But two of the alleged errors, as presented by the appellants in the above-entitled action, need examination and comment : First. It is urged that it was error to permit testimony bearing upon the value of plaintiff’s pasture land and a strip of his garden. *62Although the complaint, in effect, alleges that both pasture and garden were destroyed by the overflow of water from appellants’ mill-dam, the trial court seems to have admitted this testimony, that it might aid the jury in arriving at its fair rental value. But, in any event, there was no material error in this, because the proper measure of damages was stated, and the jury charged that plaintiff was entitled to recover, if anything, the rental value of the overflowed land. Second. Error is claimed because the court did not confine a recovery to such damages only as had been sustained within the two years immediately prior to the commencement of the suit. The testimony in the case, the requests prepared and submitted in appellants’ behalf, and the charge of the court, indicate that on the trial no claim was made that the statute of limitations would bar a recovery. No testimony pertaining to such a defence was offered, nor was the statute alluded to in the appellants’ carefully-drawn requests, nor did the court mention it in its charge, in.which the issues, as then understood, were briefly but fairly stated. The counsel who managed the case of the defendants below (not the appellants’ counsel qp this appeal) overlooked, upon the trial, as well as when preparing their answer, the special limitation in such cases, Gen. St. 1878, c. 31, § 17, — construed in Thornton v. Turner, 11 Minn. 237, (336,)—and the attempt is now made to fasten the responsibility of the oversight upon the trial court. Such inadvertence of counsel should not avail upon motion for new trial.

Order affirmed.