such further reasonable time for its transmission as in our judgment was proper. In the present case more than six months elapsed between the taking of the appeal and the transmission of the transcript. The appellant attempts to account for this delay by asserting that the appellee's counsel retained for a long time in his possession a typewritten copy of the evidence in the case, which was requisite for the preparation of the bills of exception. Assuming that the appellant was entitled to the possession and use of that copy of the evidence, his deprivation of it for a time affords no sufficient excuse for his great delay in transmitting the record. He asserts in his answer that he got possession of the copy on January 14, 1910, which was more than three months before the transcript of the record was sent to this court. The affidavit of the deputy clerk completely negatives the theory that any portion of the delay is chargeable to the clerk or his subordinates. county, which states: (1) That he, as such prescribed three months, we have allowed deputy, has charge of the dockets of said court, and of the filing of papers in cases thereon, and of making out the transcripts of records for the Court of Appeals. (2) That in the present case the bills of exception were filed on the 3d of February, 1910, and that within a few days thereafter the record in the case was ready for transmission to the Court of Appeals, but its transmission was delayed until the 15th day of April, 1910, because the costs of the record were not paid in the clerk's office of the court below until the last-named day. (3) That the delay in the transmission of the record to this court was not occasioned by the neglect, omission, or inability of the clerk, or any one connected with his office, or of the appellee. The appellant filed an answer to the motion to dismiss, in which he averred that the delay in preparing the bills of exception was largely due to the fact that the appellee's counsel retained in his possession a type written copy of the testimony, made from notes taken by a stenographer during the trial, for so long a time that it did not come into the possession of the appellant's counsel until January 14, 1910. The answer was accompanied by an affidavit in rather general terms from the stenographer, who made the copy of the testimony, touching its retention by the appellee's counsel, and also one from the deputy clerk, Woodward, which did not materially vary the statements made in his previous one. The appellee's counsel filed in reply an affidavit contradicting some of the more important statements of the one made by the stenographer, and asserting that the typewritten copy of the testimony had been made for the appellee at its own expense and was its private property. We deem it unnecessary to discuss the three last-mentioned affidavits, because the appellant's answer itself shows him to have been guilty of such laches in transmitting the record to this court as to require the dismissal of the appeal. In all appeals to this court the appellant is responsible for having a transcript of the record duly prepared and transmitted here within the prescribed time. That time, under our rules, in appeals from courts of law, is within three months from the time of the appeal taken. Rule 16 affords the appellant relief from the consequences of delays for which he is not responsible, by providing that no appeal shall be dismissed for failure to transmit the transcript within the prescribed time, upon his making it appear to this court that the delay was caused by the neglect, omission, or inability of the clerk or appellee; but such neglect, omission, or inability will not be presumed. When the court below has, by granting extensions of the time for signing the bills of exception, rendered it impossible to have the transcript prepared within the Under these circumstances, we feel that it is our plain duty to dismiss the appeal. Appeal dismissed, with costs. (114 Md. 216) WEBB et al. v. BALTIMORE & O. R. CO. (Court of Appeals of Maryland. Dec. 2, 1910.) 1. MUNICIPAL CORPORATIONS (§ 669*) STREETS-RIGHTS OF ABUTTERS. Municipal authorities must preserve to abutting landowners as a constituent part of the general public the beneficial enjoyment of streets by access thereto. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1445; Dec. Dig. § 669.*] 2. EMINENT DOMAIN (§ 295*) - INJURIES FROM CONSTRUCTION OF RAILROAD-INTERFERENCE WITH ABUTTER'S ACCESS - DAM AGES-EVIDENCE. An abutter suing for interference with access to his property caused by occupation of a street by a railway company must show the extent of his loss as a basis for assessing damages beyond nominal damages. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 803; Dec. Dig. § 295.*] 3. EMINENT DOMAIN (§ 141*) - STREETS RIGHTS OF ABUTTERS. The measure of damages to abutting property by the occupation of a street by a railroad is the diminution in the market, not the rental, value. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 141.*] 4. EMINENT DOMAIN (§ 142*) - STREETS RIGHTS OF ABUTTERS-OBSTRUCTION OF AC CESS. A proper method of ascertaining damage resulting to abutters by obstruction of access to their property through occupation of a street by a railroad was to ascertain what it would cost to restore the means of access by devoting part of the property to that purpose. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 377; Dec. Dig. § 142.*] Appeal from the Superior Court of Baltimore City; Henry D. Harlan, Judge. "For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Action by F. Egerton Webb and another | trol over it by them, and a copy of the ordiagainst the Baltimore & Ohio Railroad Com- nance referred to was admitted in evidence pany. Judgment for defendant, and plain- authorizing the laying of the track in questiffs appeal. Reversed, and new trial tion. It was also admitted that the track on awarded. Ostend street between Russell and Ridgely Argued before BOYD, C. J., and BRISCOE, streets was laid between May 1 and DecemPEARCE, SCHMUCKER, BURKE, and ber 1, 1908. PATTISON, JJ. Mr. Sutton, a surveyor who made a plat Randolph Barton, Jr., for appellants. Dun- of the locus in quo used in his examination, can K. Brent, for appellee. PEARCE, J. The appellants, being tenants in common of two adjoining unimproved lots of land in the city of Baltimore, brought this suit at law against the appellee, the Baltimore & Ohio Railroad Company, for alleged injury to their fee-simple estate in said lots of land, resulting from the laying by the appellee of an additional track on Ostend street, upon the north side of which street testified that there were three tracks in use at that point before the laying of the track in question, making now four in all of T-rail construction, and so laid that wagons cannot use the part where the tracks are laid; that the plaintiffs' lots at that point are not graded, being elevated above the street, and that there is an open ditch some 15 feet south of the north side of Ostend street, and no sidewalk or actual roadway, but a slope from the ends of the cross-ties of the new track said lots abut. The declaration alleges that to the bottom of the ditch, and from thence Ostend street is a public highway upon which for many years the appellee has maintained its railroad tracks in front of the plaintiffs' said property, and on which it operated a steam railroad, but that the northern part of said street, for a width of about 20 feet, has been until recently unobstructed by tracks, or in any other manner; that recently, in virtue of an ordinance of the mayor and city council of Baltimore, the defendant has laid an additional track on the north side of said street immediately in front of the appellants' said property, and has raised the roadbed of the street under said track which is to be used in operating the trains of the appellee; that, in consequence thereof, the general public has been entirely obstructed from the roadbed of said street in front of the appellants' property for the whole distance between Russell and Ridgely streets, and it is not possible to use any portion of said street bed in front of their property for the passage of vehicles; that thereby their property has been entirely deprived of the use of Ostend street for the passage of vehicles, and its value greatly injured and depreciated, not only by such obstruction of the street, but also because the trains of the appellee will be much nearer to their property, with greatly increased noise, dirt, and danger, affecting its rental as well as its salable value; and that, though the said ordinance authorized said obstruction, yet by the express terms of Code 1904, art. 23, § 255, the appellee is liable in damages for the injury occasioned by such location of said track. The appellee pleaded that it did not commit the wrong alleged, and the case was tried before the court without a jury, resulting in a verdict for the defendant under the instruction of the court, and from the judgment on the verdict the plaintiffs have appealed. a slope up to the north building line of Ostend street; that it is 66 feet from the north rail of the new track to the north building line of Ostend street, and that the rule has always been to allow one-fifth of the total width of the street for a sidewalk on each side, leaving three-fifths for the roadbed between the curbs; and that he had known Ostend street for 25 years, and has never at any time seen it used as a street between Russell and Ridgely streets. There are no houses on Ostend street between Russell and Ridgely, but west of Ridgely there is a row of houses on the north side of Ostend street set back a few feet from the building line, with a narrow brick walk in front. East of Russell street, Ostend has not been opened for passage of vehicles north of these tracks, but south of the tracks there is a traveled way, part of which he thinks is on private property. The plaintiffs then called Messrs. David M. Newbold, Jr., and John J. Hurst. Mr. Newbold is an attorney, associated with his father in real estate development in Baltimore city, and has known the property in question since 1905, and has frequently examined the property, and kept in touch with sales in that neighborhood as the representative of the plaintiffs. Their property fronts 310 feet on Ostend street. One half of this frontage runs back 264 feet on Ridgely street to Stockholm street, and the other half runs back on Russell street 100 feet towards Stockholm street. The property in the rear of this latter half on Stockholm street is the only improved property in that block, and does not belong to the plaintiffs. Mr. Newbold said he knew the value of this property May 1, 1908; that 264 feet on Ridgely and 100 feet on Russell, 364 feet at $3 a foot capitalized, is $50, about $18,200. That was a fair value at that time. Property in that neighborhood has sold from $2 to $4.25 a front foot. This property is adapted for factory or commercial purposes, or for dwell It was admitted that the plaintiffs had title to the property in question, and that Ostend street was a street owned by the ings. It would cost about $3,000, or 55 cents count in his estimate of $3 a foot. After the new track was laid, the property was worth about $15,800. Before that, there was about 24 feet between the former north track and where the curb would be, affording adequate space for a wagon to drive between the track and curb, and to load and unload. Now the space is reduced in one place to ten feet. He estimated that after the blocking of the street by the new track, in order to restore the 24-foot space between the old north track and the place for the curb, it would be necessary to take off 14 feet of the property on Russell and the same on Ridgely street, thus moving back the whole Ostend street front. This reduces the combined frontage on Ridgely and Russell streets from 364 to 336 feet, or 28 feet, which, at the former valuation of $50 a foot, makes a loss in value of $1,400 to put the property in the same relation to Ostend street which it bore before the new track was laid. Mr. Hurst is also an attorney devoting most of his time to real estate development, and admitted by the defendant to be an expert in that line. He knows this property, and owns three houses on the south side of Ostend street west of Warner street, which is the next street east of Russell. He testified that, if he owned the plaintiffs' property, he would set aside from Ostend street enough to make up what was taken from the bed of the street by the railroad's last track, and would arrive at the value of that by valuing the amount of land left. His method of valuation was not precisely the same as Mr. Newbold's, but the result was the same, viz., a loss of $1,400. consideration the primary purpose for which streets are opened and laid out, and the obligation of the municipal authorities to preserve the beneficial enjoyment of the streets by the abutting land owners as a constituent part of the general public. In Lake Roland El. R. R. Co. v. Balt., 77 Md. 377, 26 Atl. 515, 20 L.. R. A. 126, Judge Bryan said: "The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes. They are intended for the passage of people over them on foot, on horseback, and in vehicles, on their various occasions of business, convenience, or pleasure. It is not competent for the city to defeat the primary purpose for which they were dedicated to the public use." And Judge Alvey, in an opinion in the same case overruling a motion of the appellant for a reargument, said: "The primary use of the streets is not by any means that of furnishing tracks for street railways. The mayor and city council cannot divest themselves of this trust, nor can they so restrict their power over the streets as to defeat, or seriously impair, the beneficial enjoyment of the streets by the public in the ordinary and usual modes of passage thereon." That case was approved in Poole v. Falls Road R. W. Co., 88 Md. 538, 41 Atl. 1069, and in C. & P. Tel. Co. v. Balt., 89 Md. 710, 43 Atl. 784, 44 Atl. 1033, and the principle thus declared we do not understood to be questioned by the appellee, though its application to the case at bar is apparently denied. As will be seen hereafter, however, we are of opinion that it has direct application to this case, and that it may be regarded as conclusive of this plaintiffs' right to recover. We have given very careful consideration to the cases relating to the recovery of damages for cutting off access to one's property, and especially in reference to the character of proof which will warrant recovery in such cases, though the appellees have not cited either in their brief, or in the oral argument, any authorities for their position, but have contented themselves with the statement of general principles deemed by them to be applicable and controlling. It is, of course, understood that for any injury to real property the plaintiff must, as in other cases, produce evidence to show the extent of loss, as a basis for the assessment of damages, beyond nominal damages, and we think that has been done in this case. We have found one case which apparently sustains the view of the defendant's counsel in this case, and we will briefly refer to it here. In Rumsey v. New York & New England R. R., 133 N. Y. 79, 30 N. E. 654, 15 L. R. A. 618, 28 Am. St. Rep. 600, the plaintiff was the owner of a parcel of land with a front of about 1,000 feet on the Hudson river, upon which was a brickyard, and the bricks made on the premises had been for many years hauled to the river shore, and Upon this testimony the plaintiffs rested, whereupon the defendant offered, and the court granted, the following prayer: "The defendant prays the court to rule as a matter of law that under the pleadings in this case there has been offered no evidence of damages to the property of the plaintiffs of such a character as to be legally sufficient to entitle the plaintiffs to recover, and therefore its verdict must be for the defendant." The exception to this ruling presents the only question raised by the record. The position of the defendant in its argument has, as we think, been correctly epitomized in the appellants' brief in these words: "The street at this point was not actually in use as a street, but was devoted exclusively to railroad purposes as fully as though it were a private railroad right of way. The plaintiffs' property never had used it, could not use it, unless some filling up of the ditch was done, and might never have occasion to use it. The plaintiffs' property was unimproved before the new track was laid, and is unimproved now. It has not changed hands or been sold or leased since, and there is no sufficient proof either that the new track has depreciated its value, or, if so, to what extent the depreciation has gone." We market. This use was discontinued about forms to that understanding, and that case cannot be regarded as an authority against the plaintiffs' right to recover in this case. But, if it were conceded to be adverse to the right of recovery in this case, we could not adopt it as authority without departing from the principles established in decisions in this state which we regard as sound and as applicable to the case before us. In Lake Roland El. R. W. Co. v. Webster, 81 Md. 529, 32 Atl. 186, the appellee rented from Wm. H. Birch a lot on North street in Baltimore city for a term of five years at the annual rent of $1,200. The elevated railroad was in the middle of the street, not directly in front of the rented premises, but beginning 12 feet from the northern boundary. The lot was occupied by a livery stable kept by the plaintiff, and he rented the property for that purpose. After the completion of the elevated structure, the landlord reduced the rent to $900. But the plaintiff, contending that this reduction did not measure his loss, sued the railway company and obtained a judgment for $1,000, which was affirmed on appeal. The trial court granted the following prayer to the plaintiff: "If the jury shall find from the evidence that the rental value of the premises occupied by the plaintiff as tenant of Wm. H. Birch under the written lease offered in evidence has been diminished by the construction and use of the elevated railway of the defendant corporation on North street, then the plaintiff is entitled to recover, and the measure of damages is the amount which the jury shall find said rental value has been so diminished." In passing upon this prayer, the court said: "If the jury found that the usable value of the property was destroyed or diminished by the cause alleged, they were justified in finding a verdict for the damage done. Great exception is taken to the language of this prayer. But it seems to us that its fair meaning is that the jury are to find the damages which the plaintiff sustained, as tenant of the premises, by the diminution of its rental value. It could not easily be construed as meaning that they were to find the damages which the landlord had suffered." We have referred to this prayer, and to the language of the court in considering it, because it emphasizes the distinction between that case and the present case, and because the court in italicising the word "usable" in its consideration of the prayer indicates clearly that if the landlord, the owner of the property, had been suing in that case, he could not have been limited in his proof to the usable value of the property in the condition in equivalent terms, and as excluding salable which it then was, as apparently held in the or market value in such cases, we cannot New York Case, supra, and as contended adopt such limitation of proof of damage. If, on the other hand, the case is not to be so understood, and usable value was to be understood as salable or market value, then * * * * * * by the appellees in this case; but could have recovered the damages which he suffered, namely, the diminished salable value. In Lake Roland Co. v. Frick, 86 Md. 259, 37 fee of a vacant lot on North street, and the elevated railway was in front of a portion only of this lot, and impaired the access thereto, thus diminishing its value. The plaintiffs' first prayer, which was granted, after setting out the necessary preliminary facts, instructed the jury: "And if they shall further find that the said structure in front of said lot impaired the access to said lot originally afforded by said street, and rendered the said lot or some part of it less advantageous for building purposes than it was previously, and made the market value of said lot in the lifetime of said Robert Garrett less than it would have been if said structure had not been so erected in front thereof, then the plaintiffs are entitled to recover in this action the amount of such depreciation thereby given to said lot." The testimony upon which that prayer was based was the testimony of A. L. Gorter, who said he knew the market value of the lot before the railroad was built, and its market value after it was built, and that, after it was built, its value was diminished to the extent of $15,000. Other witnesses also testified to the diminution in value by the construction of the railroad. There was a verdict for the plaintiff, and judgment thereon, which was affirmed on appeal. We can discover no ma the injured party may resort to different means of arriving at the result, to be judged of by the jury under proper instructions. Thus in Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642, where damages were claimed as the result of the deposit of tan bark in a mill pond, the damages were held measureable either by proof of the difference in value of the property with and without the deposit, or by the cost of its removal and the restoration of the property to its former situation. And in Gaslight Co. v. Colliday, 25 Md. 1, where the action was for damages by severing the pipe which conveyed gas to the property of the plaintiff, it was held the jury might consider the diminution of value of the property for sale or lease and the cost of restoring the premises. For the reasons stated, we think there was error in granting the prayer withdrawing the case from the jury. Judgment reversed and new trial awarded, with costs to the appellants above and below. (114 Md. 241) SUMAN et al. v. HARVEY et al. (No. 11.) (Court of Appeals of Maryland. Jan. 10, 1911.) terial distinction in principle between that 1. WILLS (§ 524*) -CONSTRUCTION-DEVISE case and the present. We may assume that North street was a more improved street than Ostend street at the point where the present plaintiffs property is situated; that there were houses and sidewalks on North street at that point, and that the bed of the street was paved with some material. There may have been better and more con venient use of the street, and access thereto from the abutting property on North street, but that would go only to the quantum of injury, and would not distinguish the cases in principle. The right of access is the test of the right of action in such cases. The character of the testimony given in the present case by Messrs. Newbold and Hurst was the same as that given by Mr. Gorter in the Lake Roland Case. Both went to the diminished market value of the property. The method of arriving at the amount of damage done, pursued by Messrs. Newbold and Hurst, we do not think was open to objection, and it was admitted without objection. We think it a natural and legitimate mode of estimating the damage. There was evidence tending to show that the construction of the additional track destroyed the right of access to plaintiffs' property on that street, and certainly one legitimate method of ascertaining the resulting damage was to ascertain what it would cost the plaintiffs to restore the means of access by devoting a part of their property to that purpose. In 8 Am. & Eng. Enc. (2d Ed.) 547, note 8, it is said that, where the case admits of it, "HEIRS" "NEXT OF KIN"-WHEN ASCER TAINED. A devise to "heirs" or "next of kin" is construed as referring to those who answer that description at the time of the testator's death or who would have taken, by descent, had he died intestate, unless a different intention is plainly manifested by the will. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1117; Dec. Dig. § 524.* For other definitions, see Words and Phrases. vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678; vol. 5, pp. 4798-4804; vol. 8, p. 7732.] 2. WILLS (§ 489*) - EVIDENCE TO AID CON STRUCTION-SHOWING INTENTION OF TESTATOR - RELATIONS OF TESTATOR - DECLARATIONS. A testatrix devised her real and personal property, to be converted into cash by her executors and distributed "among my heirs at law and next of kin who may be entitled thereto under the laws of Maryland," and there were persons who answered to that description; but, while living, the testatrix had shown affection towards persons who did not come within the legal meaning of this description, and had assisted them, and had also declared that she intended, by will, to devise a share of her property to them. Held, that the language of the will was clear and unambiguous, and that the acts and declarations of the testatrix were not sufficient to control its meaning. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1039, 1040; Dec. Dig. § 489.*] 3. TRUSTS (§ 93*) - CONSTRUCTIVE TRUST MISTAKE BY TESTATRIX. A showing by the contestants of a will that the testatrix fully intended and supposed she was providing by her will for the contestants, but that she was misled into believing that the language in said will did, in fact, make such provision, is insufficient to establish a trust in the heirs at law and next of kin to whom the property was given in favor of the |