#### H. M. SHAW v. THOMAS J. ETHERIDGE.

Where there was a ditch, which drained the lands of two proprietors, respectively, and the owner of the lower tract so obstructed the ditch, as to injure the other party’s crop by the ponding of the water, it was Held that an action of trespass, on the case, was the proper remedy.

gave not material to any point in the controversy, it was Held no ground for a venire de novo, whether they were correct or not.

Tins was an action ON the oase, tried before Maitly, J., at the last Fall Term of Pasquotank Superior Court.

conveyed to plaintiff a parcel of land in November, 1853, being a portion only of a larger tract, which he owned at that time.

It further appeared in evidence, that the part sold, was the upper part, and drained, naturally, through a portion of the land reserved by the defendant, and could only be drained in that way, except at great expense.

It also appeared, that a ditch had been dug along the course of this natural drainage to aid in conducting off, the water, and this ditch, the defendant commenced in 1851, and finished in the early part of the fall, before the sale to the plaintiff.

was common to both parcels of land, (the part sold and the part reserved,) and when finished, there was placed in it some logs; and among them, a hollow log, with a stop or plug in it. The ditch, without the removal of the plug, afforded a very imperfect drainage, through the logs, but with the plug removed, would serve as a drain to both parcels, and especially to plaintiff’s.

sale, ditch was finished, with the stop removable, at pleasure, as above stated, and this stop was only a few feet from the deviding line between the parties on the defendant’s side.

The plaintiff took possession of the land, in the winter of 1853, and attempted, the next season, to cultivate a crop on the land, which the ditch was intended to drain; but the defendant, in the spring of that season, by throwing in clay and *226other material, rendered the obstruction so complete, and the use of the plug so impracticable, that a considerable portion of the plaintiff’s crop was damaged by the water.

The defendant’s counsel contended, generally, that no right to drain through the ditch passed, or was conveyed by the sale and deed to plaintiff; especially, in the condition in which the ditch then was, and that he had a right to close it up.

The Court was of opinion with the plaintiff upon his right to drain through the ditch, and instructed the jury, if it was rendered less serviceable, as a drain to plaintiff’s cultivated land, by the additional obstructions thrown in by defendant, plaintiff would have a right of action.

The Court was furthermore of opinion, that in case of a common ditch, with a stop or lock in it, (as a plug in a hollow log) each proprietor would have a right to use the stop, no matter on which side of the line it might be, and so instructed the jury. Defendant excepted.

Yerdict for plaintiff. Judgment. Appeal by defendant.

Hines, Vm. A. Moore and Johnson, for plaintiff.

Winston, Jr., and Fowle, for defendant.

Battle, J.

When this case was before the Court on a former occasion, we ordered the judgment, which the plaintiff had obtained in the Court below, to be reversed, and a venire de novo to be awarded for misdirection, upon the question of damages; see 3 Jones’ Rep. 300. No objection was then taken to the form of the action, and in our opinion, none can be urged with success now. The injury, for which the present action is brought, is similar to that, which is caused byponding water back upon the land of another by the erection of a mill, or other dam; and trespass, on the case, has always been considered the proper remedy in cases of that kind, when they do not come within the provisions of the act concerning mills and millers Rev. Code, ch. It. See Bryan v. Burnett, 2 Jones’ Rep. 305. The case is manifestly distin*227guishable from that of Kelly v. Lett, 13 Ire. Rep. 50, in which it was alleged that the plaintiff was the owner of a mill, a short distance below one occupied by the defendant on the same stream, and that the defendant wilfully, mid with m~ tent to injivre the plaintiff.\ frequently shut down his gates, so as to accumulate a large head of water and then raised them, by which means, an immense volume of water was thrown, with great force, against the plaintiff’s dam and swept it away. In that case, because the act was willful, and done with a direct intent to injure the plaintiff, trespass vi et armds, and not trespass on the case, was held to be the proper remedy, and the manner in which the injury was inflicted, was compared to the firing, by the defendant, of a cannon against the plaintiff’s dam; certainly no such comparison can be made between the wrongful act complained of in that case, and the one charged in the present.

The other objection, that the Judge erred in his instruction to the jury, that both parties had a right to use the plug in the hollow log as a drain to the ditch, which was common to both, no matter on which side of the dividing line the log might be, cannot avail the defendant. The remark was entirely immaterial to any question between the parties, as raised by the facts in proof, and whether correct, in point of law, or not, could not, in any way, affect the case.

Per Curiam,

Judgment affirmed.