#### MARY MORRIS *vs.*MILES COMMANDER.

June 1843

A person, who has acquired, by presumption of law, a right to pond water on another’s land to a certain height, is not .thereby entitled, to increase the height of such pond, but, if he does, is liable to the other in damages for the excess. And it is incumbent on him who claims the privilege to pond water, to shew that that privilege authorized him to pond the water as high as he now ponds it.

Appeal from the Superior Court of Law of Pasquotank County, at Spring Term, 1843, his Honor Judge Pearson presiding.

This was an action of trespass on the case for ponding water on the plaintiff’s land, by means of a dam erected on the defendant’s land. It appeared that a branch or natural drain passed through the lands of both the plaintiff and the defendant, the defendant’s land lying below that oí the plaintiff. The defendant, in June 1842, made a dam across the said drain on his own land, a few feet from the line that divided the two tracts of land, and by that means the water, that usually passed along down the drain, was ponded upon the plaintiff’s land. The defendant contended, that a grant to him, to erect a dam and to pond back the water on the plaintiff’s land, was to be presumed from an undisturbed *user*by him for upwards of twenty years. It appeared in evidence, that the defendant had made a dam across this drain in the year 1831, near where he made the dam in 1842. The son of the defendant deposed, that for twenty years before the time of the trial, (April, 1843,) his father had a dam across this drain, so as to protect his fields from the water running off the plaintiff’s land — that this old dam was about 75 yards do tvn the drain — that it was superseded by the *511new dam of 1831, erected at another place, and that the old dam was at that time removed. In 1838, this son of the defendant was the owner of the land now owned by the plaintiff; and he asked the permission of his father to cut a ditch through the dam of 1831, and the defendant gave him liberty to do so. He then cut a ditch a foot deep in the bottom of the drain through the dam, and drained the water into the defendant’s large ditch, which he had cut across the natural course of the drain, on his side of the dividing line between the two tracts of land. In March, 1842, the witness sold his .land to the plaintiff, and then told her that he had cut the said small ditch along the drain, and through the dam of 1831, by the permission of his father, the defendant. There was no evidence, that the old dam, which stood 75 yards down the drain, ever ponded the water on the plaintiff’s land to as high a point, as either the dam of 1831 or that of 1742 did.

The court charged the jury, that to raise a presumption of a grant to the defendant, to stop up the natural drain of the water, and pond the same on the plaintiff’s land, there must have been an enjoyment of the right to obstruct, to the same extent as it is now obstructed, continually for twenty years. And if the water was ponded back farther upon the plaintiff’s land by the dam of 1831, than it had been by the old dam 75 yards down the stream, then as to the *excess,*a presumption of a grant for that *excess*commenced running only from 1831 : and that the plaintiff was entitled to recover for that *excess,*notwithstanding time sufficient had run to raise a presumption of a grant to the defendant to erect the old dam, 75 yards lower down on the stream, and to pond the water to a less height. The court said that sixteen years undisturbed *tiser*of the' said dams by the defendant, by which the water was thrown back on the plaintiff’s land, with a four years discontinuance of the dams by contract with his son, the then owner of the land of the plaintiff, would not raise a presumption of a grant to him to erect the said dams ; that there must be an actual and continued en*512joyment of the easement for at least twenty years, to raise such a presumption.

The jury found a verdict for the plaintiff, and there being judgment pursuant thereto, the defendant appealed.

No counsel for the plaintiff.

*Kinney*for the defendant.

Daniel, J.

Whether the sixteen years undisturbed *user*of the dams by the defendant, taken together with the four years discontinuance of the dam of 1831, by contract with his son, is or is not sufficient in law to raise a presumption of a grant to him of the privilege to dam the drain and throw back the water on the plaintiff’s land, is a question not necessary for us now to decide. For it is admitted, that there was no evidence in the cause, that the water was ever ponded, by means of the erection of the old dam *75*yards down the stream, to as high a point on the plaintiff’s land, as it was by the dam made by the defendant in the year 1842. The plaintiff was then certainly entitled to recover, under any aspect of the case. The damages assessed are but nominal, and the defendant has no right to complain.— The judgment must be affirmed.

Per Curiam. Judgment affirmed.