Abercrombie & Williams v. Windham

DOWDELL, J. This is an action of trespass quare clausum fregit brought by appellee against appellants The plaintiff claims in his complaint damages for a con182 tinning .trespass upon Ms land by defendants’ stock, from the 8th day of May, 1898, to the 20th day of July, thereafter. The evidence fails to show a continuing trespass as averred in tlie complaint, but on the contrary without conflict shows several separate and distinct trespasses between the dates named in the complaint. On this state of the evidence, the defendants were entitled to the affirmative charge requested by them in writing. There was no proof of any permanent injury done to the land or freehold by the trespass; the evidence by the plaintiff being only to the extent that the defendants turned their mules in upon plaintiff’s land, which at the time was an uncultivated enclosure, with a growth of grass and herbage upon it. Under this state of the evidence, the difference in the market value of the land in May before the trespass and in July after the trespass is an improper measurement of damage. The market value of the land between the dates mentioned could have been affected by various causes, and for that reason could not be a fair and safe measure of damages, ■where merely an act of trespass is shown without more. The difference in the market value of land before and after the trespass might become competent evidence to he considered by the jury when taken in connection with other evidence tending to show injury to the land or freehold resulting from the trespass. The court erred in refusing the written chárges requested by the defendants, which were in accordance with what we have said above, as well as in that part of its oral charge to the jury wherein it instructed the jury that the measure of damages in this case was the difference between the market value of the land before and after the alleged trespass. For the errors pointed out the judgment of the circuit court is reversed and the cause remanded.