#### CALVIN JONES v. HENRY T. CLARKE.

In a petition for damages for ponding back water, wliere, in the county court the plaintiff’s right to relief is denied, the proper course is to empannel a jury to try the allegations made in bar of such right, and if such allegations are found for the plaintiff, the proper course is then to order a jury on the premises to assess the damages, but in all cases where there is an appeal to the Superior Court, the facts are to be ascertained by a juiy at bar, but in that court, those pertaining to the question of relief, and those as to that of damages, are to be separately submitted.

This was a petition, filed in the County Court of Edgecombe, for damages for obstructing plaintiff’s ditch or canal, which came to the Superior Court by appeal, and was tried before Saunders, J., at the last Spring Term.

The petitioner alleged that he owned very valuable lands about two and a half miles from Tar river, which was a good deal composed of swamp, and that he owned other qualities of land, all of which required draining, and that when drained, the lands were of great fertility. He further alleged, that the natural flow of the water from these lands is through the land of the defendant into a gut which emjities into the said river; that about thirty years ago, one David Barnes, under whom the plaintiff claims, with the permission of the then proprietors of the land now owned by the defendant, cut a canal from the said lands of the plaintiff through those now owned by the defendant, into the gut above described, and that for more than twenty years, to wit, till the year 1855, he has enjoyed the unobstructed use of the said canal; that in 1855, the defendant, H. T. Clarke, placed a dam across the said gut, and ponded the water back up the said canal, by which the *419discharge of its water was obstructed, and the land which had been drained theretofore, became sobby and of little value. The prayer is for a jury of view to assess the damages on the premises, &c.

The defendant, among other defenses, denies the plaintiff’s right to have a canal on his land; he says the canal spoken of by the petitioner, was originally of a particular size, to wit, eight feet wide and four feet deep; that this was amply sufficient to drain the land the plaintiff then owned, but that he after-wards bought other lands adjacent to his, and turned the water from these contrary to their natural tendency into the canal ; that he also sold the right to others owning lands adjoining his to turn water into this canal, and that it was this increase of water, and not the dam erected by him that caused the grievance complained of by plaintiff He also says in his replication, that at the time alleged by plaintiff as the commencement of the use of the easement claimed, the then proprietor was an-infant at the time the canal was cut and conld not, therefore, give lier consent; that previously to her estate, her mother, who was a feme covert, was the owner, and that he, defendant, bought the estates of both at a sale made by the clerk and master of Edgecombe county.

The replication further states, that previously to his purchase of the land, the persons to whose title he succeeded, had a mill where the present one is situated, and used it for many years, but that they found it convenient to let it go down, and that he has done nothing more than restore the state of the water to what it had before been. The County Court declared that the petitioner wras entitled to relief, and therefore, ordered that a writ be issued to the sheriff, commanding him to summon a jury to meet on the premises, to enquire of the damages, &c. The Superior Court gave the following judgment: “This cause is heard on the appeal, and

the Court confirms the judgment of the County Court, and directs that the cause be sent back to the County Court with directions to proceed to issue a writ commanding the sheriff to *420summon a jury to view the premises, and assess the plaintiff7» damages.”

From which judgment the (defendant appealed.

Dortch and Bodmcm, for the plaintiff.

B. F Moore, J. L. BricEgers and 'Whitfield., for the defendant.

Pearson, C. J.

The damage complained' of, is the consequence of an obstruction to an easement to which the plaintiff alleges’he is entitled, and we were, at first, inclined to think the proper remedy was an action on the case, but Bryan v. Burnett, 2 Jones’ Rep. 305, Shaw v. Etheridge, ante 225, settle the question. The- mode of. proceeding by petition, applies to-all cases where damage to land is caused by the erection ©f a mill-dam.

This is the first ease in whi-eh the Court has been called on to put a construction on the statute in respect to'the mode of proceeding, where the right of the petitioner is denied, for eases of the kind usually involve questions merely as to- the damages.

The statute provides, Rev. Code, ch. 71, sec. 12. “If, upon the hearing of any petition, the Court shall judge the petitioner entitled to relief, they shall order a writ, &c.,” to have the damages enquired of 6y a jury on- the premises. It seems to have been supposed that the matter of damages would generally be the only question presented, (and this, as we have seen, has been the case,) and no express prevision is made as to the mode in which the owner of the mill is to make defense, so as to raise the question whether the petitioner is entitled bo relief ¡ but the practice has become general, merely to put in an answer in writing -without regard to form, and without attending to the rules of pleading. The question is: suppose the answer alleges that the land set out in the petition as being damaged by the ponding of the water, is the property of the defendant, so as to raise the question of title, as upon a plea of liberum ienemenium, or that the defendant *421ibas a license, or has .acquired an easement by prescription, in ■what way are the facte about which the parties are at issue, to be tried, so as to enable the Court to adjudge as to the petitioner’s right to relief? We are of opinion that the mode of trying issues of fact according to the course of the common law, ¡should be pursued; that is, the Court has a jury empanelled to try the issues, and if the verdict be for the petitioner, then the Court adjudges the-jpetitioner entitled to relief; and, in the {Jowity Gourt, a writ ef enquiry as to the damages should is-•sue to the sheriff directing him to have it executed on the ¡premises by the view and examination of a jury. Upon ¡¡appeal, the Superior Court .should likewise have the issues of fact tried by. a jury,- and under the act of 1809, a writ of enquiry was issued to enquire of the damages on the premises; but by the aetef 1813, the'.damages are now, in the Superior Court, to be.-assessed by a jury at bar, and of course, when issues of faetare raised, the same jury which tries the issues, will assess the damages, ¡as in other cases. In our case, the petitioner alleges that he ¡is entitled to an easement by prescription. This is denied by the defendant, because of theintfancy and coverture of the supposed grantors; and, in ¡the second place, the extent of the easement is put in issue, both in respeet to the size of the ditch, and the seope-ef country the petitioner is entitled to drain by means of the ditch— thus raising issues of fact to he tried by a jury under the directions of the-Gonrt as to the law involved.

The record does not show how the matter was .disposed of "in the'Superior ¡Court; it simply sets out that “this cause is -heard on the ¡appeal, and the Court confirms the judgment of the County Court, and direets that the cause %e sent baelt with directions to the County Court to have the damages assessed ¡by a writ of enquiry executed on view of the premises.” So, we are to assume that the Superior Court %,cted without the intervention of a jury. In this, there is error. A jury in that Court should have passed on the facts, and also, have assessed the damages, if under the charge of the Court, they found ia i&WQi' of the petitioner, as was done in Kesler v. Verble, ante *422185, and no question was mad© as to-, the mode of proceeding-. The suggestion that the case should be sent back to the County Court, in order to have a writ of enquiry executed on view of the premises, has nothing to support it, for an appeal is allowed in all cases, which vacates every thing done in the County Court, and- under the act of 1813, in the Superior Court, the damages are to be assessed by a jury at bar, which excludes the idea ©f an intention to give any particular effect to the action of the jury of view which is directed by order of the County Court. The fact is, experience proved that a jury of view did not answer as well as- was anticipated, and under the act of 1813, when a case gets to the Superior Court, the damages are t© be assessed at bar,, so- as to let the jury have the benefit of the instructions of the- Judge, which it is supposed would aid them more than a view of the premises, exposed as they would be, to irregularities and improper influences. There is error.

Per Curiam,

Judgment reversed..