Miller, J.,
delivered the opinion of the Court.
This action was brought by the appellants against the appellee. The declaration contains two counts, the first in trespass quare clausum, and the second in case for obstructing an alleged right of way, claimed by the plaintiffs by prescription, from their premises over the land of the defendant to a public highway. The most important question in the case, and the one we shall first consider, involves the plaintiffs’ right to recover under the second count.
The proof shows in substance that more than twenty-five years before the commencement of this suit, a row of small houses, one of which is now owned by the plaintiffs,had been built just outside of the limits of the city of Bal[123]*123timore, fronting on the defendant’s railway. They were built on the ground elevated several feet above the bed of the railroad, and this ground was sustained by a wall built along in front of all the houses. They were all built some ten or twelve feet back from the line of the railway, with small front yards, and each of them was enclosed with a small fence ; through which was a gate with steps leading down to the railway, and the mode of ingress and egress to the front of these houses was through these front gates. During all this period of twenty-five years, persons, including the plaintiffs and those under whom they claim, in walking to and from these houses, used the railway company’s ground alongside of the tracks, (there being a space of fifteen feet more or less between the westernmost track and said stone wall and also space to the east of the track), as their footway when going from their houses to North avenue after it was opened, and from this avenue to their houses, and when more convenient they used the tracks themselves when thus walking. Before the avenue was opened there was a road, access for foot passengers to and from which to the front of these houses was by way of the company’s land and tracks as above described. This user had been continuous and uninterrupted during all this time, and had never been interfered with by any one connected with the railway, until the obstruction complained of. Those who had owned the plaintiffs’ property during all this period testified they had no other footway from the houses to the highways spoken of, and that they used the railway as such footway, considering they had a right so to use it, and not as a favor from the company. Two of these witnesses on cross-examination testified that they did not confine themselves to the use of the railroad as a footway between their houses and the highways, but also used the same for such purpose as far down frequently as Bolton Station in the city, a distance of one-fourth of a mile or more, and used this latter part in the same way [124]*124•and-considering they had the same right to do so, as they had to that part leading from their houses to the highways. Within a year before suit brought, the defendant took down the stone wall in front of these houses and erected a fence some nine feet high on the inner edge of .the wall, and thus blocked up this mode of exit from the houses to the Company’s land, so that it was impossible to get from the front yards of the houses to the railroad way, or from the railroad to the front of the houses, without climbing over this fence. The fence in question was part of a longer line of -fence erected around their railroad tracks, and its erection was deemed necessary by the Company to protect its property from intrusion, and to facilitate the management of its business, and the safety of trains moving on its road. The space between this fence and the main track, has been all occupied since its erection, with tracks which are necessary for the operation of the road, and all of this space is needed for the proper operation of the railroad. These are all the material facts on this subject, and they are undisputed. By rejecting the plaintiffs’ fifth prayer the Court denied their right to recover for the obstruction of this alleged right of way. Is this ruling correct ?
It appears from the facts stated that the easement set tip is that of a private footway for some considerable distance, over the lands of a railroad corporation, alongside of or between the tracks of the road from the house of the plaintiffs to a public highway. Without stopping now to consider other essentials of an easement by prescription, it is familiar and elementary law, that title by prescription is founded on the presumption of a grant, and it follows from this that in order to establish a prescriptive right it must be claimed under and through some one who had a right to grant or create the easement claimed. Wash, on Easements, 120. That a railroad corporation has no power or right to grant an easement like this, of foot-[125]*125ways for persons to walk along their tracks or by the side of them, seems an almost self-evident proposition. It is obvious that if such power existed and were exercised it would be subversive of the very purposes for which railroad charters are granted. But the principle, if it needed authority for its support, has been decided. Thus where a company was authorized by Act of Parliament to construct and operate a canal for public use and the defendant erected a mill and steam engine upon its banks and drew water therefrom for operating the same, and to an action for doing this pleaded a prescriptive right so to use the water, the Court held that such right could not be maintained, for it implied an original grant thereof by the company to him, and they had no right to make any such grant or to use the water for any purpose except for that of a canal. Rockdale Canal Co. vs. Radcliffe, 83 Eng. C. L. Rep., 287. In that case Lord Campbell says: “Had the Company made a grant of the water in the terms of the plea, such a grant would have been ultra vires and bad,” and Earle, J., in a very terse judgment states the whole law of the case thus : “ This is a case to impose a servitude upon the canal by virtue of a twenty years’ user. The party seeking to establish such a claim must show a grant by a person capable of making the grant relied on. Now the grant here is by persons having no distinct ownership of the water, but entitled only to the flow of it for the purpose of the navigation and having no right to the surplus. If it had appeared hy direct evidence that the company had made a grant to the purport now supposed, that grant would have appeared to be against the right of the public and void upon the face of it. The twenty years’ user therefore could establish no right.” So where a canal company had a right to the necessary quantity of water for passing the boats which made use of their canal, but no right to grant away any of the water in the same, it was held that no other party could claim any right by [126]*126prescription to draw water from this canal so as to deprive the canal company of the requisite quantity to operate the boats, because the company could not have rightfully granted away the use of the water which they had a right to enjoy for a specific purpose for the benefit of the public. Staffordshire Canal vs. Birmingham Canal, Law Rep., 1 Eng. and Irish Appeals, 254. That case was decided by the House of Lords, and Lord Chancellor Chelmsford, in delivering his judgment, says: “ To impose such a servitude upon the water in their canal as that contended for by the appellants would have been ultra vires
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Miller, J.,
delivered the opinion of the Court.
This action was brought by the appellants against the appellee. The declaration contains two counts, the first in trespass quare clausum, and the second in case for obstructing an alleged right of way, claimed by the plaintiffs by prescription, from their premises over the land of the defendant to a public highway. The most important question in the case, and the one we shall first consider, involves the plaintiffs’ right to recover under the second count.
The proof shows in substance that more than twenty-five years before the commencement of this suit, a row of small houses, one of which is now owned by the plaintiffs,had been built just outside of the limits of the city of Bal[123]*123timore, fronting on the defendant’s railway. They were built on the ground elevated several feet above the bed of the railroad, and this ground was sustained by a wall built along in front of all the houses. They were all built some ten or twelve feet back from the line of the railway, with small front yards, and each of them was enclosed with a small fence ; through which was a gate with steps leading down to the railway, and the mode of ingress and egress to the front of these houses was through these front gates. During all this period of twenty-five years, persons, including the plaintiffs and those under whom they claim, in walking to and from these houses, used the railway company’s ground alongside of the tracks, (there being a space of fifteen feet more or less between the westernmost track and said stone wall and also space to the east of the track), as their footway when going from their houses to North avenue after it was opened, and from this avenue to their houses, and when more convenient they used the tracks themselves when thus walking. Before the avenue was opened there was a road, access for foot passengers to and from which to the front of these houses was by way of the company’s land and tracks as above described. This user had been continuous and uninterrupted during all this time, and had never been interfered with by any one connected with the railway, until the obstruction complained of. Those who had owned the plaintiffs’ property during all this period testified they had no other footway from the houses to the highways spoken of, and that they used the railway as such footway, considering they had a right so to use it, and not as a favor from the company. Two of these witnesses on cross-examination testified that they did not confine themselves to the use of the railroad as a footway between their houses and the highways, but also used the same for such purpose as far down frequently as Bolton Station in the city, a distance of one-fourth of a mile or more, and used this latter part in the same way [124]*124•and-considering they had the same right to do so, as they had to that part leading from their houses to the highways. Within a year before suit brought, the defendant took down the stone wall in front of these houses and erected a fence some nine feet high on the inner edge of .the wall, and thus blocked up this mode of exit from the houses to the Company’s land, so that it was impossible to get from the front yards of the houses to the railroad way, or from the railroad to the front of the houses, without climbing over this fence. The fence in question was part of a longer line of -fence erected around their railroad tracks, and its erection was deemed necessary by the Company to protect its property from intrusion, and to facilitate the management of its business, and the safety of trains moving on its road. The space between this fence and the main track, has been all occupied since its erection, with tracks which are necessary for the operation of the road, and all of this space is needed for the proper operation of the railroad. These are all the material facts on this subject, and they are undisputed. By rejecting the plaintiffs’ fifth prayer the Court denied their right to recover for the obstruction of this alleged right of way. Is this ruling correct ?
It appears from the facts stated that the easement set tip is that of a private footway for some considerable distance, over the lands of a railroad corporation, alongside of or between the tracks of the road from the house of the plaintiffs to a public highway. Without stopping now to consider other essentials of an easement by prescription, it is familiar and elementary law, that title by prescription is founded on the presumption of a grant, and it follows from this that in order to establish a prescriptive right it must be claimed under and through some one who had a right to grant or create the easement claimed. Wash, on Easements, 120. That a railroad corporation has no power or right to grant an easement like this, of foot-[125]*125ways for persons to walk along their tracks or by the side of them, seems an almost self-evident proposition. It is obvious that if such power existed and were exercised it would be subversive of the very purposes for which railroad charters are granted. But the principle, if it needed authority for its support, has been decided. Thus where a company was authorized by Act of Parliament to construct and operate a canal for public use and the defendant erected a mill and steam engine upon its banks and drew water therefrom for operating the same, and to an action for doing this pleaded a prescriptive right so to use the water, the Court held that such right could not be maintained, for it implied an original grant thereof by the company to him, and they had no right to make any such grant or to use the water for any purpose except for that of a canal. Rockdale Canal Co. vs. Radcliffe, 83 Eng. C. L. Rep., 287. In that case Lord Campbell says: “Had the Company made a grant of the water in the terms of the plea, such a grant would have been ultra vires and bad,” and Earle, J., in a very terse judgment states the whole law of the case thus : “ This is a case to impose a servitude upon the canal by virtue of a twenty years’ user. The party seeking to establish such a claim must show a grant by a person capable of making the grant relied on. Now the grant here is by persons having no distinct ownership of the water, but entitled only to the flow of it for the purpose of the navigation and having no right to the surplus. If it had appeared hy direct evidence that the company had made a grant to the purport now supposed, that grant would have appeared to be against the right of the public and void upon the face of it. The twenty years’ user therefore could establish no right.” So where a canal company had a right to the necessary quantity of water for passing the boats which made use of their canal, but no right to grant away any of the water in the same, it was held that no other party could claim any right by [126]*126prescription to draw water from this canal so as to deprive the canal company of the requisite quantity to operate the boats, because the company could not have rightfully granted away the use of the water which they had a right to enjoy for a specific purpose for the benefit of the public. Staffordshire Canal vs. Birmingham Canal, Law Rep., 1 Eng. and Irish Appeals, 254. That case was decided by the House of Lords, and Lord Chancellor Chelmsford, in delivering his judgment, says: “ To impose such a servitude upon the water in their canal as that contended for by the appellants would have been ultra vires of the respondents, and consequently length of user could never confer an indefeasible claim upon the appellants under the Prescription Act, as no grant of the use of the water could have been lawfully made by the respondents.” And Lord .Westbury, with equal force, says in his opinion: “But if the Prescription Act had been at all applicable, it would be incumbent on the appellants to prove that the right founded on the claim by user, might, at the beginning of, or during that user, have been lawfully granted to them hy the respondents. No such proposition can be maintained. Had any grant been made at any time by the respondents’ company of the right now alleged by the .appellants to have been acquired against them by user, such grant would have been ultra vires and void, as amounting to a contract by the respondents not to perform their duty by improving their navigation and conducting their undertaking with economy and prudence.” We have been referred to no authority and have found none in which the doctrine of these decisions has been controverted. Cases may be found like that of Grand Surry Canal Co. vs. Hall, 1 Man. & Gr., 392, in which the public was held to have acquired by user the right to travel across a canal upon a bridge built over it by the company for accommodating the tenants of an adjoining estate, but it is plain that suclr cases are very different in principle from the one before [127]*127us. We are therefore clearly of opinion that the Court below committed no error in the ruling we have been considering.
(Decided 25th March, 1879.)
The only other question in the case arises upon the rejection of the plaintiffs’ fourth prayer. By granting their second and third prayers the Court allowed them to recover under the first count in the declaration, but by rejecting their fifth, refused to direct the jury that they might allow exemplary damages if they found the acts complained of were malicious and oppressive, and in this we find no error. There is no evidence in the record that the defendant in removing the wall and-erecting the fence committed a wanton and malicious trespass upon the plaintiffs’ close. On the contrary, all that the record discloses on this subject is that the defendant took down the wall and erected the fence in front of the houses. This fence was part of a longer line of fence which they erected around their tracks for the protection of the same from intrusion, and to facilitate the management of their business, and the safety of the trains moving upon their road. There is nothing to show they did not do this in good faith and with an endeavor to keep the fence within their own lines and on their own land. In fact, so far as we can discover from the deeds and plat offered in evidence, the fence was actually placed on the defendant’s land and there was no trespass committed. At all events, if any was committed, there is an entire absence of proof tending to show that it was done with wantonness or malice. We therefore agree with the learned Judge of the Superior Court that there was no evidence to justify vindictive damages.
Judgment affirmed.