The opinion
Beck, J.
1. trespass : no evidence of extent : nominal damages. — I. The undisputed evidence and the pleadings show the following facts: Plaintiff owned the land in question, which was uninclosed . ' . and unoccupied. It was mainly prairie. . -. „ r,„ Plaintiff is not a resident of the state. The herd law is in force in the county wherein the land is situated. The defendant herded his cattle upon the land ; but the evidence wholly fails to show how long the land was so used by defendant, how many cattle he herded, and the value of such use, or any other fact which would enable the jury to estimate the damages, if any, which plaintiff sustained. It appears that other persons herded cattle upon the land during the time it was used by defendant. Any verdict, except for nominal damages, would have been found without evidence, and must have been wholly b'ased upon the merest conjecture. The court was right in refusing to submit the case to the jury for a verdict. It should have directed the jury to find a verdict for a nominal sum, if upon the law and the facts plaintiff is entitled to recover at all, which we do not attempt to decide ; only holding, for the purposes of the case, that, if plaintiff can recover at all, the recovery can only be for nominal damages.
2. appeal; versal torQOnilQdrl ud'^1" ages only. II. But an omission to award nominal damages, when the evidence shows a right to recover no more, is no ground for setting aside a judgment and granting a new' trial. Norman v. Winc h , 65 Iowa, 263 ; Case Threshing Machine Co. v. Haven, 65 Iowa, 359 ; Watson v. Moeller, 63 Iowa, 161 ; Watson v. Van Meter, 43 Iowa, 76 ; Wire v. Foster, 62 Iowa, 114 ; Insurance Co. v. Findley, 59 Iowa, 591 ; Rowley v. Jewett, 56 Iowa, 492 ; Portman v. Klemish, 54 Iowa, 198 .
III. The question as to the liability of defendant for herding cattle upon the uninclosed and unoccupied land of plaintiff we do not consider, for the reason that *645 its decision is not necessary for the disposition of the case. The judgment of the district court is
Affirmed.