#### HENRY M. SHAW vs. THOMAS J. ETHERIDGE.

Whore the owner of a tract of land upon which there is a ditch, sells the upper part, including a portion of the ditch, he has no right to stop up, or obstruct, even partially, the ditch below, so as to throw the water back upon the other part.

*301And this is so whether the ditch was originally made to drain this upper part of the tract or nofrpfor if it actually answered that purpose, -the purchaser was entitled to the unmolested use of it.

It was error in the Court to instruct the jury in the above mentioned case, that they might give damages accruing after the issuing- of the writ down to the time of the trial. (Case of Moore v. Love, 3 Jones’ Rep. 215, cited and approved.)

This was an action of trespass on the case, tried before his Honor, Judge Manly, at the Spring Term, 1856, of Currituck Superior Court.

The action was brought for obstructing a ditch which traversed the land of the plaintiff and passed through a part of the land of the defendant. Both these parcels of land had belonged to tbe defendant until the 9th of November, 1853, when he conveyed to plaintiff the part now in question, which was the upper part of the same. Previously to this conveyance, to wit, in September of that year, the defendant had cut the ditch in question.

It was in evidence, that the ditch was obstructed; but whether this was done before or after tbe sale to plaintiff, was left in doubt by the testimony, there being conflicting evidence as to that fact.

It -was insisted in behalf of the plaintiff, that he was entitled to damages if the obstructions had been put into the ditch by the defendant after the sale,.or if a part of it had been made before, and added to after that time, by him.

In behalf of the defendant it was contended, that he had a right to obstruct tbe ditch after the sale. He also contended, that it was not proved that lie had placed the obstruction complained of, in the ditch, after the sale.

The Court was of opinion with the plaintiff upon the matter of law suggested in the defense, and charged the jury that if the defendant placed the obstruction complained of, in the ditch, after he sold it to the plaintiff, or if additional obstructions were placed in it so as to impede tbe flow of water from the plaintiff’s land, he was entitled to damages, and -directed the jury to give such as they thought commensurate with the *302injury produced by the acts of the defendant to the crop and land of the plaintiff.

The Court further charged the jury that in estimating the damages they might take into account the injury done since the writ, down to the trial, provided such injury flowed from acts of the defendant done before the bringing of the action, and which continued in tlieir effects up to the present time.

It was controverted between the parties, whether the ditch was cut by the defendant for the purpose of draining the land which he afterwards sold to the plaintiff, but the Court expressed the opinion that it made no difference what was the view with which the ditch was originally cut, if it served as a drain to plaintiff’s land. To these instructions defendant excepted.

Verdict for plaintiff. Judgment and' appeal by defendant.

No counsel appeared for plaintiff in this Court

Jordan, for defendant.

Battle, J.

We do not discover any error in the charge of his Honor except in relation to the question of damages. Upon the facts as they are stated in the bill of exceptions, his Honor was justified in instructing the jury that they might find for the plaintiff. The case of Hazard v. Robinson, 3 Mason’s Rep. 236, relied upon by the plaintiff’s counsel, is directly in point for him, and the force of it is not at all weakened by the authorities referred to on the part of the defendant.

But the charge of the Court “ that in estimating the damages, the jury might take into account the injury done since the writ, down to the trial, provided such injury flowed from the acts of defendant done before the bringing of the action, and which continued in their effects to the present time,” we hold to be erroneous. It is in direct conflict with the case of Moore v. Love, decided at the last term, and reported, ante 215, but not published until since the trial of this cause. For *303the reasons which are fully stated in that case, and which, therefore, need not be repeated here, we must reverse the judgment and grant a venire de novo,

Per Curiam.

Judgment reversed.