
    C. W. Garrett v. N. Chambliss.
    It is not error, to refuse giving instructions which are inapplicable to the case, as developed by the testimony.
    Appeal from Lavaca. Tried below before the Hon. Fielding Jones.
    This was an action of trespass to try title, and for damages to two certain tracts of land, brought by Nathaniel Chambliss against C. W. Garrett. The real matter of dispute was a question of boundary between the tracts of the respective parties, who derived their titles from a common source. The plaintiff claimed $1000 as damages, from the defendant, for cutting a ditch, about 1200 varas in length, upon the land of the former.
    The plaintiff proved title to the land in controversy, and damage to the amount of fifty dollars. When the ditch was cut, there existed a controversy between the plaintiff and the defendant, in regard to the boundary-line between them. That matter was afterwards submitted by them to arbitration, which resulted in awarding to the plaintiff the title to the land; but no question in regard to damages was submitted to the arbitrators.
    It was proved on the trial, that while the defendant was cutting the ditch, the plaintiff came to where the defendant’s overseer was engaged in the work, and asked the latter, “if he was on the line,” to which he replied, that “ he thought he was.” That the plaintiff looked up and down the ditch and said, “he supposed he was about right.” That the plaintiff was frequently present, whilst the ditch was being cut, and made no objection; but consented that the defendant might cut a small side ditch through his land, to empty into the creek, distant a few steps from the main ditch.
    The defendant asked the court to instruct the jury, “ that if the plaintiff stood by and saw Garrett cutting the ditch, he, Chambliss, knowing the same to be on his land, and said nothing, and did not object, he is now debarred from claiming damages for the supposed trespass.” This instruction was refused.
    There was a verdict and judgment rendered in favor of the plaintiff for fifty dollars damages.
    
      B. M. Tevis, for the appellant.
    
      Allen Ha\e, for the appellee.
   Bell, J.

We are of opinion that there is no error in the judgment of the court below. The instruction asked by the attorney for the defendant below, was not applicable to the case, as developed by the testimony. The evidence showed that there was a controversy between the parties about the boundary-line of their respective tracts of land. There was no evidence to show that Chambliss consented to the cutting of the ditch by which he alleged that he had been damaged, “knowing the same to be on his land,” and the court, therefore, did not err in refusing to give the instruction asked. The judgment of the court below is affirmed.

Judgment affirmed.  