#### W. R. HOWELL and wife, CARRIE D. HOWELL, v. THE NORFOLK AND CAROLINA RAILROAD COMPANY.

(Decided February 21, 1899).

Nonsuit.

In reviewing a judgment of non-suit, tbe appellate court will consider every proposition as proved, which, is necessary to he proved, when there is evidence tending to prove it.

Civil AotioN for damages to plaintiffs’ land by overflow and ponding water, caused by tbe alleged negligent and unskillful construction of defendant’s road, tried before Nor-wood, 11., at Eall Term, 1898, of Edgeoombe Superior Court.

Tbe complaint alleged tbe ownership in fee and possession by the plaintiffs of tbe land injuriously affected; tbe negligent and unskillful construction of tbe road by tbe defendant, over said land, and tbe continuing damage to said land resulting therefrom.

Tbe answer denied every allegation contained in tbe complaint and set up tbe statute of limitations as a defense.

Tbe plaintiffs introduced evidence tending to prove that prior to the building of defendant’s road, in 1889, tbe plaintiffs owned two-sixths interest in what was known as “tbe Knight land” in Edgecombe County, a tract of something over 400 acres — the fe me plaintiff by inheritance and tbe male plaintiff by purchase — one-sixth each; that in 1890 there was an actual division among tbe tenants in common by a final decree of the Court, and in 1891 tbe male plaintiff conveyed bis portion to tbe female plaintiff, his wife — constituting her the owner of one-third of the Knight land, and that this is the land described in tbe complaint as injuriously affected by the wrongful conduct of tbe defendant. There was *25evidence tending to show that in constructing its road the defendant company, without cause or necessity, cut away for the distance of 82J yards an embankment four feet high, which had been thrown up and maintained for more than fifty years by the owners of said land, as a protection against Mill Swamp, a natural water-course forming the eastern boundary of the property, and that at the same time the company had dug ditches along its right-of-way into the run of said swamp, and that by reason of the removal of said embankment and the cutting of said ditches, a large part of the waters of said swamp was diverted from the natural run of same and turned upon the lands of plaintiffs, thereby rendering valueless some ten or twelve acres, theretofore valuable for agricultural purposes, and had also dug a number of large pits, partly on and partly outside of the right-of-way, in close proximity to the dwelling of plaintiffs, which were usually filled with water diverted from said swamp, and became stagnant and unhealthy, and during the summer months caused sickness in plaintiffs’ family.

There was evidence tending to show the amount of damages which plaintiffs had sustained by reason of the wrongs complained of.

The defendant introduced no evidence.

The Court intimated the opinion that the plaintiffs could not recover on the evidence offered, and thereupon they excepted to the ruling of the Court, submitted to a judgment of nonsuit, and appealed to the Supreme Court.

Messrs. Gilliam, & Gilliam, for plaintiffs (appellant).

Mr. John L. Bridgers, for defendant.

Furches, J.

This is an action for damages to plaintiffs’ land by the overflow of water caused by the negligent and *26unskillful manner in wbicb tbe defendant constructed its road.

Upon tbe close of tbe plaintiffs’ evidence, tbe Court intimated tbe opinion that plaintiff's could not recover, and plaintiffs submitted to a judgment of nonsuit and appealed.

There are no grounds set out in tbe statement of tbe case why tbe Court was of tbe opinion that plaintiffs could not recover. And we would bave been at a loss to know upon wbat grounds tbe opinion of tbe Court was founded, if they bad not been stated by defendants’ counsel in bis brief. We learn from tbis, that there were two grounds that appeared to bis Honor as defects, that influenced him to come to tbe judgment be did: First, that plaintiffs failed to allege and prove that they were tbe owners of tbe land alleged to be damaged, and secondly, that it appeared to bis Honor that plaintiffs were tenants in common ¿with other persons, and that tbis was not alleged in tbe complaint.

It is not necessary that we should consider whether possession would not entitle tbe plaintiffs to at least nominal damages; nor is it necessary that we should consider whether one tenant in common could not maintain such an action, wbicb is trespass or in tbe nature of trespass, as neither of these questions is presented by tbe record. Nor is it necessary that we should decide that any proposition, necessary to be proved by plaintiffs, was established. It is sufficient in such cases of nonsuit, where it is our duty, to take every proposition, when there is evidence tending to prove it, as proved.

Tbe plaintiffs allege their ownership in fee-simple. There was evidence tending to prove that one Knight owned the land before defendant constructed its road, in 1889; that he died, and it descended to bis beirs-at-law, six in number; that it bad been divided between them under proceedings in *27Court; that embankments four feet high had been made along the stream fifty years ago to prevent the overflow of water on plaintiffs’ land, and that these embankments had been constantly kept up for fifty years; that the lands mentioned in the complaint were two of the shares of the Knight lands, one of them falling to the feme plaintiff in the division, and the other share she acquired by purchase from one of the other heirs of said Knight; that there was evidence tending to prove the negligent construction of the road by the defendant, the damage caused thereby, and the amount of said damage.

This being so, we can see no ground upon which the ruling of the Court below can be sustained, and there must be a new trial.

New trial.