
    NELSON, Respondent, v. BIG BLACKFOOT MILLING COMPANY, Appellant.
    [Submitted April 3, 1896.
    Decided April 6, 1896.]
    
      Appeai< — Remitting judgment to prevent new trial. — In an action for damages for removing timber from respondent’s land where the jury returned a verdict of $800 in two items, one for $600, the value of the timber, and one for $200 the damages to the land, and a new trial was directed on appeal because the appellate court was unable to determine to what extent elements upon which the proof was legally insufficient entered into the latter finding,"the judgment will be modified on rehearing by reducing it $200 upon the offer of the respondent to wholly remit that portion of the verdict.
    On Rehearing.
    For former report see 17 Mont. 553.
   Per Curiam.

Since the decision of this case the respondent offers to wholly remit the item of §200 damages, and asks that after such remission the judgment be affirmed as to the item of $600, the value of the timber cut. In the original opinion we did not fully review the testimony upon the latter-point, for the reason that we felt that the judgment was clearly reversible upon the question of the $200 item. But by respondent’s voluntary desertion of the latter item, the case is Left upon the $600 verdict and judgment only. By referring bo the former opinion, it will be seen that we pointed out the conflict in the testimony upon this matter, but without decidedly expressing an opinion upon its sufficiency. While the testimony as to a total damage of $600 is not entirely satisfactory to us, still we feel that there was amply sufficient to prohibit an appellate court from holding that it was so inherently improbable as to deny it belief. The respondent’s motion will therefore be granted. The judgment will be modified by re-lucihg it $200, and, as so modified, will be affirmed. The costs of the appeal will be equally divided between the carties.  