CLARK V. GUANO Co.

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 twenty 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 cross-dam 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 crossdam 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 ten feet from the defendant's cross-dam-right at the junc

CLARK V. GUANO Co.

tion of the two dams. The witness also testified that if the upper dam and the cross-dam 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 damn 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 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?" The 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

CLARK . GUANO Co.

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. 3. 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 land-owner 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.

Daniel, Travis & Kitchin for plaintiff.

Day, Bell & Dunn, Aycock & Daniels and Murray Allen for defendant.

CLARK V. GUANO Co.

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 40 of this Court. 140 N. C., 666. 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; Falkner v. Pilcher, 137 N. C., 449; Jackson v. Tel. Co., 139 N. C., 347. 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 no 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 p. 488; Deaver v. Deaver, 137 N. C., 246. If