#### WILLIAM JOHNSTON v. JAMES C. RUDESILL, ET AL.

Evidence. Damages.

This was a petition to recover damages for an injury to the plaintiff’s sawmill, caused by the defendant’s erecting a dam for a mill below, over the same stream, and thereby ponding the water back on the wheels of the plaintiff’s mill. The suit was commenced in Gaston County, and removed to Mecklenburg, where it was tried at the Fall Term of 1853, before his Honor Judge Dick.

On the trial, it was admitted that the plaintiff' was entitled to *511recover, and the only question was the amount of the damages. For the purpose of affecting the question of damages, the defendant offered one Ramsour, a Millwright, as a witness, and proposed to ask him “ if he could not, with an expenditure of five hundred dollars, take the site of the plaintiff’s saw mill, obstructed as it was, and put a saw mill, which would saw one thousand feet per day,” it having been proved before, that when, unobstructed, the plaintiff could saw only about four hundred feet per day. The question was excepted to by the plaintiff, and rejected by the Court. After a verdict for the plaintiff, amotion for a new trial was made, for error in rejecting this testimony, which was refused, and a judgment given, from which the defendant appealed.

JBoyden, for plaintiff.

Guión, Wilson, and Bynum, for defendant.

Battle, J.

We cannot conceive of any principle upon which the testimony offered by the defendant, and rejected by the Court, was admissible for any legitimate purpose, in ascertaining the amount of damages to which the plaintiff is entitled. The plaintiff certainly was not bound to make the improvements in his Saw Mill, suggested by the question which the defendant proposed to put to his witness, Ramsour. And because he declined to erect a more costly, though it might be a more profitable establishment, he did not forfeit his right to recover the actual damages which he had sustained in his more humble mill by the wrongful act of the defendants. •

The judgment must be affirmed.