Opinion
Decided June 26, 1924.
Willard Ford, for plaintiff. Lucius B. Sweet, for defendant.
This is an action to recover damages caused by flow of surface water diverted by means of a ditch upon land of the plaintiffs. The order of the presiding Justice in the court below was "Plaintiffs non-suit on the stipulation on the part of the defendant that judgment shall be rendered by the Law Court for the plaintiffs for the sum of Twenty-five dollars and costs if, for any reason, the Law Court shall over-rule the order of non-suit." Exception to this order was taken by plaintiffs.
A majority of the members of the court are of opinion that a question of fact, namely, the extent and nature of the ditch, as affecting the rights and liability of the parties, was one which should have been submitted to the jury; hence the order of non-suit was error. Exception sustained. Judgment for plaintiffs in accordance with the stipulation.