#### J. H. CLARK, J. F. McARTHUR and J. D. McARTHUR v. ATLANTIC COAST LINE RAILROAD COMPANY, a Corporation.

(Filed 10 October, 1928.)

Appeal by defendant from Crdnmer, J., at February Term, 1928, of LeNOIR.

No error.

Shaw & J ones and Sutton & Greene for plaintiffs.

Bouse & Bouse for defendant.

Pee CueiaM.

This action was before this Court at Fall Term, 1926, when a new trial was granted on defendant’s appeal. Clark v. R. R., 192 N. C., 280. It was said in that action, at page 284, speaking in reference to the agreement set up by defendant in bar of recovery. “The proviso requires the ditches now in use to be kept open as agreed upon on the right of way. Defendant pleads the paper-writing as a defense and relies on it, and claims the benefit under it, and consequently must be responsible for the burdens and keep the ditches on the right of way open as agreed upon. Plaintiffs have a right of action under this particular proviso. Under our liberal practice, we think the allegations in the complaint sufficient, and that the issue should be limited to this view of the case.”

The issues submitted to the jury in the present action and their answers thereto were as follows.

“1. Was the plaintiffs’ land injured by the failure of the defendant to keep open the ditches in use on said land on 24 March, 1903, as required in the agreement dated 24 March, 1903 ? Answer: Yes.

“2. What damages, if any, are plaintiffs entitled to recover for the three years prior to 23 June, 1924? Answer: $2,000.”

*807We think tbe careful judge in the court below tried the case in accordance with the opinion of this Court on the former appeal. . The facts were found by the jury in favor of the plaintiffs. There was evidence sufficient to be submitted to them and the probative force was for them. In law we find

No error.