delivered the opinion of the *254court. This is an action of trespass for cutting timber in the cypress swamp of the plaintiffs.
r! Vacant lands do not gcner-allypass without a written to there are cuttinT tim-her, the raea-sure of damages is the va-iue of the tim-her destroyed Hsndfstanc! timher.'her Parol dence cannot be received pr/ctice'of veyoraiVexI elude swamps in surveying land granted in the Aunt pas.The defendants pleaded the general issue, hiat they are proprietors and reside on tracts of land granted more than thirty years ago, by the Spanish government, to Fran- . T , , * & cis Legura, and other emigrants from Spam to Louisiana, to whom the said cypress swamp 7 4/1 * A granted in common—and the defendants as heirs or vendors of the said emigrants, are . entitled to cut and carry away cypress trees in J j j r gajd swamp, for the use of their respective 1 plantations—they pleaded the prescripts of thirty, twenty and ten years.
There was a verdict, and judgment against o o o them, and they appealed.
Our attention has been called toseveral bills 0f exception, 1
j rj'j¡e first is to the opinion of the coujt, refusing to permit parol evidence to be given, that the locus in quo was assigned to the Spanish emigrants to Nova Iberia, by the commandants, and agents of the king of Spain, to afford them building timber—except to prove possession in support of the plea of prescription.
2. The next was to the charge of the court. *255that if the jury allowed damages, they should confine themselves to trespasses committed after notice of the plaintiff’s title and before the inception of the suit, taking into consideration the defendants’ good faith, and if the jury believed the defendants had trespassed after notice, the measure of damages should be the real value of the timber destroyed, considering the plaintiff’s situation.
3. Another was to the rejection of Johnston, the surveyor appointed by the court, who was offered as a witness to prove that part of the survey, by him returned, was accurately taken from the field notes, of another survey made by him, in 1814, under the authority of the U. S.
4. Another, was to the admission of the same person to prove, that the survey returned to this court, was returned by him, to the office of the principal deputy surveyor, and approved by the latter.
5. A fifth was to the rejection of parol evidence, that during the latter part of the Spanish government in Louisiana, no grant of cypress land was made in the Attakapas, by the governor and commandants—that surveyors, in laying out new grants, stopped at cypress *256swamps, in running back, and the genéral understanding among the officers of the king and his other subjects, was, that the cypress timber not theretofore purchased, was reserved to the people of Attakapas, in common.
6. Another, was to the permission given by the court to the plaintiff’s counsel, to ask one of these witnesses, “What was, in his opinion, the diminution in value of the property in dispute?” considering its situation and remoteness, from other timber, in consequence of the waste committed by the defendants.
7. The last was to the refusal to admit in evidence, a book, in which were entries óf supplies, by the Spanish government, to Jerome Gañido, a Spanish emigrant.
L It is true, as a general principle, that patent lands do not pass without a written grant, but to this there are exceptions.
In the case of Gonzalez vs. Sanchez & wife, we held that a Spanish emigrant, placed by government on the bayou La Fourche, needed not to produce a grant to establish his title, to the land on which he had been located; and it is sufficient that he should establish by parol testimony, that the king’s officers had placed him thereon, arid designated the metes and *257bounds of his land; and we stated the ground 7 ° of this opinion, 11 Martin, 207. We see no reason to be dissatisfied with it. If after lo-eating 120 settlers, of Nova Iberia, the officers of Spain, assigned a neighboring swamp in the neighborhood, as a place, the lumber of which they were to enjoy in common—we are unable to say that this assignment to all cannot be proven by parol, while the assignment of a tract to each individual may. We think the court erred in the opinion to which the first bill of exception was taken.
II. It does not appear to us that the defendants were injured by charge of the court—the measure of the plaintiff’s damages, if any were done, was certainly the actual value of the timber, considering its distance from other timber.
III. & IV. The surveyor having made his return, and filed his plot, it was unnecessary to ask him any question as to the manner in which it had been effected—and it could derive no additional validity from its conformity to another plan, filed in the office of the deputy attorney general of the U. S. and approved by that officer.
V. Parol evidence was properly rejected *258of the alleged practice of Spanish surveyors, m » r • , n j excluding swamps, m surveying lands granted m the Attakapas.
VI. The district court did not, in our opinion, err in allowing the plaintiffs to ask a witness, w hat was the diminution in value of the locus in quo, (by the waste committed on it) considering the distance of other timber.—For the solution of this question was necessary to a just assessment of damages according to the rule we have laid down, in considering the second bill of exception.
VII. The book of Jerome Gañido, between whom, and either of the parties, there appears no connection—cannot be evidence for the defendants. The circumstance of his having been an emigrant like them, and having received supplies from the royal stores, are of no use-in deciding the present case.
It is therefore, ordered, ajudged, and decreed, that the judgment of the district court, be annulled, avoided, and reversed, the verdict set aside, and the case remanded to the district judge, directed to allow parol evidence of the assignment of the locus in quo, as a common to the settlers—and that the plaintiffs qnd appellees pay costs in this court
Simon <£■ Brownson for the plaintiffs, Ba- ’ 1 her Sf Bowen for the defendants.