entitled by the law to have his cause considered with the "cold neutrality of the impartial judge" and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged.

The plaintiff also assigned as error the judge's comments and criticisms upon the address of one of his attorneys to the jury, which he alleges were improper and prejudicial. It is not necessary to consider this and the other exceptions, as they may not be presented at the next trial. The error of the court requires that another trial should be awarded.

New trial.

(144 N. C. 64)

CLARK v. PATAPSCO GUANO CO. (Supreme Court of North Carolina. Feb. 26, 1907.)

1. APPEAL-EXCEPTIONS NOT DISCUSSED IN BRIEF-ABANDONMENT.

Exceptions not discussed in appellant's brief are, under Supreme Court rule 34 (53 S. E. ix), to be taken as abandoned.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.] 2. TRIAL-SUBMISSION OF ISSUES.

Issues need not be submitted in any particular form, but it is enough that they are so framed as to present the material matters in dispute, and to enable each party to have the full benefit of his contention, and, when answered, to determine the rights of the parties and support the judgment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 840-845.j

3. SAME.

Defendant is not entitled to have submitted the issue of settlement when he has pleaded no such defense.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 828-835.]

4. SAME.

One is not prejudiced by refusal to submit an issue of easement vel non, where the court directs that a certain issue be answered "No" if there was an easement, and it is answered "Yes."

5. WATERS AND WATER COURSES-INJURY TO DAM-EVIDENCE-RELEVANCY.

On the question whether the erection of defendant's dam obstructing a flood channel of a river was the cause of the breaking of plaintiff's dam by waters ponded up against it, evidence that it had never been broken by the water before the erection of defendant's dam, and was thereafter broken three times, is relevant.

6. SAME-OBSTRUCTION OF FLOOD CHANNEL. One may not obstruct the flood channel of a river by erection of a dam, thereby throwing the water back onto and breaking a dam erected by another to keep waters off his land, without liability for the injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 202, 203.]

7. TORTS-LIABILITY OF TORT-FEASOR-CONCURRENT CAUSES.

One whose tort in erecting a dam across the flood channel of a river concurs with other causes in producing an injury is liable as though it were the sole cause.

[Ed. Note.--For cases in point, see Cent. Dig. ul. 45. Torts, § 22.]

Appeal from Superior Court, Halifax County; Shaw, Judge.

Action by Walter Clark against the Patapsco Guano Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The plaintiff alleges that he owns and cultivates a tract of land in Halifax county, containing about 1,400 acres, and lying on the south side of the Roanoke river, and the defendant owns and cultivates a large tract of land, which lies above the plaintiff's and between it and the said river. The plaintiff and those under whom he claims have for many years maintained, on what is now his farm, a dam or embankment, which is parallel with the said river and about one-half mile therefrom, for the purpose of preventing the flooding of the plaintiff's cultivated lands by the waters of the river which overflow its banks in times of high freshets. There is a large bend in said river just opposite the farms of the plaintiff and defendant; the same beginning on defendant's farm, extending out in a north, or northeast direction, and ending just below plaintiff's farm. Extending across said bend from about where it begins on defendant's farm to where it ends below plaintiff's farm, is a wide natural depression, or drain, ranging in width from about 300 yards to a mile, which is the natural course, or drain, for a large portion of the waters of said river in times of freshets and floods. Said drain runs about parallel to plaintiff's dam, between it and the river, and not only affords room for the spread of the waters of the river, but takes the overflow waters or the greater part thereof, across said bend, and past plaintiff's farm, very much more rapidly and quickly than the same could be taken by the course of the river. In the year 1897, the defendant wrongfully and unlawfully erected a cross-dam from a point on Roanoke river about opposite the lower part of plaintiff's dam, across said depression or drain, to the plaintiff's dam near its lower end, extending the same over the lands of one W. H. Josey, and for a short distance over the plaintiff's land, and joining it to the plaintiff's dam without plaintiff's consent. Said cross-dam runs at about a right angle to plaintiff's dam, and was made higher and much stronger than his dam. The defendant has ever since wrongfully and unlawfully maintained said cross-dam. That the defendant wrongfully and unlawfully erected a dam or embankment, from the end of said cross-dam next to the river up and along said river to a point some distance above plaintiff's farm, and thence across to the highland of the defendant's farm; the latter part of said dam being call ed the "Upper Dam." The defendant wrongfully and unlawfully maintained said dams until the 25th day of May, 1901. It is further alleged that the defendant unlawfully and wrongfully obstructed the natural flow of the water in the river, and caused the same to

pond and collect in a larger quantity than it otherwise would have done. It is then alleged that in May, 1901, there was a large freshet in the river, and the defendant's upper dam, by reason of its negligent and faulty construction, gave way, and the waters of the river were thrown upon the plaintiff's land in much greater volume, and with much greater force, than would have been the case if the said dam had not been there, and that the lower or cross-dam stopped the flow of the water, as it rushed down the said natural drain or depression, and caused it to be ponded back on the plaintiff's land, and against his dam, so that it broke and the water escaped through the breach thus made, and flooded the plaintiff's lands, to his great damage. The plaintiff also alleges separately that the said wrongful acts of the defendant were negligently done in respect, not only to the manner of constructing the dams, but to the obstruction of the natural flow of the water.

The material allegations of the complaint were denied by the defendant, which pleaded specially that it had acquired an easement by 20 years adverse user to maintain the lower or cross-dam, as well as the other dams described in the complaint, and that it owed no duty to the plaintiff concerning the same, and had committed no wrong to him by reason of the alleged acts of which he complains. In order to show that the plaintiff's dam was broken by the ponding of water back upon it, and that this was caused by the crossdam of the defendant obstructing the natural flow of the water from the river down the natural depression or channel and through the defendant's land, the plaintiff proposed to show by his own testimony that since the cross-dam was erected, his dam had been broken several times at the same place. The defendant restored it each time it broke, and the plaintiff testified that when restored it was not as good a dam as it was before the first break. It was about the same height, though not as thick. This evidence was admitted over the defendant's objection. The plaintiff had previously testified that the break in his dam was about 10 feet from the defendant's cross-dam-right at the junction of the two dams. The witness also testified that if the upper dam and the crossdam were not there, the natural course of the overflow water during freshets would be down the deep depression on the defendant's land, and that his dam had not broken until the cross dam was built; the latter being higher and thicker than his dam. There was evidence tending to show that the deep depression on the defendant's land served as a natural drain or flood channel for the waters of the river in times of freshets. The defendant's proof tended to show that the plaintiff's dam was stronger and better when it was restored than it had been before. The parties introduced testimony which tended to sustain their respective contentions.

The defendant in apt time requested the

The

court to submit the following issues to the jury: "(1) Did the defendant by its maintenance of its river dam wrongfully cause any injury to the plaintiff? (2) Did the defendant have an easement to maintain said dam? (3) Did the plaintiff enter into an agreement with the defendant to forego any right to recover damages if the defendant would restore plaintiff's dam to the condition in which it was before the injury? (4) Did the defendant comply with said agreement? (5) What damage, if any, has plaintiff sustained?" court refused to submit the issues, and defendant excepted. The court then submitted three issues, which with the answers thereto, were as follows: "(1) Did the defendant negligently obstruct the natural flow of the flood waters of Roanoke river by its dams, and cause the same to collect and be thrown against plaintiff's dam in greater volume and force than they naturally would have been and thereby break plaintiff's dam and flood and injure his farm as alleged? Ans. No. (2) Did defendant by its dam wrongfully and unlawfully obstruct the natural flow of the flood waters of Roanoke river and cause the same to collect and be thrown upon plaintiff's dam in greater violence and force than they otherwise would have been and thereby break the same and flood and injure plaintiff's farm as alleged? Ans. Yes. What damage if any is plaintiff entitled to recover? Ans. $1,000."

The court charged the jury in part as follows: "The plaintiff contends that outside of said dam and between it and the main channel of the river, there is a natural depression or drain 300 or more yards wide, which is a natural flood channel of Roanoke river; that is, a channel through which the overflow waters of the river naturally flow whenever the waters rise sufficiently high to overflow the banks of the main channel of said river, and the court charges you if you find this to be true, that there was such a flood channel between the plaintiff's dam and the river, that the defendant had no right to obstruct said channel with his dam or dams, unless the defendant has shown by a preponderance of evidence that it had an easement or prescriptive right to do so. That water resulting from an overflow in districts where flood waters cover great tracts of land may be treated as surface water, and the landowner incurs no liability where, in protecting his land from such overflow, he throws the water upon an adjoining proprietor, except when he diverts or obstructs water from the flood channel of such stream, for the flood channel of a stream is as much a natural part of it as is the ordinary channel." The defendant excepted to each of these instructions.

The other facts pertinent to the exceptions relied on in this court are stated in the opinion. There was a judgment upon the verdict for the plaintiff, and the defendant appealed. The following is a plat of the locality in question:

Day, Bell & Dunn, Aycock & Daniels, and Murray Allen, for appellant. Daniels, Travis & Kitchin, for appellee.

WALKER, J. (after stating the case). There are only two exceptions discussed in the appellant's brief, and those not mentioned are to be taken as having been abandoned under rule 34 of this court. 140 N. C. 666, 53 S. E. ix. While we are not required to consider them, they have been examined and found to be without merit. The court below need not submit issues in any particular form. If they are framed in such a way as to present the material matters in dispute, and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and if when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statute is fully met. Hatcher v. Dabbs, 133 N. C. 239, 45 S. E. 562; Falkner v. Pilcher, 137 N. C. 449, 49 S. E. 945; Jackson v. Tel. Co., 139 N. C. 347, 51 S. E. 1015, 70 L. R. A. 738. This case is much like the one last cited in principle. Here, as in that case, the defendant, by proper requests for instructions, could have had the benefit of all the defenses which are covered by the issues it tendered and indeed the charge of the court presented the case to the jury, under the issues submitted, in every possible aspect, except as to the settlement with the plaintiff, and this was not pleaded. That matter was therefore not properly before the court, as it was not made an issuable fact by the pleadings. The question of easement was submitted to the jury under the second issue with full and correct instructions as to what would constitute an easement and with proper reference to the evidence relating thereto. The jury were directed to answer the second issue "No," if they found that an easement to maintain the dam existed. They answered the issue "Yes," thereby finding that there was no easement. We do not think the defendant was in any sense prejudiced by this action of the court. Cowles v. Lovin, 135 N. C., at page 491, 47 S. E. 610; Deaver v. Deaver, 137 N. C. 246, 49 S. E. 113. If the defendant succeeded in showing that the easement existed at any time, there was evidence of Donuser for as much as 20 years (Crump v.

Mims, 64 N. C. 767), and whether there had in fact been such disuse was a question for the jury. They gave their verdict on this point against the defendant. This disposes of the questions of easement and settlement. The question raised by the defendant's first issue, was certainly embraced by the second issue submitted by the court. Indeed, the latter more clearly and definitely presented the precise matter in controversy, and was therefore the more preferable of the two, as will hereafter appear.

The two questions reserved, under the rule, in the defendant's brief, and to which the argument before us was mainly addressed, relate, first, to the competency of the plaintiff's testimony as to the several breaks in his dam after the defendant's cross-dam was constructed; and, second, to the liability of the defendant for having obstructed the flood channel of the river on his own land by his cross-dam, and thereby diverting the water to the plaintiff's dam, and causing the same to break and his lands to be flooded. As to the relevancy of the evidence admitted by the court, the ruling, we think, was free from error. The plaintiff testified that before the cross-dam was erected the overflow or flood water of the river was accustomed to pass down the depression at the foot of his dam without doing any injury thereto and that his dam was broken by the ponding of the water back against it, which was caused by the obstruction of the defendant's cross-dam to its natural flow. He further stated that his dam had never been broken by the water before the erection of the cross-dam; but that after its erection it had broken three times during freshets, on account of the ponding of the water. There was no objection when he testified to the first break in his dam in May, 1901. We do not see why the evidence as to all the breaks, was not relevant to the issue. If the dam had not been injured before the cross-dam was erected and the water was ponded back, and the plaintiff's dam was broken several times after it was erected, this would seem to indicate a causal connection between the erection of the dam and the injury which followed. There was the positive evidence of the plaintiff as to the cause of the first break in the dam, namely, the freshet and the cross-dam, and, if necessary, this should be considered in passing upon the testimony to which ob

jection was taken. If by relevancy is meant the logical relation between the proposed evidence and the fact to be established, the testimony was admissible when tested by this definition. It is not a case where conditions are required to be the same or at least similar, as where a comparison between two things is made to ascertain if they have the capacity to produce the same effect, as in Rice v. Railroad, 130 N. C. 375, 41 S. E. 1031, and Bullock v. Canal Co., 132 N. C. 179, 43 S. E. 593, nor is the question like that raised in Warren v. Makely, 85 N. C. 12, and Bruner v. Threadgill, 88 N. C. 361, where it was attempted to show the value of one tract of land by comparing it with that of an adjoining tract. Our case is more like that of Johnson v. Railroad, 140 N. C. 581, 53 S. E. 362, and the class of cases to which it belongs, in each of which the plaintiff, in order to show that sparks from a certain engine had set his property afire, was permitted to show that the engine had emitted sparks shortly before or after the fire. Knott v. Railroad, 142 N. C. 238, 55 S. E. 150. In Aycock v. Railroad, 89 N. C. 321, the fact that a train had just passed, was held to be presumptive evidence that it had caused the fire, which was discovered near its track. Under the circumstances of this case, there was an open and visible connection between the obstruction of the water by the cross-dam and the subsequent breaking of the plaintiff's dam. The law does not require a necessary connection, which would practically exclude all presumptive evidence, but such as is reasonable, and not latent and conjectural. Bottoms v. Kent, 48 N. C. 154; Johnson v. Railroad, supra. The evidence which was admitted, fulfills that requirement. We do not hold that this evidence is sufficient of itself to establish the fact of injury to the plaintiff's dam, but that the breaking of his dam three times, under all the circumstances to which he testifies, is fit to be considered by the jury, in connection with the other facts, upon the question as to whether defendant's dam caused the alleged injury. It is more than conjectural evidence.

This brings us to the consideration of the principal question in the case. Could the defendant legally obstruct what is known as the flood channel of the river by erecting a dam across it, and thereby force the water back upon the plaintiff's dam to his injury, as already described? We think it is thoroughly well settled that it cannot, but is liable for the damages which resulted proximately from its wrongful act. "Every stream flowing through a country subject to a changeable climate must have periods of high and low water. And it must have, not only its ordinary channel which carries the water at ordinary times, but it must have, also, its flood channel, to accommodate the water when additional quantities find their way into the stream. The flood channel of the

stream is as much a natural part of it as the ordinary channel. It is provided by nature, and it is necessary to the safe discharge of the [increased] volume of water. With this flood channel no one is permitted to interfere to the injury of other riparian owners." 3 Farnham on Waters, §§ 879, 880. It is further said by the same author that the courts are very nearly agreed that the flood channel must be considered as a part of the stream, and no structures or obstruction of any kind can be placed in its bed which will have a tendency to dam the waters back upon the property of another riparian proprietor. The depression or drain which is mentioned in the evidence is a highwater channel of the kind described. It is | auxiliary to the main channel, relieving it when the water is high and the swollen stream overflows its banks; the low places on the river acting as natural safety valves in times of freshets. These depressions or channels being provided by nature for the safe discharge of the large volume of water when the bed of the stream becomes incapable of retaining it, the course which the flood water is in the habit of taking through them cannot be changed or obstructed to the injury of adjoining private landowners. Farnham on Waters, § 880. The wrong committed in blocking such a channel is of the same character as that of one who closes a natural drainway on his own land, and thereby causes the land of an upper proprietor to be flooded by the back water. The principle governing this case has frequently been recognized and applied by this court. In Overton v. Sawyer, 46 N. C. 308, 62 Am. Dec. 170, it was held that, without reference to the plaintiff's acquisition of an easement by presumption, the defendant had a right to have the water allowed to pass off his land through a natural drain, and when the plaintiff, by means of an embankment across the drain, obstructed the flow of the water, and thus interfered with the rights of the defendant, the latter had a cause of action against him for the resulting injury to his property. So, in Pugh v. Wheeler, 19 N. C. 50, the court decided that ponding water back upon another's land by any act which impedes its natural flow is a clear and direct invasion of the proprietary interest in the land itself, and is an actionable wrong, unless protected by a grant of the right so to do, or by an easement in some other way acquired. It was asserted in Porter v. Durham, 74 N. C. 767, as being an elementary principle, which is founded on reason and equity and common both to the civil and common law, that the owner of land cannot raise any barrier or dyke, even for the better enjoyment of his own property so as to obstruct the natural drainage of another's land, and thus intercept and throw back the water upon it. "An owner may not use his property absolutely as he pleases. His dominion is limited by the maxim 'sic utere tuo at alienum