendant, since the decision of this case on the former appeal, has procured condemnation of the right of way for its road through the lot, and the inquisition has been confirmed ; hut the present actions were brought for the repeated trespasses on the lot from the time of the death of Philip D. Boyd to the time of the taking of the recent inquisition hy the defendant.
That the entry upon and use* of the land, though under color of right, and though the ground was unenclosed and vacant, was unlawful and therefore a trespass, admits of no question or dispute; and consequently for such invasion of their rights the plaintiffs are entitled to recover some damages of the defendant. It is not necessary, in order to entitle the plaintiffs to a verdict that they should have given affirmative proof that they had sustained any particular amount of damages; for every unauthorized entry upon the land of another is a trespass, and whether the owner suffer substantial injury or not, he at least sustains a legal injuVy, which entitles him to a verdict for some damages; though they may, tmder some circumstances, he so small as to be merely nominal. Ashby vs. White, 2 Lord Raym., 955; Mellor vs. Spateman, 1 Wms. Saund., (note 2,) p. 346a; Taylor vs. Henniker, 12 Ad. & El., 448; Dixon vs. Glow, 24 Wend., 188.
' The present cases, however, we think, are not cases for nominal damages merely. For though there is an 0 entire absence of any such element of wanton or malicio [41]*41motive, or such reckless disregard of the rights of others, in the commission of the trespass, and the repetitions thereof, as would entitle the plaintiffs to claim punitive or exemplary damages; yet the strip of ground belonging to the plaintiffs has°heen continuously and beneficially occupied by the defendant, as the bed of its railroad tracks, since the death of Philip D. Boyd to the time of bringing the last suit; and for such usé of the land a reasonable, but a substantial, compensation ought to be paid. It is true, there is no evidence whatever of any special damages sustained, or that the plaintiffs were hindered or obstructed in any proposed use of their lot, by reason of the presence and use of the railroad tracks; hut, nevertheless, we are of opinion that the plaintiffs are entitled to a reasonable compensation for the use of their land, and we think this is measured by what would be a fair rental value for the ground, occupied as it has been, for the time covered by the actions, and nothing more. In such cases as the present, where there is nothing to show that any special damage has been suffered, the principle seems to be established by many respectable authorities, that the plaintiff is entitled to recover such compensation as the use of the ground was worth, during the time and for the purpose it was occupied. It has been so held in several cases, and we need only refer to McWilliams vs. Morgan, 75 Ill., 473; City of Chicago vs. Huenerbein, 85 Ill., 594; Ward vs. Warner, 8 Mich., 508. And though the facts are somewhat different, the same principle of compensation was adopted in the cases of Blesch vs. Chicago & North. Rw. Co., 43 Wis., 183; Carl vs. Sheboygan, etc., R. Co., 46 Wis., 625.
Such, then, being the proper rule of damages in these cases, the instructions, given at the request of the plaintiffs, were not sufficiently definite, and were well calculated to mislead the jury. They were centainly susceptible of a construction that would permit the jury to transcend the [42]*42fair rental value of the piece of ground, occupied by the defendant, as the measure of compensation to be allowed; and that such was the understanding or interpretation of these instructions by the plaintiffs’ counsel, is made manifest by the arguments and illustrations urged by him while addressing the jury, as reported and set out in the defendant’s fourth and fifth bills of exception. We are therefore of opinion that there was error in granting these instructions in the terms therein employed; and that there was also error in granting the second prayer of the defendant, but no error in refusing the first, or in granting the third, of the defendant’s prayers.
In' the view we have stated of the measure of recovery in these cases, the questions of evidence raised by the first and second bills of exception taken by the defendant, become quite immaterial, and it is unnecessary to express any opinion in regard to them.
■ With respect to the fourth and fifth exceptions taken by the defendant, they present a question of practice as to the right and duty of the trial Judge to interpose to restrain counsel, who is alleged to be indulging in argument and illustration before the jury, unwarranted by the instructions of the Court, and which will, if unrestrained, likely mislead the jury in the finding of their verdict. This is a matter that must, in the nature of. things, rest largely in the discretion of the trial Court. It is, however, proper for us to say, that no duty incumbent upon the Judge of a trial Court is more imperative, nor more important to the fair and orderly administration of justice, than that of interposing to restrain everything in the course of the trial that tends to mislead the jury and to divert their minds from the strict line of inquiry, with which they are charged. It is the function and duty of the Court, when called upon in the trial of civil cases, by either of the parties, to instruct the jury as to the principles of law applicable to the case on trial, and it is the [43]*43duty of the jury to observe and conform to such instruction. Counsel can never he permitted to argue to the jury against the instructions of the Court, nor to indulge in any line of argument or comment that would tend to induce them to disregard the instructions given for their government. This is a matter that is always within the control of the Court. Sowerwein vs. Jones, 7 G. & J., 335; Bell vs. State, 57 Md., 120. When, however, the instructions given are ambiguous, or susceptible of different interpretations, and the attention of the Court is called thereto, no matter at what stage of the trial, if before the jury have acted thereon, it at once becomes the duty of the Court to remove the ambiguity, and to make the meaning of the Court plain. Here, as we have shown, the instructions were indefinite, and were, to some extent at least, open to the construction that was being placed thereon by the counsel of the plaintiffs when he was interrupted by the adverse counsel, and the Court’s attention called to what he was contending for before the jury, as set forth in the fifth exception. The counsel was not restricted in his contention by any affirmative action of the Court; and we infer from such non-action, that the counsel, in urging the allowance of a large and discretionary amount of damages, was, in the opinion of the Court, conforming his contention to the instructions given the jury. AVe have said that the instructions were erroneously granted ; and whether or not they were rightly construed in argument before the jury, is a question quite immaterial to he decided for the re-trial of the cases.
There were two hills of exception taken by the plaintiffs. The first was taken to the refusal by the Court to admit as evidence, to prove malice on the part of the defendant, certain declarations or statements made by counsel on a former occasion, in the course of a trial, and while arguing the question of damages before a jury of [44]*44condemnation of the property in question. We know of no principle or authority, and have been referred to none, upon which such declarations of.counsel as those here offered, could be admitted for the purpose indicated. We therefore think the Court was clearly right in excluding them.
(Decided 16th March, 1887.)
The second exception taken by the plaintiffs was to the granting by the Court of the second and third prayers of the defendant. As to the second prayer, thus excepted to, we have said there was error ; but as to the third, there was no error, and therefore no ground for the exception to that instruction.
It follows that the several judgments entered in these cases must be reversed, and a new trial ordered.
Judgments reversed, and neiu trial aivarded.