CASE NOTES

Cited in Hyatt v. Myers, 73 N.C. 232 (1875); Branch v. Wilmington & W.R.R., 77 N.C. 347 (1877).

CASE NOTES

Words "False Toll Dishes" Defined. - The words "false toll dishes," as used in the statute, mean a toll dish measuring more than one-eighth of a half bushel. State v. Perry, 50 N.C. 252 (1858).

The measure kept need not be averred in the indictment. State v. Perry, 50 N.C. 252 (1858).

Sufficiency of Evidence. - An indictment for keeping false toll dishes was sufficiently supported by proving that measures of one seventh and one sixth of a half bushel were kept. State v. Perry, 50 N.C. 252 (1858).

But an indictment for keeping a false toll dish is not sustained by proof that the mill owner took one-sixth part of each half bushel with a half gallon toll dish. State v. Nixon, 50 N.C. 257 (1858).

CASE NOTES

Exclusiveness of Remedy. - Ordinarily, in cases to which this section applies, the remedy given must be pursued. Kinsland v. Kinsland, 186 N.C. 760, 120 S.E. 358 (1923).

Section Does Not Apply to Trespass. - The remedy under this section does not apply to an action for damages for a trespass committed on the plaintiff 's land. Henley v. Wilson, 77 N.C. 216 (1877).

Sufficiency of Description in Petition. - A petition for damages, caused by the erection of a mill upon the stream below, which described it as a "gristmill" without calling it a public mill, or a gristmill grinding for toll, was sufficient. Little v. Stanback, 63 N.C. 285 (1869).

Procedure to Assess Damages. - Under an early statute, it was held that, in a petition for damages for ponding water back, where in the county court the plaintiff 's right to relief was denied, the proper course was to impanel a jury to try the allegations made in bar of such right, and if such allegations were found for the plaintiff, the proper course was then to order a jury on the premises to assess the damages, but in all cases where there was an appeal to the superior court, the facts were to be ascertained by a jury at bar, but in that court, those issues pertaining to the question of relief, and those issues as to that of damages, were to be separately submitted. Jones v. Clarke, 52 N.C. 418 (1860).

Proper Issue. - In an action for damages resulting from ponding water upon plaintiff 's land, caused by the erection of defendant's milldam, an issue involving the amount of annual damage done thereby is the proper one to be submitted to the jury. Hester v. Broach, 84 N.C. 251 (1881).

Easement Limited to Mill Purposes. - Where the lower proprietor has acquired an easement in the lands of the upper proprietor to pond water back thereon from a dam erected on his own land to operate a public mill, the exercise of this right under the easement does not affect the title to the submerged land of the upper proprietor or subject the lower proprietor to an action for damages so as to start the running of the statute of limitations, nor will this use of the water ponded on the land of the upper proprietor by the lower proprietor for fishing with hook and seine ripen into his exclusive use for these purposes. Thomas v. Morris, 190 N.C. 244, 129 S.E. 623 (1925).

Liability for Defect in Bridge. - Where water was thrown, by the erection of a milldam, upon the highway, and the former proprietor of the mill had built bridges over the water, which, during his ownership, he repaired, and which were also repaired by the present proprietor, who did no other work on the roads, it was held that the present proprietor was answerable in damages to an individual who sustained an injury by reason of a defect in one of the bridges. Mulholland v. Brownrigg, 9 N.C. 349 (1823).

Proof of Ownership. - In an action for overflowing the plaintiff 's land, he need not prove his title, though it be set forth in the declaration, for possession alone is sufficient to support this action against a wrongdoer. Yeargain v. Johnston, 1 N.C. 56 (1800).

Plaintiff Entitled to Nominal Damage. - Instructions to a jury, that if a plaintiff sustains no injury from the ponding of water upon his mill wheel, still he is entitled to nominal damages, are correct. Little v. Stanback, 63 N.C. 285 (1869).

A motion for a new trial for failure of the court to instruct the jury to return at least nominal damages, because some overflow was admitted, it appearing that no such instruction was asked, that the admission was qualified and the testimony conflicting, and that there was evidence to show that no damage was actually done, was properly refused in the discretion of the court. McGee v. Fox, 107 N.C. 766, 12 S.E. 369 (1890).

Same - Injury Unnecessary. - In an action for damages for the maintenance of a dam across a stream, the plaintiff is entitled to recover nominal damages, without showing an injury capable of being estimated, or one that is perceptible in the sense that it is attended with some actual damage; for the mere fact of ponding back the water on plaintiff 's premises is sufficient to entitle him to nominal damages. Chaffin v. Fries Mfg. & Power Co., 135 N.C. 95, 47 S.E. 226 (1904), rehearing denied, 136 N.C. 364, 48 S.E. 770 (1904).

If the water be ponded back on the land of another by the erection of a milldam, he is entitled, in the remedy by petition, to nominal damages, whether there be actual damage or not. Wright v. Stowe, 49 N.C. 516 (1857).

Measure of Damages. - The measure of damages for backing water on land by means of a dam is the difference in the value of the land before and after the injury complained of. Borden v. Carolina Power & Light Co., 174 N.C. 72, 93 S.E. 442 (1917).

Permanent Damages. - In an action for backing water on plaintiff 's land by means of a dam, the plaintiff is entitled to permanent damages, past, present, and prospective. Borden v. Carolina Power & Light Co., 174 N.C. 72, 93 S.E. 442 (1917). See G.S. 73-27.

Damages to Health. - Damages may be given for injury to health as well as to land by overflowing. Gillet v. Jones, 18 N.C. 339 (1835). See also, Waddy v. Johnson, 27 N.C. 333 (1844).

Exemplary Damages. - In an action for overflowing plaintiff 's land by the erection of a milldam, where a recovery has been had before, and the nuisance was not abated, plaintiff can recover sufficient exemplary damages to compel an abatement of the nuisance. Carruthers v. Tillman, 2 N.C. 501 (1797).

Where Damage Suffered Only When Stream Is Swollen. - Where the erection of a mill on a stream causes the water to overflow the land of a proprietor above only when the stream is swollen, that circumstance will not excuse such party from damages altogether, but will only diminish the quantum of such damages. Pugh v. Wheeler, 19 N.C. 50 (1836).

Decrease of Custom. - Where, in suit for damages for ponding water, it appeared that plaintiff sustained injury to his mill by reason of defendant's erecting another mill and dam lower down on the same stream, the measure of damages was the amount of the damages actually sustained by plaintiff up to the time of trial; and, in estimating the same, the decrease of custom (in the matter of toll) could not be considered. Burnett v. Nicholson, 86 N.C. 99 (1882).

Counterclaim Inadmissible. - In an action for damages for ponding water back on plaintiffs' land, it was no error for the judge to charge that defendants could not set up as offset and counterclaim any benefit which plaintiff had received thereby, and add that the jury should, upon all the evidence, ascertain if plaintiff had sustained any damage. McGee v. Fox, 107 N.C. 766, 12 S.E. 369 (1890).

Action May Be Brought at Any Time. - Ponding a stream so as to throw the water over the land of a proprietor above, which the water did not before cover, gives him a good cause of action at any time when he may wish to use his land, unless he has granted the easement, either actually, or by presumption of law from the length of time he has permitted the easement to be enjoyed. Pugh v. Wheeler, 19 N.C. 50 (1836).

Easement Not Purchased by Payment of Judgment. - The payment of a judgment for ponding water by a milldam does not amount to the purchase by defendant of an easement to pond back water on plaintiff 's land. Candler v. Asheville Electric Co., 135 N.C. 12, 47 S.E. 114 (1904).

CASE NOTES

When Section Applicable. - This section applies where water is ponded upon the plaintiff 's land by a dam constructed on the property of another or where a trespass of like character is committed, because at common law an action could be brought each day so long as the trespass continued. But the statute does not apply and was never intended to apply to an actual entry upon the complainant's premises and the construction thereon of a dam for the purpose of ponding water and retaining possession. Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625 (1924).

Denial of Injunction. - An injunction will not be granted to restrain the erection of a dam whereby the mill wheel of the plaintiff is flooded so as to become useless. Burnett v. Nicholson, 72 N.C. 334 (1875).

For such an injury damages will adequately compensate, and should the annual damage exceed $20.00 the plaintiff is remitted to his common-law action, and can compel an abatement of the nuisance. Burnett v. Nicholson, 72 N.C. 334 (1875).

Where the owner of land adjoining an old millsite sought to enjoin the erection of a new mill, and it was ascertained by a verdict that the mill, though injurious to the health of the plaintiff 's family, was advantageous to the public, relief was refused; especially as the old mill was erected before the plaintiff purchased. Attorney Gen. ex rel. Eason v. Perkins, 17 N.C. 38 (1831).

When Injunction Granted. - In the case of the erection of a milldam, a court of equity will not interfere by injunction, unless it be shown that it will be a public nuisance, or, if it will be a private nuisance only to an individual, unless it manifestly appears, that so great a difference will exist between the injury to the individual and the public convenience as will bear no comparison or that the erection of the dam will be followed by irreparable mischief. Attorney Gen. ex rel. Bradsher v. Lea's Heirs, 38 N.C. 301 (1844).

Existence of Another Remedy. - On application for an injunction to restrain the defendant from building a new mill, on the ground that the construction of the dam would injure the land of the plaintiff and the health of his family, testimony being heard, the court held that it is not every slight or doubtful injury that will justify the use of the extraordinary power of injunction to restrain a man from using his property as his interests may demand, especially as, if the injury apprehended should result, the complainant could resort to law for damages. Wilder v. Strickland, 55 N.C. 386 (1856).

When Demand and Allegation of Insolvency Unnecessary. - The demand for damages in the complaint for ponding water upon and injuring the lands of the upper proprietor, required by this section, is not necessary when the relief sought is to enjoin the maintenance of a dam on the plaintiff 's own land by the defendant's trespass thereon, and the abatement of the nuisance thus caused, and the trespass being continuing, the allegation of defendant's insolvency is not necessary. Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625 (1924).

Cited in Hester v. Broach, 84 N.C. 251 (1881).

CASE NOTES

Assessment Cannot Go Back Further Than Preceding Year. - In proceedings under the statute for ponding water on plaintiff 's land, the jury have no right to go back further than one year in assessing damages, but if they do, the error may be corrected by the court only giving judgment for one year preceding the issuing of the summons. Goodson v. Mullen, 92 N.C. 207 (1885). See G.S. 73-28.

Judgment May Be for Sum in Gross. - Where, in an action for damages to land by ponding water on it, the jury found that the land was damaged $80.00 per year, it was not erroneous for the court to give judgment for a sum in gross, and not for each year's damages. Goodson v. Mullen, 92 N.C. 207 (1885).

Recurring Causes of Action. - Case for nuisance in erecting a mill will lie for every fresh continuance after action brought; heavy damages are not usual in the first verdict, but in a second action the damages should be high to compel an abatement of the nuisance. ____ v. Deberry, 2 N.C. 248 (1795).

Conclusiveness of Verdict and Judgment. - In a proceeding to recover damages for ponding water by a milldam, the verdict of the jury and the judgment of the court thereon are conclusive as to the assessment of damages, up to the time when such judgment was rendered. An application for relief from damages, assessed for a period subsequent to the time of the judgment, can only be heard if the dam is taken away or lowered. Beatty v. Conner, 34 N.C. 341 (1851).

Judgment Not Res Judicata. - An action to abate a dam and for damages to land caused by the ponding back of water was submitted to arbitrators to find whether plaintiffs were entitled to damages, and, if so, to distinguish in finding the same between damages from permanent injuries and annual damages for five years from a certain date. The arbitrators assessed "the permanent damage of the plaintiffs to this date to their lands" at a certain sum, and also awarded a certain annual damage for each of the five years. Judgment was entered on the award, the judgment providing that the execution should be subject to the provisions of G.S. 73-26. The judgment was not res judicata of plaintiff 's right to recover damages after the termination of the five-year period for all except a fresh injury, since the judgment contemplated the removal of the dam at the end of the five years. Candler v. Asheville Electric Co., 135 N.C. 12, 47 S.E. 114 (1904).