
    John Norvell and Ann Norvell v. Richard Thompson.
    
      Before Mr. Justiee Earle, at Spartanburgh, Fall Term, 1834.
    lu trespass guare clausum fregit, if a trespass be proved, the plaintiff is entitled to some damages, though they may be merely nominal; and when in such case the presiding judge instructed the jury that as the trespass was inconsiderable, they might findforthe defendant, which thoy did, a new trial was grouted. 
    
    The presiding judge made the following report:
    
      Trespass qxiare clausum fregit. The trespass was committed on the woodlands of the plaintiffs, and consisted in cutting a few saplings and bushes along an old path, in order to open it sufficiently for the passage of wagons, carts, &c. The defendant supposed the land belonged to another person, to whom he applied for permission and obtained it, both being under a misapprehension as to the plaintiffs’ line. None of the witnesses could venture to assess the value of the timber cut, or estimate the damage. I instructed the jury if there were actually no damage done, or if it were so inconsiderable that it could not be estimated, as the defendant set up no claim to the land, and supposed he had permission of the real owner, they might find a verdict for the defendant; and they did so.
    The plaintiffs gave notice of an appeal in this case, and that they would move the Court of Appeals for a new trial, on the following grounds :
    1. Because a trespass having been proven, the verdict could not legally be for defendant.
    
      2. Because his Honor was mistaken in law, in charging the jury that where the trespass was very small they might find for defendant.
    
      
      
         See Richardson v. Dukes, 4 M'C. 156; Duff v. Hutson, 2 Bail. 215; Wise v. Freshley & Veal, 3 M’C. 547.
    
   Harper J.

This is a very unimportant case, but in strictness of law I suppose the plaintiffs are entitled to their motion. If a trespass be proved, the- plaintiffs are entitled to some damages, though they may be merely nominal. Some damage was certainly proved, though very trifling. In some cases, where the jury has been rightly instructed on the point of law, but in cases of very trifling trespass, has thought proper to find for the defendant, this Court,, being satisfied that substantial justice was done, has refused to interfere. But this is the privilege of the jury. The Court is bound to. afford relief against art erroneous instruction by the Court on a point of law. There is something in the reasoning of the plaintiffs’ counsel. No trespass can be conceived more trifling than the mere passing over the unenclosed land of another, and it would be impossible to estimate the damage resulting from a particular act of this sort. Yet, if no recovery could be had in a case of this sort, the trespasser, by repetition of the act and the lapse of time, might acquire the right of way, in spite of any thing that could be done to prevent it.

Henry, for the motion.

Williams, contra.

The motion is granted.

Johnson and O’Neall, Js. concurred.  