#### H. GRADY SINK and Wife, STELLA SINK, v. THE CITY OF LEXINGTON and LEXINGTON UTILITY COMMISSION, Consisting of B. C. PHILPOT, Chairman, C. M. PEELER, Secretary, and R. B. ROBBINS, Treasurer.

(Filed 14 December, 1938.)

1. Evidence § 28—

A fact may be proved by circumstantial evidence.

2. Municipal Corporations § 15: Waters and Water Courses § 2 — Evidence held for jury on question of infringement of riparian rights.

The male plaintiff testified to the effect that prior to the construction of defendant municipality’s water system dam, his property was valuable farm land, that after the construction of the dam water backed up in a . stream draining plaintiff’s land so that it did not drain the land as before, resulting in the deposit of quantities of silt, and that his drainage ditches that were several feet deep where they emptied into the stream fill with water to about the top, and that the land had become wet and soggy and ruined for agricultural purposes. Seld: The evidence is sufficient to be submitted to the jury on the question of defendant municipality’s wrongful operation of the dam resulting in an invasion of plaintiffs’ riparian right to have the stream flow past the land in its natural quantity and in its accustomed channel subject to the rights of other proprietors to a reasonable use of the water.

Appeal by plaintiffs from Olive, Special Judge, at Special April Term, 1938, of DavidsON.

Reversed.

*549Tbis is an action brought by plaintiffs against defendants for damages for injury to plaintiffs’ land by rendering it unfit for cultivation.

Tbe plaintiff H. Grady Sink (busband of Stella Sink) owns about 65.T5 acres of land and a borne tbereon in Davidson County, N. 0. Tbe defendants City of Lexington and Lexington Utility Commission (see cb. 22, Private Laws of 1935), under legislative powers, maintains a water system and furnishes tbe inhabitants of tbe city of Lexington with water for pay. During tbe latter part of 1935 and tbe first part of 1936 tbe defendants constructed a dam across Leonard’s Creek and impounded tbe waters therein, which said impounded waters cover approximately 65 acres of its land. Tbe back water of tbe lake reaches to within 600 feet of plaintiffs’ land, which is above tbe lake — 10.6 acres of plaintiffs’ corn and meadow land, etc., it is alleged by plaintiffs is destroyed for farming purposes.

Grady Sink, tbe plaintiff, testified, in part: “I cultivated about two or two and a half acres of that land in corn previous to tbe building of tbe dam, and mowed around 6 or 6% in bay, and pastured tbe rest of it. That bottom in reference to fertility for bay and other crops was as good as you could find anywhere. I think I grew as good corn there as anybody ever grew on land, and my meadow was good, and I bad good crops every year. I never missed mowing two crops of bay off of it since I have bad it until since tbe lake has been impounded. . . . Just previous to tbe building of tbe dam I would say I raised 70 to 75 bushels of corn per aere. I would assume tbe average bay crop there just previous to tbe building of tbe dam, in tbe bottom to be something like four tons to tbe acre — be two tons a crop. I cut that bay twice per year. With reference to tbe difference in tbe condition of my bottom land now and just previous to tbe building of tbis dam by tbe city, at that time I could mow every foot of it and cultivate it, and at tbe present time it is impossible to do it. As to bow it is now, all tbis that has been pointed out here is standing in water, lots of it knee deep, and tbe rest of it you would mire down in it if you would get out in it. It has always been so it could easily be drained of water, have never known it to be otherwise, except since tbe water has been impounded in tbe lake, and at tbe present time you cannot do it. Tbe water is too high to drain it. I quit cultivating my bottom, on account of tbe condition of tbe water being in there that I have just described, last year. Tbe fall crop was tbe last crop, tbe fall of 1937. ... I would say tbe difference in tbe depth of tbe creek in tbe middle of my bottom now and immediately before tbe dam was built is about 2% feet. With reference to tbe depth of tbe creek as it comes through tbe southern portion of my land now as compared with immediately before tbe dam was built, I think as much as 3% feet piled up there. . . . As to tbe condition of that land now *550as compared with immediately before the dam was built, it is much wetter than it was — soggy and wet. There are no ditches on it. Before the dam was built it was naturally dry there. My ditches leading across my property into Leonard’s Creek immediately before the dam was built, right at the creek were 5 feet deep. With reference to where the ditches were that were 5 feet deep that came into Leonard’s Creek, this ditch here (indicating) came all the way right in around here, and right into the creek; and right down at the creek when it was cleaned out you could just barely see out of it. That is the way it was, and now it is filled up to the top just about. The blind ditches, the water is covered up over them now, and used to they would drain the water from back up in there and they can’t now. The sand and silt has filled up a whole lot. When the water from Leonard’s Creek that drains through my place hits the back waters of the lake, it naturally stops, and the silt and sand stops, too. It continually fills up. It keeps just piling up on top of it.”

Notice of claim was duly presented to the city of Lexington (ch. 10, Private Laws 1933). The plaintiffs introduced several witnesses who corroborated II. Grady Sink’s testimony. The defendants denied liability. Judgment of nonsuit was rendered for defendants and plaintiffs excepted, assigned error and appealed to the Supreme Court.

jDon A. Walser and J. F. Spruill for plaintiffs.

P. V. Critcher and Phillips ■& Bower for defendants.

ClauksoN, J.

At the close of plaintiffs’ evidence, the defendants made a motion in the court below for judgment as in case of nonsuit (C. S., 567). The motion was granted and in this we think there was error. We think the evidence was sufficient to be submitted to the jury. It is well settled that a fact can be proved by direct and circumstantial evidence.

In Smith v. Morganton, 187 N. C., 801 (802-3), it is said: “Earnham says that a comprehensive statement of the rights of a riparian owner is that he has a right to have the stream remain in place and to flow as nature directs, and to make such use of the flowing water as he can make without materially interfering with the equal rights of the owners above and below him on the stream. Furthermore, the right to have a natural water course continue its physical existence upon one’s property is as much property as is the right to have the hills and forests remain in place, and while there is no property right in any particular particle of water or in all of them put together, a riparian proprietor has the right of their flow past his lands for ordinary domestic, manufacturing, and other lawful purposes, without injurious or prejudicial interference by an upper proprietor. Waters and Water Eights, secs. 461, 462. This *551doctrine finds support in our decisions which hold that a riparian proprietor is entitled to the natural flow of a stream running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as may be occasioned by the reasonable use of the water by other like proprietors,” citing numerous authorities.

We think Teseneer v. Mills Co., 209 N. C., 615, similar to the present case, nor is Dunlap v. Light Co., 212 N. C., 814, contrary.

For the reasons given, the judgment of the court below is

Eeversed.