#### FOREST CITY COTTON COMPANY et al. v. HENRIETTA MILLS.

(Filed 9 October, 1940.)

Trespass § la: Waters and Water Courses § 7 — Plaintiff in action for trespass is entitled to recover nominal damages upon showing that defendant broke his close.

This action was instituted to recover damages to plaintiff’s land resulting from the construction and operation of defendant’s milldam. Plaintiff abandoned its cause of action for negligent construction and operation of the dam, and elected to stand solely on its cause of action for trespass. *Meld:*Since plaintiff is entitled to recover nominal damages if he only show that the defendant broke his close, without reference to negligence or wrongful taking, an instruction to answer the issue of liability in the negative if the jury should find that defendant made no unreasonable uses of its riparian rights or, if reasonable, has not taken in whole or in part any of plaintiff’s land, is error, as placing too heavy a burden on plaintiff.

Appeal by plaintiff from *Armstrong, J.,*at April Term, 1940, of Rutheeeobd.

Civil action (1) for trespass, and (2) for negligent construction and operation of river dam.

It is alleged that thirty acres of plaintiff’s land situate on Puzzle Creek have been sobbed and soured and the shrubbery thereon destroyed by the construction and negligent operation of the defendant’s milldam on Second Broad River, which is several miles below plaintiff’s property.

On the hearing, the plaintiff abandoned its allegations of negligence, and elected to stand solely upon its action for trespass.

On the issue of liability, the court instructed the jury as follows:

“The court instructs you that if you should find from the evidence in this case that the defendant in the construction, operation and maintenance of its dam at Caroleen, North Carolina, has not made any unreasonable use of its riparian rights, as the court has defined the law to you and explained what unreasonable use means, or if reasonable, has not taken in whole or in part any of the plaintiff’s land as the court has heretofore instructed you, then you would answer the second issue No.’ ” Exception.

The jury answered the issue of liability in favor of the defendant. From judgment thereon, the plaintiff appeals, assigning errors.

*Hamrick •& Hamrick and Paul Boucher for plaintiff, appellant.*

*Oscar J. Mooneyham and Clarence 0. Ridings for defendant, appellee.*

Stacy,'C. J.

The trial court seems to have fallen into error in instructing the jury to answer the issue of liability “No” if they should *295find that tbe defendant “bas not made any unreasonable use of its riparian rights, ... or, if reasonable, bas not taken in whole or in part any of plaintiff’s land.” Tbe plaintiff bad abandoned its allegations of negligence and was proceeding only in trespass. It was, therefore, entitled to have tbe cause submitted to tbe jury on tbe theory of trespass without reference to tbe allegations of negligence or wrongful taking. *Cline v. Baker,*118 N. C., 180, 24 S. E., 516: *Chaffin v. Mfg. Co.,*135 N. C., 95, 47 S. E., 226.

Tbe challenged instruction placed too heavy a burden on tbe plaintiff. In trespass, tbe plaintiff is entitled to recover nominal damages if be only show that tbe defendant broke bis close. *Lee v. Stewart, ante,*287; *Chaffin v. Mfg. Co., supra; Little v. Stanback,*63 N. C., 285.

New trial.