John Norvell and Ann Norvell v. Richard Thompson, 2 Hill 470

Harper J. This is a very unimportant case, but in strictness of law I suppose the plaintiffs are entitled to their motion. If a trespass be proved, the- plaintiffs are entitled to some damages, though they may be merely nominal. Some damage was certainly proved, though very trifling. In some cases, where the jury has been rightly instructed on the point of law, but in cases of very trifling trespass, has thought proper to find for the defendant, this Court,, being satisfied that substantial justice was done, has refused to interfere. But this is the privilege of the jury.

The Court is bound to. afford relief against art erroneous instruction by the Court on a point of law. There is something in the reasoning of the plaintiffs’ counsel. No trespass can be conceived more trifling than the mere passing over the unenclosed land of another, and it would be impossible to estimate the damage resulting from a particular act of this sort. Yet, if no recovery could be had in a case of this sort, the trespasser, by repetition of the act and the lapse of time, might acquire the right of way, in spite of any thing that could be done to prevent it. Henry, for the motion. Williams, contra.

The motion is granted. Johnson and O’Neall, Js. concurred.