| Mo. | Mar 15, 1872
delivered the opinion of the court.
The plaintiff sues in trespass for entering upon 'his lot and removing the dirt, and his witnesses fixed the value of the soil removed at $256. The court instructed the jury that the plaintiff was not only entitled to recover the market value of the soil so removed, but also the difference between the value of the lot before the trespass and after the dirt had been removed. The jury gave a verdict for $200, upon which judgment was rendered, and the defendant assigns for error the said instruction.
From an examination of the record I am satisfied that the judgment was right, whether the instruction was right or wrong. The defendant was an admitted trespasser; his liability to pay something cannot be denied; all the plaintiff’s witnesses agree as to the value of the soil removed, while no value is fixed by defendant, some thinking it not salable. If the cause is remanded, the- plaintiff can but recover judgment, and quite likely for a larger sum. The jury entirely disregarded that part of the instruction assumed to be erroneous, and the defendant must be a loser were we to give him a new trial.
Judgment affirmed.