#### Carruther's v. Tillman.

This was an action on the case for a nuisance, and overflowing the lands of the Plaintiff, by erecting a mill-dam ; and evider.ee was given of overflowing about thirty or forty acres of low land, which before the erection was usually overflowed at high water.

Per curiam

Wiihams and Haywood. Justices

This action lies for any overflowing of the Plaintiff’s land, the maxim being, you must so use your own, as not to prejudice another’s properly ; but the action may be con- ' tinned from time to time, del the Defendant, is compelled to abate tho nuisance $ every continuance thereof after apre-*577ceding action, being considered as a new erection — the first action is .regarded as a trial of the question, whether a nuisance ..r no! — therefore it is not proper, in the first instance, to give exemplary damages, but such only as will compensate for actual loss, as killing the timber or overflowing a field, so as to prevent a crop being made upon it, and the like. But where the abating the nui-sanee will restore the lands to the same value, and use as before the nuisance, and no real loss lias been as yet sustained, the damages should he small; but if after this the nuisance should be continued, and a new action brought, then the damages should be so exemplary as to compel an abatement of the nuisance. There was a verdict for the Plaintiff, and six-pence damages.

Note — Vide - v. Deberry, and the note thereto, ante 248.