A. L. Duncan, et al., Appellants, vs. John Jackson, et als., Appellees, 16 Fla. 338

Me. Justice Westcott delivered the opinion of the court. This is an action of ejectment wherein there was judgment for the appellants, who were plaintiffs in the court below. The land for which the action was brought was a lot in the city of Pensacola, and the judgment was for one-half of it. There was a motion for a new trial, which was denied, and from the consequent judgment this appeal is prosecuted. There are several grounds upon which this motion was based, but in the disposition of the case we refer to only one. Under our statute, (Chapter 999, Laws,) the 'plaintiff is entitled to recover mesne profits.

The jury was so instructed in this case. There was no conflict in the testimony. The witness W. E. Lee testified that “ a fair rental value of the premises since suit was brought would be about nine dollars per month. I will say one hundred dollars per year. The yearly rental of a vacant lot like lot number thirty would be three or four dollars per month.” The jury in giving no damages failed to comply with the instructions of the court, as well as to conform to the uncontradicted testimony in the cause.

The respondíais insist that the jury did not give damages, because the value of the improvements was considered equal to the rents. If the defendants were entitled to the value of the improvements under the statutes of this State, (the statute for the relief of occupying claimants, Chap. 233, Laws,) the method prescribed by the act for ascertaining the value of the improvements must be followed. Before this is thus ascertained, the defendant cannot be said to have any right which he can set off or recoup. As this case goes again to a jury, we do not comment on the other questions.

They relate principally to conclusions of fact, and only involve the consideration of some rules of evidence, which can be best administered without embarassment from this court in the trial to be had. Judgment reversed and new trial awarded.