Opinion
Fall Term, 1800.
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 his action against a wrongdoer.
This was an action on the case for overflowing the plaintiff's land, by means of a mill dam erected by the defendant. The declaration stated that the plaintiff was seized in his demesne as of fee, and possessed of the lands in question.
Duffy, for the defendant, contended that although the plaintiff was not bound to state his title in the declaration, yet, having thought fit to do so, he was compellable to prove it; for which he cited and relied upon the case of Bristow v. Wight and Pugh, Douglas, 640.
Possession alone is sufficient to maintain this action against a wrongdoer, and as such the defendants are charged. The gist of the action is a nuisance committed by them upon land in the plaintiff's possession; and as all averments beyond this are immaterial and not put in issue in this action, they need not be proved. The (181) case cited is of a variance in the description of a contract; and the cases therein referred to as warranting the decision of the Court, cannot fairly be extended beyond those cases where records or written contracts are set forth in the declaration; these, if stated at all, ought to be stated truly. The possession here is the ground of the action, and had that been described in any particular way, as derived under lease for years or otherwise, the proof ought to have corresponded with the allegation, but as the seizin of the plaintiff is altogether impertinent it need not be proved.
The plaintiff had a verdict.
NOTE. — The Acts of 1809 and 1813 (See Rev. Stat., ch. 74, secs. 9, 10, 11, 12, 13, 14, 15, 16, and 17) prescribe a peculiar remedy by petition for persons injured by the erection of mills.
Cited: Pace v. Freeman, 32 N.C. 105.
SALISBURY DISTRICT, September Term, 1800.