
    A. F. Dignowitty et al. v. J. M. Ballantyne et al.
    (No. 2250.)
    Appeal from Kinney County.
    
      (Transferred from Austin,J
    
    Ogden, Ogden & Johnson, counsel for appellants.
    No counsel appeared for appellees.
   Opinion by

Willson, J.

§ 194. Damage io uninclosed pasturage by domestic animals; rule as to; case slated. Appellees sued appellants for damages done to three hundred and twenty acres of uninclósed pasture land, by appellants’ goats eating and treading down the pasturage growing thereon. They claimed $600 actual damage and $300 exemplary damage, and recovered judgment for $100 and costs. Upon the trial appellants asked the following charge: “The owner of loose, straying or lost animals is not liable for damages done by such animals by grazing upon uninclosed lands belonging to another,” which charge was refused. Held, the charge is correct in principle [2 W. Con. Rep. § 360], but it was not error to refuse it, because the evidence did not warrant it. The evidence shows that appellants’ goats were not loose, straying or lost animals, but were herded by appellants’ herders upon appellees’ land, and such being the case, appellants are liable for the damage done to the land I137 said goats.

November 24, 1886.

§ 195. Excessive .verdict. The actual damage found by the jury, to wit, $100, is manifestly excessive. It is plain from the evidence that if appellees sustained anjr damage it did not exceed the market value of the pasturage destroyed by the goats, which market value, the proof showed, did not exceed five cents per acre, aggregating not exceeding $16. No other injury to the land except the consumption of the pasturage was shown to have been done by the goats. On the contrary, one of appellees himself testified that the land had been benefited, and increased in value $2 per acre, by the manure dropped upon it by the goats. "The consumption of the pasturage tvas only a temporary injury to the land, and there being uo other injury done to it, the actual damage was the market value of the pasturage and nothing-more. There was no evidence warranting a-recovery for any greater amount.

Deversed and remanded.  