Razzo

Action for a malicious trespass in entering with force the plaintiff’s close, and diverting the waters of a certain spring. Verdict and judgment for plaintiff. Defendants appeal.

We do not think that the complaint was ambiguous, or that there was any misjoinder of causes of action. The circumstances adverted to by counsel were matters of aggravation, and the defendants must be held to have had no right to enter the close, for the plaintiff proved a peaceable possession under a paper title for several years; and, if defendants had any right of entry for any purpose, they should have pleaded it in justification, which was not done.

But we think there was error in the admission of evidence upon the question of damages. Conceding that where a trespass is malicious or accompanied with circumstances of oppression the damages may be exemplary, nevertheless some of the evidence was not admissible. The plaintiff was called as a witness, and was asked: “What do you estimate your damages per day from your loss of water from that spring ?” and was allowed to answer that he estimated his damages at about $4 per day. It is apparent from the use of the words “per day” that the question called…