#### JAMES D. BRIDGERS vs. MALCOLM PURCELL & al.

Where a petition, under the Acts of Assembly relating to damages sustained by the erection of public watermills, alleged “ that by the erection of the mill 30 or 40 acres of his land were overflowed, and that by the said overflowing, the healthfulness of his plantation on which he resides is greatly deteriorated, the overflowing extending to within 300 yards of his dwelling house,” the plaintiff is only entitled to recover damages for the injury done by inundating his own lands, not for an injury to the health of his family by other parts of the mill pond.— The plaintiff must state in his petition in iuhat respect he was injured, and his proofs cannot go beyond his allegations.

The proceedings under such a petition being in a' court of law, where viva voce testimony is always preferred, the party has a right to have the attendance of bis witnesses taxed in the bill of costs.

The jury having assessed in this case but one dollar damages, the court did right in giving the plaintiff no more costs than damages under the act of 1833.

This was a petition, filed* at May Term, 1834, of Robeson County Court, by the plaintiff, to recover damages for injuries, which he alleged he had sustained by the erection of a water mill by the defendants,. the proceeding being under the acts of Assembly giving a remedy by petition to those, who had been injured by the erection of a mill. The injury complained of was “ that thirty or forty acres of the plaintiff’s land were overflowed; that by the said overflowing, the plaintiff was not only deprived of the 30 or 40 acres so inundated, but that the healthiness of his plantation, on *233which he resided, was greatly deteriorated thereby.” The case was tried in the County Court, and thence there was J an appeal to the Superior Gourt. A verdict and judgment were here rendered in favor of the plaintiff, from which he, being dissatisfied, appealed to the Supreme Court, where a new trial was granted at June Term, 1836, (see 1 Dev. & Bat. Rep. 492.) It again came on for trial at Robeson Su_ perior Court, Fall Term, 1840, before his honor Judge Settle. On the trial, the defendant’s coimsel requested the judge to charge the jury, that although they might be satisfied that the defendant’s pond overflowed a portion of the plaintiff’s land, and the effect of the whole pond had been injurious to the health of the plaintiff and his family, yet that the plaintiff could recover for only that portion of injury to his health and that of his family, which resulted from overflowing his own land. The'' plaintiff’s counsel then interposed and requested his honor to' charge, that if the jury should assess any damages for overflowing the plaintiff’s land, and should think that the effect of the defendant’s pond as a whole was injurious to the health of the plaintiff and his family, they should assess damages for the whole amount of such injury. His honor declined adopting the suggestion of either counsel, but told the jury if they were satisfied by the testimony, that the defendant, by the erection of his mill-dam, or by continuing it after he became the owner of the mill, although the dam had been erected by one under whom he claimed, had inundated any part of the plaintiff’s land, that the plaintiff was entitled to recover such damages as they thought he had sustained by having his land inundated. And if they thought that the defendant, by so covering the land of the plaintiff, had rendered his plantation unhealthy or uncomfortable, they should give the plaintiff damages for that injury.

The jury found a verdict for the plaintiff, and assessed his damages at one dollar a year for five years.

A new trial on account of misdirection by the court was moved for and refused..

The defendant then moved, first that in the taxation of costs, the plaintiff should not be allowed for the personal at*234tendance of his witnesses, as, the proceeding being by petition, his testimony should have been presented on paper or by depositions, which motion was overruled. The defendant then moved that the plaintiff, in the taxation of costs, be allowed no more costs than damages, which was accordingly directed by the court; and that, as to the balance of the costs, each party should pay his own costs. Judgment havIn been rendered according to the finding of the jury, and the opinion of the court as to the costs, the plaintiff appealed to the Supreme Court.

Strange for the plaintiff.

No counsel appeared for defendant.

Daniel, Judge.

The act of Assembly requires, in cases of this kind, that the plaintiff should set forth in his petition “in what respect he is injured by the erection of said mill.” This petition states the plaintiff’s injury as follows: “ By reason of the erection and continuance of said mill by defendant, about thirty or forty acres of land, belonging to your petitioner, are inundated and overflowed with water; that by the said overflowing your petitioner is not only deprived of the thirty or forty acres so inundated, but that the healthiness of his plantation, on which he resides, is greatly deteriorated thereby, the overflowing extending to within 300 yards of his dwelling house.” On the trial, the plaintiff’s counsel prayed the court to charge the jury, that in assessing damages for overflowing the plaintiff’s land, if the effect of the defendant’s mill pond as a whole was injurious to the health-of the plaintiff or his family, they should assess their damages for the whole amount of such injury. The Judge declined to instruct.the jury as- prayed for; but he charged them thus: “ that, if the defendant’s miLl pond had inundated any part of the petitioner’s lands, he was entitled to recover such damages as he had sustained by having his lands inundated, and that, if they thought the defendant by so covering the land of the petitioner, had rendered his plantation unhealthy or. uncomfortable, they should give him damages for that injury.” We are now asked whether this charge was correct. We answer, in our opinion it was not *235erroneous. We think that the plaintiff had no right to demand damages for injuries, of which he had not stated in ° J ' his petition, “ in what respect they had arisen.” His probata should correspond with his allegata; and his damages should be- the result of that correspondence. It is unnecessary to say, whether the prayer of the plaintiff’s counsel should or should not have been complied with, if his petition had contained an allegation, sufficiently .broad to have embraced evidence of an injury of such a description as that spoken of.

Secondly, the defendant insisted that the tickets of the plaintiff’s witnesses should not be taxed in the bill of costs: he said that the testimony should have been taken by way of depositions. We think that the objection was correctly overruled. The proceedings were at law, where viva voce testimony is never dispensed with if it can be obtained.

Thirdly,' the jury assessed the plaintiff’s damages to one dollar. The court, in rendering judgment, gave the plaintiff no more costs than damages, This we thing was right and proper by force of the act of Assembly, passed; in 1833. The petition was filed at May sessions, 18-34. The Legislature, at its session of 1834, passed án' act amending the act of 1833; but it was done to obviate a supposed difficulty, which might arise on the construction ol the first act. We are of the opinion, however, that the intention of the Legislature in 1833 is fairly- to be seen from that act, 'that if the plaintiff should fail to recover five dollars damages, he should have no more costs than damages. Upon the whole case, therefore, we are of the opinion that the judgment must be affirmed.

Per Curiam. Judgment of the guperior Court affirmed.