#### JOHN G. BURWELL et al. vs. WYATT CANNADAY.

In an action by petition to recover damages for the overflow of land by ponding water, it is not competent to use the record of a former proceeding, wherein damages were recovered for the same thing, either as an estoppel, or to establish the wrong in any way.

The second jury, in such a case, must pass upon the whole matter, in as full and free a manner as the former'.

PETrnoN for damages against the 'owner of a mill, for ponding water and overflowing plaintiff’s land, and obstructing his mill-wheel, tried before his Honor, Judge Caldwell, at the Spring Term, 1855, of Franklin Superior Court.

In 1830, Lewis Taylor owned a mill on Fishing Creek, which flows into Tar River; at the same time, he and one Paschal, owned a mill on Tar River, below the mouth of Fishing Creek, and a little short of two miles from the other, which, in that year, 1830, they sold to defendant, Cannaday. *166Early in 1834, the defendant took down his dam and rebuilt it, making it higher than it had been.

In 1835, Taylor filed a petition in Granville County Court, against the defendant, under the Act of Assembly, claiming damages for ponding back the water upon his land and waterwheel, by means of this new erection; and in the Superior Court, to which it was taken by appeal, recovered an annual damage of twenty dollars.

Taylor conveyed the mill on Fishing Creek to the plaintiffs, (Burwell and Eaton,) aaJlo, in May, 1852, filed a petition for damages for ponding the water back into Fishing Creek, by means of his dam on Tar Eivor, and thus overflowing their land and obstructing their mill-Avheel. The cause was carried by appeal to the Superior Court of Granville, and thence removed, on affidavit, to the Superior Court of Franklin. On the trial, in that Court, there Avas proof, that in the year, 1851, the defendant raised his dam still higher than it was in 1834. The plaintiffs offered in evidence the record of the Superior Court of Granville, shoAving the recovery of damages by Lewis Taylor against the present defendant, and insisted, that if the Avater Avas raised by the dam of 1851, as high as it Avas by the dam of 1834, the defendant Avas estopped to deny that it was a Avrongful act thus to raise it in 1851, and was liable, unless he coidd show a license therefor.

The introduction of this record was objected to by the defendant, Avho insisted, that it was not admissible either as an estoppel, or as proof in any way.

But his Honor was of opinion, that this record Avas admissible, “ to sIioav the fact, that the dam of 1834, was so high as Avrongfully to pond the water on Taylor, the assignor of the plaintiffs; and the jury were alloAAed to infer from this fact, thus established, that the dam of 1851 Avas raised too high, if they should find that it was as high as' the dam of 1834.” To this instruction the defendant excepted.

Yerdict for the plaintiffs. Judgment and appeal.

Moore, for plaintiffs.

J,ewis and Graham, for defendant.

*167Pearson, J.

Had the plaintiff in 1834, in an action on the case for overflowing land, &c., on the plea of “ not guilty,” obtained a verdict and judgment for damages against the defendant, and afterwards, in 1851, brought a second action on the case for overflowing his land, &c., it is settled, that the verdict and judgment in the first' action, is inadmissible as evidence, and cannot be pleaded as an estoppel in the second action. Bennet v. Holmes, 1 Dev. and Bat. 486; Long v. Baugus, 2 Ire. 292; Rogers v. Ratcliff, decided at this term. In those cases, the subject is fully discussed, and the argument is exhausted. Such being the rule, in regard to a verdict and judgment in a former action on the case, upon the plea of the general issue, of course the like rule must apply in regard to a verdict and judgment in a proceeding by petition under the statute, which is summary, and is designed as a substitute for the action on the case. Indeed, the statute enacts that the judgment shall have force and effect for the term of five years in certain cases, after which, the matter stands in statu quo, and the parties may commence de novo. So that the first proceeding is not conclusive, and fixes nothing. Dio rights of the parties, and the condition of tilings at the commencement of the second proceeding being open questions.

In our case, his Honor allowed the defendant to be trammelled, and bound to some extent, by the proceeding in 1834; in this manner: it is established that, in 1834, the dam was too high; the dam in 1851, is as high as it was in 1834; ergo, it is too high in 1851. It will be remarked, that the minor premise is not established by the record, but must be proven by the testimony of witnesses, and matters de hors ; so, it is not conclusive as evidence, and cannot be pleaded as an estoppel ; and consequently, it must be passed on by the jury in the second case. This being so, there is no authority, or reason, why the second jury should not pass upon the whole matter, in as full and free a manner as was done by the first jury.

Per Curiam,

Venire de novo.