#### JACOB KIMEL vs. ANDREW KIMEL et. al.

In an enquiry of damages arising from the ponding of 'water upon land, the plaintiff has a right to have the question submitted to the jury, whether the overflowing complained of was, during the time alleged, injurious; and any former benefits the land may have received from such overflowing, had nothing to do with the question.

PetitioN for damages for ponding water upon plaintiff’s land, tried before Peeson, J., at tbe Fall Term, 1856, of Davidson Superior Court.

Th,e defendants were tbe owners of a mill, on Muddy Creek, and. the plaintiff owned a tract of land on the same stream, a short distance above the mill.

The mill was'built in 1843, and one Fisher then owned the land alleged to be injured, who, about the first of the year, 1853, sold it to the plaintiff. At the time of this sale, and during the year 1853, it was proved that a certain bottom belonging to the land was injured by the water of the defendants’ mill-pond, and rendered thereby less productive than it would have been if the dam had been taken away.

For the defendants it was proved, that, in the year 1843, when the, dam in question was erected, this bottom had several ponds on it of considerable size, which always held water, and that its general surface had been much lower than it was in 1853 ; that between the building of the mill, in 1843, and the date of the plaintiff’s purchase, these ponds had been filled up, and the surface of this bottom elevated by the stagnation of the water of a small creek which formerly had run through it with a swift current; but by the backing of the water, and the frequent overflowing of this creek and of the mill-pond, an accumulation of sediment had taken place, and had thus raised the surface considerably higher and had filled up the ponds, and that this land, which had been worth from five to ten dollars per acre had been increased in value tó from thirty to forty dollars per acre.

The plaintiff’s counsel requested his' Honor to instruct the *122jury that, taking it for granted that the erection of the mill-dam had benefited the land before the plaintiff became the owner of it, yet, that he had a right to the full enjoyment as it was when he bought it; and if the jury should believe that it was less valuable or productive as it was, than it would be if the dam was removed, the plaintiff would be entitled to damages. The Court refused to give such instructions, and the plaintiff excepted.

Verdict and judgment for defendants, and appeal by the plaintiff.

Miller, Morehead and Gorrell, for plaintiff.

No counsel for defendants.

Battle, J.

At common law, the injury caused by the erection of a dam across a running stream, and ponding the water back upon the land of a proprietor above, was redressed by an action on the case. If the dam were continued, the action might be brought from time to time, until the defendants were compelled, by multiplication of the damages and costs, to remove the nuisance. It is certain that any incidental advantages that might accrue to the land overflowed from the continuance of the dam, would not defeat the action, however they might lessen the damages. If one person should, against the will of another, cart manure upon his field, the latter could recover damages for the trespass, although the field might be benefitted by the manure, and he might recover, at least, nominal damages from year to year, should the trespass be repeated, although the land might be made rich by the operation. The Act of 1809, embraced in the Revised Statutes, ch. 74, sec. 9, et seq., (Rev. Code, ch. 71, sec. 8, et seq.^j which was passed in favor of mill owners, altered the remedy so far as the mode of proceeding to recover the damages and costs was concerned, but did not affect the principle of the right of action except in one particular: in the 15th section of the act, as contained in the Revised Statutes, (sec. 14, Rev. Code,) it is declared “ that if the verdict of the jury be that the pe*123titioner lias sustained no damage, then be shall pay the costs of the petition, &c.” At common law be would have been entitled to a penny, at least, for it is assumed that the water was thrown upon his land by the dam of the defendants.

In the present case the instruction prayed on behalf of the petitipner, and refused by the Court, was founded upon the supposition that the defendants’ dam was then doing some injury to his (petitioner’s) land, as the water was ponded back upon it. We think that he had the right to have the question, whether, in fact, the land was then injured or not, passed upon by the jury. The inquiry whether his land had previously been improved in value by a nuisance, to the continuance of which neither he nor his vendor had ever assented, had nothing to do with his right of action at that time. The jury might, indeed, have found that he had not sustained any damage during the period to which his suit referred, and in that case he would have had to pay the costs of his petition; but he had the right to have the opinion of the jury upon that question, and we think his Honor erred in depriving him of it.

The judgment is reversed and a venvre de novo awarded.

Pee Cueiam. Judgment reversed.