
    Moyer v. Fretz.
    Where, in an action of trespass for the obstruction of a riff lit of xvaiff -by prescription, the court below, in the charge, committed error as to the.measure of compensatory damages, the supreme court will not reverse, if the-defendant in error, upon the argument in the supreme court, moves for an amendment of the record and remits all but nominal damuges.
    
    Feb. 15, 1889.
    Error, No. 217, Jan. T. 1888, to review a judgment on a verdict for plaintiff in an action of trespass by Levi L. Fretz against Isaac II. Moyer et all, trustees of tlie Perkasie Mennonite Denomination, of llilltown Township, at Dec. T. 1886,-No. 18.. Green and Clark, J J., absent.
    • - The. declaration in the first count claimed damages fbr the wrongful and injurious obstruction of a right of way across the land’ of tlie defendants; the second count alleged that the defendants did wrongfully and injuriously, and without the leave or license of the said7plaintiff, and against his will, built and erected, etc., a building; iii .and upon the aforesaid way, etc., to his damage, etc., claiming $5,000 damages, in each count. -
    . The plaintiff offered evidence to prove his case. The defendants-offered evidence to prove that the plaintiff had two other ways of- reaching the public road.
    The charge of the court was, inter alia, as follows, by Yerkes, ' P. J.: “. . . [It matters not whether lie may have one or a dpzefi other ways on and off his property. The. question as to whether he has another way or not, would only become important. upon this point in' a case involving the existence of a right of way b'y necessity; that is, where one is entitled to .a- way because he has ■ no,-other. But the claim in this case is not of. a right of way by necessity, but by prescription. Therefore, it is immaterial to your inquiry whether he has more than one. way or not.] . [2] . . . [What is the difference in the value-of his property (because it is of. the-injury to the-property he occupies, that he complains-;, not to himself as an individual) — with the obstruction as proved and asi you shall find it, if you find any, and the valué of, the property' without any such obstruction, if lie has such a right of way out there % How much has the value of his property been affected by the obstruction ?] [1] ...”
    Yerdict and judgment for plaintiff for $110 and six cents costs.
    
      The assignments of error specified, 1 and 2, the .portions of the. charge, given above, quoting them.
    The plaintiff below moved this court, upon the argument,- for leave .to strike out the second count of the declaration and .to.eptef' nominal damages only, to wit, six cents damages and six cents- costs, The motion was allowed.
    
      Alfred Fackenthall, with him. J. M. Shellenberger, for plaintiff in error.
    Compensation is the proper measure of damages in the • absence of aggravation. Nagle v. Mullison, 34 Pa. 48; Rose v. Story, 1. Pa. 190; Good v. Mylin, 8 Pa. 51; Amer v. Longstreth, 10 Pa. 145; Forsyth v. Palmer, 14 Pa. 96; Hodgson v. Millward, 3 Gr. 411; Pitts., Cin. & St. Louis R. R. v. Lyon, 23 W. N. C. 69.
    "When the case is one for compensatory damages only, it is error to instruct the jury that they may give such further damages as, under all the circumstances, they may think the plaintiff entitled to. Pose v. Story, supra; Amer v. Longstreth, supra.
    In an action for damages for the obstruction of an alley, it is competent for the defendant to prove, by way of mitigation of damages, that it was not the plaintiff’s only means of access to the rear of his property., Demuth v. Amweg, 90 Pa. 181.
    
      Geo. Ross, with him Samuel Z. Freed and L. L. James, for defendant in error.
    The offer to prove the existence of other ways was admitted, and the defendant below had the full benefit of such fact before the jury on the question of damages; but, on the question whether he was entitled to the enjoyment of the particular way claimed.by the plaintiff below, and alleged to have been acquired by prescription, the existence or non-existence of other easements of a similar character could throw no light.
    The instruction of the court below, as set forth in the first assignment, is in entire accord with the views expressed by this court in Seely v. Alden, 61 Pa. 302, and Sanderson v. Pa. Coal Co., 102 Pa. 374.
    Feb. 25, 1889.
   Per Curiam,

The only error committed by the learned judge upon the trial below, was in his instructions to the jury upon the measure of damages. The plaintiff below moved the court, upon the argument at bar, for leave to strike out the second count in the declaration and to enter nominal damages only, to wit, six cents damages and six cents costs. This motion was allowed. It leaves the plaintiff with his right of way established by the verdict of the jury and the judgment of the court thereon, and cures the only matter of which the defendants below have any cause of complaint.

Judgment affirmed.  