
    Keirnan v. Heaton.
    1. Trespass: cultivation of land without leave: measure of damages. Where a person without leave enters upon the uncultivated land of another and raises a crop thereon and removes the same, the owner is entitled to recover the value of the crop removed, and the depreciation, if any, in the market value of the land on account of its cultivation; but the damages are not to be allowed in such case with reference to the owner’s intention to allow the land to remain unfilled, and evidence of such intention is immaterial.
    2.--:--: exemplary damages. Although the defendant in such case intended to commit a trespass, yet technical and intentional trespasses, without malice, on unimproved land are so common in this state that malice is not tobe inferred from the mere fact of such trespass; and where there was no other evidence of malice, it was error to instruct the jury that if they found malice they might allow exemplary damage.
    
      Appeal from Madison Circuit Court.
    
    Wednesday, June 16.
    Action to recover for trespass to real estate, and for appropriating certain crops grown thereon. There was a trial to a jury, and a verdict and judgment were rendered for the plaintiff. The defendant appeals.
    
      Dabney <& Guiher, for appellant.
    
      Ruby cfe Wilkin, for appellee.
   Adams, Cu. J.

The plaintiff is the owner of about ninety acres of land in Madison county, and is a non-resident. At the time of the acts complained of the land had never been cultivated by the plaintiff nor any one else, though, as we infer, the land in the neighborhood had been settled upon and cultivated for many years. The defendant, seeing the land lying in that condition, conceived the idea of fencing ami cropping it. He seems to have known that he had no right to do so, but it does not appear from the evidence that he had an intention of injuring the land. His idea seems to have been shown by what he said to one of his neighbors. One JBaur testified: “ He talked to me how he could raise a crop in there, and probably the owner would not appear, and he would fence it in, and it would not hurt the laud.” In the spring of 1881 he proceeded to carry out his idea. He fenced, broke and cultivated a little over fifty acres, and took off'the crop in the fall, most of which was corn. Soon thereafter this action was commenced. The plaintiff recovered §100, which appears to have been somewhat more than the value of the crop. The defendant contends that the plaintiff rvas not, on the whole, injured, but benefited, and that his recovery should have been limited to nominal damages as for a mere technical trespass.

I. The court instructed the jury, in substance, that they might allow for the value of the crops taken. This instruction is complained of, but, in our opiuion, it is correct. As the defendant was a mere tresPasser» the crops belonged to the plaintiff, and they remained liis even after the severance. See Murphy v. Sioux City & P. R. Co., 55 Iowa, 473, and cases cited. The removal and appropriation of the crops, then, were an injury distinct from any injury done to the land. It is true that it is not expressly averred that the plaintiff was the owner of the crops, and the defendant relies upon the want of such averment. But the facts averred showed the ownership, and that, in our opinion, is sufficient. The rule as to the measure of damages in a case like this appears to us to be correctly stated in Stuart v. Phelps, 39 Iowa, 18. The injury was a willful injury, and in this the case is distinguishable from Chamberlain v. Collinson, 45 Iowa, 433.

II. Evidence was introduced showing that the plaintiff’s purpose was to allow the land to remain untilled, and other evidence was introduced showing that the land wag damaged by being broken, if it was to remain long untilled, because it would be more or less washed and run into ditches, and would grow up to weeds. In our opinion, it was err<or to allow damages with reference to the proven purpose of the plaintiff to allow the land to remain untilled. Every person who has sustained an injury from the wrongful act of another is bound to use a reasonable effort to limit the effect of the act. This doctrine is too elementary to require support by citation of decisions. After the land had been broken it should be used as good husbandry required that it should be in that condition, and the question was as to how much less, if any, the land Avas worth in the market by reason of its having been broken. Noav, we have to say that it does not appear to be suggested that the land was worth léss in the market. Indeed, it seems probable that the land, taking into consideration the breaking and fencing both, was worth considerably moi’e than it would have been. ¥e think that the plaintiff’s actual damages Avere not greater than the value of the crops removed.

III. The court instructed the jury, in substance, that if they found malice they might alloAV exemplary damages. The defendant complains of this instruction. -We are not prepared to say that exemplary damages are not allowable for malicious injury to real estate. But malice is not to be inferred, from the mere fact that the plaintiff intended to commit a trespass. Technical trespassers upon real estate are very common. It is a matter of common observation that many persons in this state, seeing grass growing upon unoccupied land, which would otherwise go to waste, enter wrongfully upon the land, without any pretense of right, and cut the grass, and convert it into hay, and appropriate the hay. "We could not properly sanction a rule which would render all such persons liable for exemplary damages. There may, in one sense, be in such cases a willful wrong; but in the absence of any intention to put the land-owner in a’worse condition than he would otherwise have been, we do not think the trespasser’s acts can be deeriied malicious. Now, while the defendant took a great liberty, and his conduct was entirely unwarrantable, and while we do not feel disposed to encourage such conduct, we have to say that we see nothing in the evidence tending to show that the defendant intended, in what he did, to injure the plaintiff’s land, or that he did in fact injure it. He intended, of course, . to appropriate the crops, but the crops were the result of his own labor; and while they were not his, yet upon this question of malice we must look at his acts as a whole; and, so looking at them, we see no evidence that they were malicious.

In our opinion the instruction cannot be sustained.

Reversed.  