charging the jury:
Gentlemen of the jury:—We decline to instruct you to find for the defendant.
This is an action of trespass brought by George Cochran and Rachel Hagey against The Mayor and Council of the City of Wilmington to recover damages for certain alleged trespasses up
¡ Trespass briefly stated is an injury to the possession of another. In order to entitle the plaintiffs to a recovery in this action they must first show that they were in the lawful possession of the lands upon which it is alleged certain trespasses were committed, and second they must show that the alleged trespasses were in fact committed by the defendant, or its servants, agents or employees.
In considering this case you will dismiss from your minds altogether any acts of trespass alleged to have been committed since Oct. 11, 1906, the date upon which this action was brought and further you should not consider any alleged acts of trespass not committed by the defendant, or its agents or servants, acting under the authority of the defendant. You will not consider anything done by Nolan Brothers after October 11, 1906, in grading Thirtieth Street or by any railway company in laying rails or erecting poles.
If you find under the evidence that Thirtieth Street was prior to October 11, 1906, and at the time of the laying of the water pipes, a public highway and that the pipes were laid in the bed of that street or highway, then the plaintiffs would not be entitled to recover for any damages for acts committed within the limits of said highway.
Any unlawful entry upon another’s land constitutes a trespass and the law implies damages for such a trespass but the amount depends on the damage actually done.
It is for you to say under all the evidence in this case whether the defendant by its agents or servants did, in making the alleged surveys and in laying the water mains in Thirtieth Street, trespass upon the lands of the plaintiffs and if they did, what, if any, damage the plaintiffs sustained thereby.
Verdict, for defendant.