#### L. A. JAMES and WALTER JAMES v. WESTERN CAROLINA POWER COMPANY.

(Filed 11 December, 1929.)

Appeal by defendant from Lyon, Emergency Judge, at July Special Term, 1929, of Bubke. No error.

Avery & Patton for plaintiffs.

W. 8. O’B. Robinson, John M. Mull, 8. J. Ervin a,nd 8. J. Ervin, Jr., for defendant.

Per Cubiam.

In tbeir complaint, tbe plaintiffs allege tbat they are the owners of a tract of land in Burke County containing 60% acres, more or less, and that a small stream or natural water course flows through several acres of the lowlands and runs into Upper Creek, and that Upper Creek empties into Catawba Eiver. They allege that the defendant in 1925 constructed a dam across Catawba Eiver and has since operated a hydro-electric plant for the purpose of manufacturing and selling electricity; that in consequence of the construction of the dam the water has been ponded upon the land of the plaintiffs, which has thereby been permanently injured. They demand judgment against the defendant for actual and permanent damages done to their premises and for such other relief as they may be entitled to. The defendant filed an answer denying the material allegations of the complaint and alleged that it is authorized by its charter to construct and maintain a dam or dams upon Catawba Eiver. It pleaded the right of eminent domain under the laws of the State, requested that plaintiff’s damages, if any, be permanently assessed, and demanded that upon payment of such damages it be given the right, privilege and easement to continue the maintenance and operation of its plant as it is now located and constructed.

The court submitted the following issue: “What permanent damages, if any, are the plaintiffs entitled to recover .of the defendant for and on account of the construction, maintenance and operation of the dam of the defendant at Ehodhiss?” The issue was answered in favor of the plaintiffs and their damages were assessed. Judgment was rendered upon the verdict for the amount of their recovery and it was adjudged ■that satisfaction of the judgment should transfer, convey to, and vest in the defendant, its successors and assigns, the right, privilege, and easement to continue the maintenance and operation of its dam and plant at or near Ehodhiss as now located and constructed. To the judgment awarded the defendant excepted and appealed therefrom to the Supreme Court.

*813We have considered tbe exceptions argued orally and in tbe appellant’s brief and bave concluded tbat tbey do not present any sufficient ground for granting a new trial. Several of tbe exceptions were abandoned on tbe argument and we are of opinion tbat those wbicb were relied upon do not, in view of tbe defendant’s answer, tbe charge to tbe jury, tbe verdict, and tbe judgment, entitle tbe defendant to another bearing. We find

No error.