By the Court. —
Benning, J.
delivering the opinion.
Ought the Court to have granted the motion for a new trial?
We think so. We think that the following propositions are true :
1st. That if Ward put the cotton on the land of Grier without Grier’s consent, Grier had the right to remove the cotton from his land.
2dly. But, that Grier, in the exercise of this right, was bound not to injure the cotton unnecessarily.
3dly. That if the cotton belonged to Davis, Ward could not recover anything.
4thly. That if the cotton belonged to Ward, yet if, by himself or another, he got it again, he was not entitled to recover as much as the whole value of the cotton, but was, at best, entitled to recover only such a sum as would be sufficient to compensate him for the injury, if any, which the cotton had sustained in consequence of the act of Grier, and for the necessary expense, if any, of getting the cotton again.
5thly. That what this injury and expense, if any, amounted to, the onus was upon him to show.
It may be assumed, that the first and second of these propositions, are true.
As to the third, this at least may be assumed, that if the cotton belonged to Davis, Ward, if entitled to recover anything, was not entitled to recover more than nominal damages ; for the proof was, that Davis got possession of the cotton after the alledged trespass; and there was no proof, that Ward was at any trouble, or expense, in and about Davis’s getting that possession.
But there was no proof, that what Grier caused to be done to the cotton injured the cotton at all, or put any body to any expense at all. The proof was rather the other way. And even if what Grier caused to be done to the cotton, had been followed by injury to the cotton, or expense to the owner of it, yet, Grier, would not have been liable to pay for such injury or expense, unless the injury or expense were greater than would have been the injury, or expense, that would have followed from Grier’s exercising his right of removal of the cotton, in the most unexceptionable manner, had he exercised the right in that manner; and if the injury or expense were greater, he would have been liable to pay only for the excess.
Taking the state of the proof into consideration, we may, therefore, say that this third proposition is strictly true.
The fourth proposition will hardly be denied, when it is remembered, that the act of Ward, in depositing the cotton on the land of Grier, was itself a willful trespass; and that the act of Grier, in removing the cotton, was, at most but the assertion of his rights with two much recklessness. This being so, that Ward was not in a condition to ask for vindictive damages against Grier, will hardly be denied.
The fourth proposition gives him a right to compensation; it denies him nothing but vindictive damages, and perhaps its measure of compensation is too large. See latter part of the second paragraph on the third proposition.
It is a general rule, that, upon the party who is the plaintiff, lies the onus of proving the amount of his damage. We see nothing in the present case to take the case out of this
general rule. The fifth proposition, therefore, we take, to be true.
Now it is manifest, that if these propositions are true, some of the grounds of the motion for a new trial were well founded. It is unnecessary to specify which, or otherwise to notice those grounds more particularly, we grant a new trial, and what has been said will doubtless be sufficient, to go by on the new trial.
Judgment reversed.