#### THOMAS M. CARTER vs. MATTHEW PAGE.

Where A. and Bi, owning lands adjoining, agreed that B, might cut ditches on A’s land, which were useful both to A. and B, and they should be dug, under thejdirection of A. and until he was satisfied, and when the ditches were accordingly so dug by B. and used and enjoyed by him during A’s lifetime and for three years afterwards without complaint; Held that allho’ the license to use the ditches on A’s land expired on A’s death, and the person succeeding to his title might fill up these ditches, if he thought proper to do so, yet he could not sue B. for a nuisance, especially without a rea- . sonable notice to discontinue the use of the ditches.

The case of Bridges v Purcell, 1 Dev. Bat. 492, cited and approved.

■ Appeal from the Superior Court of Law of Chowan County, at Spring Term 1844, his Honor Judge Bailey presiding.

This was an action on the case, brought to recover damages alleged to have been sustained by the plaintiff, in injuring his crops in the years 1841 and 1842, by the water which the defendant caused to flow from his lands upon the lands of the plaintiff, and also for damage done to the crops *425of the plaintiff by the stock of the neighborhood, which it was alleged, entered the fields of the plaintiff at openings made by the ditches hereinafter mentioned, cut by the defendant.

The plaintiff proved that he took possession of the lands, alleged to be injured by the water from the defendant’s land, in January 1841 immediately after he purchased; and continued therein cultivating the same up to the time when this suit was instituted: that Charles Haughton was the former owner : that by his will he authorized the sale of his land by his executor, who sold it in January 1841 to the plaintiff. He then shewed that the defendant’s farm lay to the west of the plaintiff’s, and was separated from the plain tiff’s by a public road: that the water from a large part of the defendant’s land is drained to the road, where it is receivedby two large ditches, one ofwhich runs through thejcleared land of the plaintiff, and the other, after running on the defendant’s land, for about four hundred yards, then varies its direction so that it runs on the plaintiff’s land, until it unites with the ditch first mentioned ; and, below this intersection, a ditch twenty five feet wide is continued, in an eastwardly direction through the plaintiff’s cleared land. The plaintiff then proved the injury done to his crops, in the years 1841 and 1842, by the water drained by the defendant from his land into and through these ditches; and that his crops for those years were injured by the hogs of theyreighborhood getting into his fields at the termini of the ditches.

The defendant then proved by his overseer, that Charles Haughton, the former owner of the plaintiff’s land, died in November or December 1839: that in the Spring previous to his death, the witness with the defendant’s hands cut the ditch first mentioned fifteen feet wide, and the other ditch, from the point at which it enters the plaintiffs land to the point of intersection twelve feet wide, and thence a ditch twenty five feet wide in an eastwardly direction to a few yards beyond the cleared land of the said Haughton, now belonging to the plaintiff: that all three of the said, ditches *426were cut with the assent and under the direction of the said Haughton, and, when completed, he expressed his satisfac-tion with them and said he had no doubt his land would produce better than it ever had done; but that, if he required it, the defendant was bound to widen them, and cut[the twenty five feet ditch still further in an eastwardly direction, down the swamp. This witness stated, that, shortly after the plaintiff purchased the land, the defendant, through the witness, applied to him for the purpose of clearing out those ditches ; to which the plaintiff replied, that, as to the twelve foot ditch, he would not consent that it should be done, and, as to the other ditch, he would neither give nor withhold his consent, as he did not know his rights relative thereto. Much evidence was introduced on both sides as to the necessity of extending the twenty five foot ditch, to protect the plaintiff’s land from inundation after heavy rains, and as to the damages sustained by the plaintiff; some of the witnesses stating that the plaintiff was injured to a considerable amount, and others that the ditches were a benefit rather than an injury, to the plaintiff’s land. The plaintiff then proved, that Charles Haughton, in his lifetime, complained of the injury that his crops sustained by the water from the defendant’s land, and that in 1838, to protect himself against it, he stopped one of these ditches, which were then much smaller, and had not been widened &c. by the defendant’s overseer, as above mentioned. A witness proved a conversation between Haughton and the defendant, shortly after the stopping of this ditch, in which Haughton offered to remove the obstruction, provided the defendant would cut the ditches, so as to protect his land from the injury, which he alleged it sustained by the water, which came down the ditch from the defendant’s land; in which conversation the witness understood the defendant to say, he did not object to the ditch remaining closed, as he could drain his land in another direction. It was also in evidence, that a heavy rain fell, while the ditch was closed, and a considerable portion of the defendant’s farm was in consequence flooded. It was then *427proved, that, in 1839, the said Haughton and the defendant came to an understanding about these ditches, by which the defendant agreed to cut the ditches as Haughton might direct and until he was satisfied; that after they had been cut by the defendant’s overseer, as herein before described, Haughton said he was satisfied; but if they did not drain the defendant’s land, and protect his, Haughton’s, from inundation, he should require the defendant to cut them still further. The plaintiff then offered to shew by a witness, that Haugh-ton, in his lifetime, expressed to him his dissatisfaction with the said ditches, after they were so cut. The defendant objected to this evidence, as the fact was not communicated to" him. The Judge admitted the testimony; whereupon the witness stated, that Haughton did express his dissatisfaction to him, but there was no evidence to shew, that this dissatisfaction was ever communicated to the defendant. It was in ev-, idence, that, after Haughton’s death, his executor cultivated the farm one year, and the ditches remained as at his death.

The defendant contended, that, as these ditches were cut by him, with the assent -of Haughton, the former owner of the land alleged to be injured, before any action could be maintained by the present plaintiff against the defendant, he should give notice to the defendant to discontinue the drain through his land.

His HonoR. instructed the jury, that the contract, if any had been proved, by which Charles Haughton granted to the defendant the privilege of draining his water through these ditches, was merely a personal contract and did not pass with the land to the plaintiff; and that such a contract would be binding between the parties and their personal representatives only, if binding at all; that the evidence proved a license only, from Haughton to the defendant, to drain through Haughton’s land, which. license authorized the defendant so to drain, until notice of discontinuance, or until the death of either party, which of itself worked a revocation of the licence; but, as between the plaintiff and the present defendant, the licence would not authorize the defend*428ant to continue so to drain, nor make it incumbent on the a-intifT to give notice of discontinuance; and if the plaintiff had sustained damages by reason of the defendant’s so continuing to drain, after the plaintiff’s possession of the land, and by the stock getting in as stated, then he was entitled to recover.

The jury returned a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.

*1. Moore & Iredell for the plaiutiff,

cited Bridges v Pur-cel, 1 Dev. & Bat. 492; Hewlins v Shipman, 11 Com. Law. Rep. 207; and Gale and Wheetley’s Law of Easements» pages 12, 31.

Heath for the defendant

cited Chit. Geni. Practice, 570. Roscoe’s Civil Evid. 268.

Nash, J.

The Eastern part of our State contains a large body of land, called swamp lands, which, as its name imports, lies very low, and is without valúe, unless drained. After the superfluous water, however, is removed, it is exceedingly fertile and valuable, being nearly inexhaus-table by cultivation. It is therefore, obviously, the interest of each individual land-holder to have his land drained, as thereby its value in market, and as a productive fund, is greatly enhanced.' But it often, if not most frequently occurs, that the land of one man cannot be drained, without carrying the ditches through that of another. To this he may not be disposed to accede, as however certain it might be that the draining the land will contribute to the interest of all, he may not think it necessary that his land should be b.urthened with the works for that purpose. Such, however, are the extent and value of those lands, that it is a matter of national concern, they should be reclaimed. By so doing, the healthiness of the surrounding country is ultimately improved, the productive resources of the State enlarged, and its ability to support and sustain an increased population added to. Accordingly we find that as early as .the year 1795, *429the subject was brought to the notice of the Legislature, and they passed an act, taking from individuals, not only the power to refuse the privilege of draining through their lands, but the power of afterwards disturbing the owner of the drains, in their possession,, and use of them. For the law declares, that where the petetiti-oner shall have paid the assessed value of the land, “he or they, their heirs and assigns shall thereafter be vested with a good and sufficient title, in fee for the land petitioned for. “Rev. Stat. ch .40, sec. 1.

This act shews how deeply the public interest is concerned on the subject. The owner is not only compelled to suffer the ditches to be dug through his land, but the land itself, so far as is necessary to the running of the ditches, is taken from him and transferred to another — an act, on the part of the Legislature, allowable only in cases, where the public interest demands it. This act, however, does not take from the parties the power to make their own agreement as to the matter, and, when they do so agree, the person entering and digging the ditches, is no more a trespasser in the one case than in the other. The difference between them, in its effects, is, that, in the one case, the interest acquired is permanent and indefeasible; in the other, its permanence depends upon the contract of the parties and the mode of evidencing that contract. If it be in parol, it is but a ñcenee, subject to be revoked by the grantor when he pleases, and by his death the licence is revoked. In this case the land of the defendant lies adjacent to and above that of the plaintiff, in the County of Chowan, and is swamp land, and the water naturally runs from the former on to the latter. In order to its successful cultivation, it requires to be drained. The public road divides the possessions of the parties. Charles Haugh-ton formerly owned the land, now the property of the plaintiff. At what time and by whom the ditches were originally dug the case does not disclose, but they were there in the Spring1 of ’38, though smaller than now.

In that Spring Charles Haughton stopped up one of the ditches, which was on his own land, and after doing so pro»*430posed to the defendant to re-open it, if he would cut and o-pen all the ditches, so as to protect his land from the injury which the water running from defendant’s land on to his, oc-casioned. This proposition was declined by the defendant, on the ground, that he could drain his land, in another direction. After this, the parties did come to an understanding on the matter; and it was agreed, that the defendant should cut all his ditches, that were required, as well on his own land as on Haughton’s, and they were to be dug ■under his, Haughton’s, direction, and until he was satisfied; and-they were so dug in the Spring of ’39, and Haughton declared himself satisfied and that he had no doubt, his land would produce more abundantly than ever it did. In the Fall of that year, Haughton died, and his overseer cultivated the land until Jan. ’41, when it was sold to the plaintiff, who took immediate possession. The writ issued in March ’43. Four years, then, after the ditches were dug, elapsed, before the suit was commenced, and during that time the defendant is not apprized, as far as the case discloses, Of any dissatisfaction, on the part of the former or present owner; and without any such notice or request to abate the nuisance, he is sued. The question submitted to us is, whether, under such circumstances, the plaintiff can maintain this action. "We are decidedly of opinion he cannot; that it would be unreasonable and unjust to permit it. From the case as sent to us, we consider Haughton as the person who dug the ditches. They were by agreement dug, as he directed and under his direction, for the mutual benefit of the parties. If, after being finished,, they did not sufficiently drain the defendant’s land and protect his, Hanghton’s, from inundation, the defendant, under the direction of Haughton, was to have-them cutfarther, so that the whole control of the matter was with him. The right, thus acquired by the defendant, to drain his land through the ditches of Haughton, and over his land, was but a licence, subject to the control of Haughton, and he might at any moment, have withdrawn the licence,- and debarred the defendant from any further use of his ditches, and he- *431might at any moment he pleased, have filled them up, 1 Chit. Gen. Prac. 339 His death operated the same effect: it was in law a revocation of the licence, to use the ditches through Haughton’s land, and the present plaintiff mig h* have filled them up, if he had so pleased.

This action is brought against the defendant for the injury, which, it is alleged, the ditches on his own land do to that of the plaintiff. . They were dug substantially by Haughton, under whom the plaintiff claims and in whose shoes, pro hac vice, he must stand. As Haughton himself could not have sued Page for an injury resulting from ditches dug by himself, without any additional act done by the defendant, so neither can Carter. Page may have no right to clean the ditches, but is not bound to fill them up. The case of Bridges v Purcell, 1 Dev. & Bat. 492, has been pressed upon us as decisive of this. We do not think so.

That was a petition^ under the act of Assembly, filed by the plaintiff to recover damages, occasioned to his. lands by the mill pond of the defendant. The defendant relied upon the fact, that the father of the plaintiff, under whom he, the plaintiff, claimed, had given him permission to build the dam and to raise it, as high as was necessary. Under this evidence his Honob, who tried the cause in the Superior Court of Robeson, instructed 'the jury, that the plaintiff was not entitled to the relief he asked for. This Court held the opinion to be erroneous, and ■ the Judge who delivered the opinion, observes, “ To hold that a permission, thus given, shall operate forever to the benefit of the grantee and his assigns, against the grantor and his heirs, would be in effect to permit a fee simple estate to pass under the name of an irrevocable licence,” which certainly cannot be. It was the grant of an'incorporeal heridifament, which cannot pass, but by deed of devise. This case Ave hold to' have been correctly decided, but it is very distinguishable from the present. In that caS'e’the defendant claimed, by parol, a permanent com tinuing right, not indeed in the land itself,- but to a privi-*432ledge on and upon the land of the plaintiff,, impairing, fo> that extent, the dominion of the proprietor. He claimed the exclusive use of so much of the plaintiffs land, as was submerged by the water of the pond, and he was then, under this claim of right, in the daily use of it Here, the. defendant claims-no interest in the ditches on the plaintiff’s land, nor right to use them, nor, as far as the case discloses, has lie ever, since the death of Charles Hanghton, a period of upwards of three years, to the bringing of this action, done any thing not even to the ditches on his own land to clean them out. He has literally done nothing. He had hut a li-cence, which he knew was revoked by the death of the grantor. For these reasons we think the case of Bridges v Purcell does not control this. In that case the latest English authorities on this subject are commented on by Judge Gas-toN, with an ability, which always distinguished his opinions. I refer to them now,-only for the purpose of shewing, what was the understanding of the profession and of the Judges then, upon the subject of notice and a previous demand of the removal of the nuisance, when it has been originally made by the licence of the party, seeking relief on those under whom he claims. The case of Winter against Brockwell, 8 East, 308, and of Liggins against Inge, 20 vol. Eng. C. L. Rep. 227,.are both cases of this kind. In the former, the defendant, by the parol licence of the plaintiff, had put a sky light over his area, which adjoined the house of the plaintiff, whereby the light and air were prevented from entering the house of the plaintiff through his own doors. After the completion of the sky-light, the plaintiff, becoming dissatisfied, recalled his licence and gave the defendant notice to remove it. Lord Ellenborough, who tried the cause, decided that the plaintiff could not recover, because, the sky-light was erected on the defendant’s own premises, and by the permission of the plaintiff, and that it rvould be unreasonable to permit' him to do so, without at least offering to repay the expenses, .which the defendant had incurred. Judge Gaston agrees with Lord Ellenborough in part, *433and says in reference to that case, “ the plaintiff’s conduct was unreasonable, and he ought not to be permitted to insist on the erections being destroyed, without some competí-sation to the defendant for the expense incurred,” but that a Court of Equity could alone ascertain thejcjuantum of expense. The ease from Eng. Com. Law. Rep. is also the case of a parol licence for-an erection or work to be made or done on defendant’s land, and the Court decided, that the plaintiff could not, after the erection was completed, upon notice and request, compel the defendant to remove the erection. The reasoning of Chief Justice TiNDaul, is justly liable to the criticism made on it in the case of Bridges v Purcell. But however fanciful the reasoning may be, the conclusion may still be sound, and it -would be rather difficult to answer some of tae cases -put by him. Upon the point, however, decided in those cases, we give no opinion, as it does not necessarily arise in this. We decide this case upon its own circumstances-; and, in the absence of all authority, we should still so hold, because 'we should think it unjust and und unreasonable, that a party, who gives a li-cence to an individual to do a particular act on his own land, which may prove injurious to him, should withdraw that li-cence, after the thing is done, and insist upon the other party being active to remove the erection and sue him for not doing so, and especially without notice.

The judgment of the Superior Court of Chowan County must be reversed and a venire.de novo awarded.

Per Curiam;, Judgment reversed.