
    
      William Elliott vs. Haskell Rhett.
    
    Apart from all considerations of time, there is implied, upon the severance of a heritage, a grant of all those continuous and apparent easements, which have in fact been used by the owner during the unity, though they have had no legal existence as easements, as well as of all those necessary easements without which the enjoy- ‡ ment of the several portions could not be fully had.
    A change in the disposition of the owner of two tenements, which is to impress lasting qualities on the several portions, must be permanent and not temporary.
    The rule for parties and counsel is, that appeals must depend upon the questions or points submitted to the Court below: but in its discretion the Court of Appeals may supply inadvertent omissions of either Judge or counsel, by deducing any result which will follow from a just application of the law to the evidence that was before the jury.
    Easements which have been substituted for the natural rights of property are entitled to more favorable regard than those which are restrictions upon natural rights: they are to be treated in every respect as natural easements.
    
      When a defendant was not the original creator of the disturbance of an easement, an action will not lie against him until he has been requested to remove the cause of the disturbance which is on his land; and things necessary to be done by plaihtiff before any thing defendant can lawfully be required to do, would be effective,— plaintiff must do or show his readiness to do, before he can require the defendant to act.
    An easement created by the former owner must be enjoyed in the same condition and to the same extent only as he established it: where the plaintiff has added an usurped easement to a rightful one, and blended them in his attempt to enjoy them, and defendant has obstructed both, plaintiff cannot maintain an action, unless he can shew that the excess could have been obstructed without interfering with the right.
    
      Before Frost, J. at Colleton, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ In 1767, James Skirving owned the plantations now owned by the plaintiff, called the Bluff and Middle Place, and the defendant’s, called Smilie. The plantations are parts of a large swamp, vented by Deer creek into Ashepoo river. The Bluff, which is the highest on the swamp, is separated from Middle Place by Boone’s dam or causeway. A large island, called Mickie, extending from within Middle Place and through a large part of Smilie, divides the swamp. Middle Place extended down the swamp to the west of this island; and Smilie was situate to the east and north of it. The waters from the Bluff and the southern part of Middle Place, and from other swamps above, had a natural vent on both the east and west sides of Mickie island into Deer creek. A canal, which may be called the Boone canal, extended through the Bluff and Middle plantations, and through the swamp to the west of Mickie island, into a brancfy of Deer creek.' Across the swamp, above the line of Smilie, was a dam called Clark’s dam. On the north-western boundary of Smilie, Toomer’s bank extended from Mickie island to the high lands on the other side of the swamp, across the vent of Smilie into Deer creek, and wholly obstructed -the vent of the water from Smilie in that direction. . From the north-eastern part of Smilie swamp, a canal, called Smilie, was cut into Ashepoo river, which was the only vent for the water from Smilie. These plan-talions, together with Hext’s, another plantation on the upper part of the swamp, were, in 1787, conveyed by James Skirving to William Skirving. William Skirving died about 1800, and devised the lands to his daughter, the wife of Thomas Rhett Smith. Mrs. Smith survived her husband. By proceedings in equity, to which the plaintiff, who had married a daughter of Mrs. Smith, and Mrs. Smith, together with her other children, were parties, the master in equity, in February, 1832, conveyed Smilie to George P. Elliott. In January, 1841, George P. Elliott conveyed to Mrs. Eliza Glover; and, in January, 1844, Mrs. Glover conveyed to the defendant. Under the limitations of William Skirving’s devise to Mrs. Smith, she devised the Bluff and Middle plantations to certain of her children. The plaintiff purchased Middle Place from Mrs. Smith’s devisees in 1847, and the Bluff plantation in 1849. In 1849, the defendant having a dam across the swamp, from Mickie island to the opposite high land, below Clark’s dam, the plaintiff complained of the same as an obstruction. The dam was cut by a magistrate and freeholders, and this action was brought to recover damages for the obstruction.
    “On the plats of Smith, made for James Skirving in 1767, the Boone canal is represented through the Bluff and Middle plantations, as it exists at this time. It is so represented also in Purcell’s plat of 1787, attached to the deed from James to William Skirving; and in Diamond’s plat made in 1805. On this last plat, a canal is represented from Boone’s canal, through Middle Place to Clark’s dam. But the 'canal ends at Clark’s dam, and is not continued through, nor on the opposite side of Clark’s dam. Clark’s .dam is laid down on each of these plats. It is represented as extending entirely across the swamp. The testimony of the witnesses at the trial represented it as a very large bank, the largest in the swamp, and very ancient. Payne said the base of it was about fifteen feet: For a great many years before the trial, a canal had existed below Clark’s bank, through Smilie, in the direction of Smilie’s canal. This canal was not directly in the line of the canal above, from Boone’s to Clark’s dam, though it was not far out of the line. Toomer’s dam was, in 1826, an ancient dam. No one could say how long it had existed. The lands at that date had been for many years uncultivated. There was no evidence that at any time there had been a trunk or flood gate, or other artificial vent through Clark’s dam for the waters of Middle Place and the swamps above; except that Hearne testified that, in 1815 or 1817, he rode across Clark’s dam, in pursuit of a deer, and he thought there was a trunk in it, not far from the end of the Middle Place canal. Clark’s dam extended from high land to high land, and there was no bridge nor break in it. In 1831, ’32 or ’33, there was a break and a pole bridge across it, not far from the canal.
    “ Ferraby testified that he managed, for Heyward Glover, the plantation called Toomer’s, from 1826 to 1835. He knew Clark’s dam in 1826; it was a continuous bank, having no trunk or break. It was the largest dam in the swamp, and was intended to back water. It was across the narrowest part of the swamp. He crossed the dam often to hunt ducks and deer on Mickie island.' A break was made in the bank by an alligator having a hole under it, and he and one Allen put a pole bridge over the break in 1830. Payne, the plaintiff’s surveyor, said that Clark’s dam extended clear over the swamp. There was a ditch on both sides of the bank. Middle canal entered the upper ditch. He could not say if there was a check bank above Clark’s dam. The water would flow from the canal along Clark’s dam into the side canals. Clark’s dam had indications of a brake at the side, not in the line of Middle Place canal. Payne being recalled at the close of the plaintiff’s case, said that he saw traces of the Middle Place canal continued through the lower side of Clark’s dam. He did not examine particularly; thinks the trees are not so old there. He has no doubt the canal did pass through there. The side canal is a continuation of that above the dam. The canal must have passed through Clark’s dam. There was an opening in Clark’s dam, and the canal was filled up below.
    “Bacot, the defendant’s surveyor, represents two canals or spring ditches, along the edge of the swamp above and below Clark’s dam. These ditches above Clark’s dam are vented into Middle' Place canal, through the canal along the upper side of Clark’s dam. The spring ditches above Clark’s dam are not connected with those extending below Clark’s dam. The dam is complete between them, and there is a large tree between the spring ditches, and in the line of them. The course of the Smilie canal was not a natural vent for Smilie and the swamp above. It was not more than sufficient to vent the water from the Smilie tract. There was evidence that it was insufficient for that; and that it was entirely insufficient to discharge the water from .the swamp above Clark’s dam. In the opinion of some witnesses, Smilie would be ruined if the water above was vented through Clark’s dam, while the lands above would be very little benefitted.
    
      “ Forrester said, Middle Place canal came up to Clark’s dam, but there was no vent there. There is a side canal (spring ditch) at the end of Clark’s dam. No bridge is there. The dam crosses the canal and cuts it into two parts.
    
      “ Sanders knew Clark’s dam; had walked over it often. It was uneven in several places, and there was a bridge across a break. There was no cut in Clark’s dam opposite to the canal. He saw no appearance of a “ designed cut.”
    “ There was evidence of a canal between the Middle Place canal and the Boone canal, above Mickie island. Payne did not consider or represent it on his plat as a canal. He said there was a broad ditch at the head of Mickie island, not more than four or five feet wide. George P. Elliott said there is a small dam or ditch on each side, across the head of Mickie island; can’t say a canal. It is a ditch. He don’t know that it extends from the Middle Place canal to the Boone canal. It deepened towards Middle Place canal. Forrester said there are signs of an old canal across the head of Mickie island; about ten feet wide in places. He can’t say it connects with Middle canal. It unites with the Boone canal by a small ditch. Being recalled, he said the canal turned round the head of the island. Sanders said there was a canal at the head of the island, ten feet wide; not a ditch; he did not know if it connected with Middle Place canal. King said he knew the canal. It was twelve feet wide, and leads from one canal to the other. It is not a ditch. Bacot examined the canal. Near the island the canal is nearly filled by its washing. It is ten feet wide. The ends are more clear. It enters Boone canal. The Boone canal is ten feet wide in its extent from Mickie island to its vent into Deer creek. Payne said the fall of the swamp was greater on the west than on the east side of Mickie island. Bacot, by measurement, ascertained that the vent, by Boone canal, was shorter than a vent through Middle Place and Smilie. Sanders, Ferraby and Gross, said the Boone canal was the best vent. There were the remains of trunks from the Middle Place squares into Boone canal, and into Middle Place canal, above the Mickie island canal. George P. Elliott, in 1832, made a bank across the swamp, which prevented the waters from above being vented through the Smilie canal. The next year he made a bank higher up the swamp and across it. The third year he made a bank still higher up the swamp. These banks extended entirely across the swamp. Before he made the last bank, he stopped the break in Clark’s dam, which then backed the water as it had done before the break. He also levelled the banks of the canal which extended from Clark’s bank, in the direction of the Smilie canal, and filled it up. In that condition he sold Smilie to Mrs. Glover, without any doubt that the dams he had made, and the filling up of the canal and the break in Clark’s dam, were rightful. No complaint was made until in 1849, when, at the instance of the plaintiff, the dam of the defendant was cut. During the occupation of Smilie by George P. Elliott, Mrs. Smith resided on the Bluff place during the winter. Her eldest son was intimate with Mr. George P. Elliott; was frequently in his field, and informed of what Mr. George P. Elliott had done. The plaintiff, the brother of George P. Elliott, occasionally visited him at Smilie, but did not usually go into the field. Ferraby once, while managing for Mrs; Glover, obstructed the vent of Boone’s canal, and was notified by Mrs. Smith’s overseer of her dissent, when such explanation was made as induced Mrs. Smith to acquiesce in the temporary obstruction*
    
      
      “ The jury were instructed that the policy and interest of the State required the maintenance of water courses. That in inland swamps, the upper part has a right to vent through the accustomed channels and courses of the water over the lower part of the swamp. If the lower proprietor obstructed the natural vent, he is bound to substitute an artificial vent as good and effectual as the natural vent. The upper proprietor can only be deprived of such an easement in the land of the lower proprietor, by express agreement, or a use of the land, in a manner adverse to such easement, for twenty years. In the application of this branch of the law of easements to this case, the jury were instructed that if those under whom the plaintiff claimed, when the title to the three plantations was united in them, used the vent through Clark’s dam and Smilie, and sold Smilie, the purchaser would take subject to the easement. But if they had disused the vent, through Smilie, for so long a time as would support the presumption that it was abandoned, and then sold Smi-lie, the purchaser would hold the plantation, discharged of the servitude. And more particularly, that, if the former proprietors, for more than twenty years, had used Clark’s dam to back the water from Smilie, and did not vent the water from above through Smilie, and in this condition sold Smilie, the purchaser would take it discharged of the easement of a vent for the places above. The jury were expressly instructed that disuse alone of such an easement, without an adversary possession, would not extinguish it. And that this rule applied as well to land once cleared and cultivated as to uncleared swamp ; but that disuse attended by circumstances which shewed an abandonment, would extinguish an easement.
    “ The questions submitted to the jury were, whether, at any time within the period to which the evidence reached, any vent for the water above existed through Clark’s dam, and through Smilie; and, secondly, if such vent ever had been used, whether the evidence did or not show that for more than twenty years before the commencement of this suit, another vent had been substituted for that through Smilie, under circumstances which manifested an abandonment of the latter vent.
    “ The jury found a verdict for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds :
    1. Because the privilege of draining the waters from the land of the plaintiff, called Middle Place, through Clark’s dam, and over the defendant’s land, called Smilie, was proved to have been annexed to the plaintiff’s land, and in actual use at the time of the sale of the Smilie land; and there was no evidence that the vent for (he water, by the canal through Clark’s dam, was ever permanently obstructed or abandoned.
    2. Because the mere non-use of an easement or privilege, even for twenty years, will not raise the presumption of an extinguishment or abandonment, and his Honor should have so charged the jury.
    3. Because the neglect to use the canals above and below Clark’s dam for drainage, over the lands now owned by the defendant, during the time when the two tracts of land belonged to the same owner, was no evidence of the abandonment of any right whatever. And it was proved, that at the time when the possession was severed by the sale of the Smilie lands, the waters did flow by the canals through Clark’s dam, into defendant’s land, and did so continue to flow until 1835, when they were obstructed by the then owner of Smilie.
    4. Because the right to vent through the Middle Place canals, under Clark’s dam, into the Smilie place, was a necessary and subsisting privilege, and appurtenance to the place, which had not been lost by the assertion of any adverse right in any body else, for a sufficient length of time before action brought, and his Honor should have so charged.
    5. Because his Honor should have charged the jury, that if they believed that the vent for the waters in the lands below Clark’s dam was over the defendant’s land, the plaintiff was entitled to the verdict for the obstructions erected and continued by the defendant, on his land, before and after the freeholders had ordered the obstruction to be removed, and after he had been requested to remove them by the plaintiff.
    6. Because the verdict is in other respects contrary to law.
    
      Treville, for appellant,
    cited 5 Taunt. 311; 3 Kent, 439 ; 4 Stat. 723 ; 2 Bing. 376 ; 1 Bail. 209; 4 Strob. 513 ; 3 Kent, 449 ; 10 Mass. R. 183.
    
      ffliett, Hayne, contra,
    cited 4 McC. 96; Gale & What, on Easem. 38.
   The opinion of the Court was delivered by

Wardlaw, J.

A few prominent facts, gathered from the report and admissions made at the bar, will present the case which is to be decided.

The swamp upon which the plantations of plaintiff and defendant are situated, had, by nature, no drainage sufficient for cultivation. Its surplus waters were slowly discharged toward the north-west, by sluggish currents on either side of Mickie isl- and, into Deer creek, and thence into Ashepoo river. The general surface was so nearly level, that canals and ditches, dug below the surface so as to collect and carry off the waters, might, without much difficulty, be so graded as to run in any desired course, if a sufficient outlet for them into the creek or river could be had.

In 1767, the date of the oldest plat that was produced on the trial, the three plantations, (viz. the Bluff, and Middle Place, now belonging to the plaintiff, and Smilie, now belonging to the defendant,) belonged to one person, and were all, in part or in whole, cleared, ditched, banked, and cultivated in rice. The waters of the Bluff, (which, of the three, was southernmost and highest up the swamp,) were by Boone’s causeway, (which is situated on the line across the swamp between the Bluff and Middle Place,) obstructed in their natural flow over Middle Place and turned into Boone’s canal, which ran near the western edge of the swamp, through Middle Place and west of Mickie island to Deer creek. The waters of Middle Place were dammed back from Smilie by Clark’s dam, (which extended from Mickie island on the west across the western branch of the swamp to the high land on the east,) and were turned by ditches or a canal into Boone’s canal. The natural flow of the waters north of Clark’s dam, (round the east and-north of Mickie island to Deer creek,) was obstructed by Toomer’s bank, which had been raised on the adjoining land of Fishburne or Ladson, and an artificial channel cut partly through land higher than any of the swamp, afforded a vent for these waters into Ashepoo, in a north-eastern direction, so that they were discharged far below the mouth of Deer creek. Clark’s dam was a short distance south of the line that divided the Smi-lie tract and the Middle Place tract: and some acres of swamp, rvhich originally belonged to the latter tract, (spoken of as seven or fifteen acres,) were by the dam separated from Middle Place and connected with Smilie : and these few acres, as well as all of Smilie, depended for drainage upon the artificial channel which ran near the eastern edge of the swamp up to Clark’s dam, but not through it.

In this condition the three plantations seem to have been cultivated by successive owners of the whole, from 1767 until a period shortly before 1832.

In 1830, the cultivation of some of the lands was neglected : an accidental break in Clark’s dam, which had taken place after 1826, was left unrepaired, and the waters from Middle Place flowed into Smilie. In 1832, the Smilie tract, according to its original lines, was sold to George P. Elliott, by persons who retained the other two tracts, until they sold them to the plaintiff in 1847 and 1849. The same year George P. Elliott purchased, he made a dam to obstruct the flow of the waters, which came through the break in Clark’s dam: and. he continued to make improvements and obstructions, until in 1835 he had made three dams across the swamp on his own land, and had repaired Clark’s dam on the land above, and had filled up the artificial channel between his line and Clark’s dam. In 1849, the defendant was the owner of Smilie by purchase from George P. Elliott’s vendee, and was continuing the obstructions on his own land, and using the artificial channeljbefore mentioned, which is now called the Smilie canal: the plaintiff, insisting upon his right to discharge the waters of Middle Place through Clark’s dam into the Smilie caiial, or upon the Smilie tract, procured the defendant’s bank to be cut by a magistrate and freeholders, and brought this action to recover damages for the obstruction.

If no break had ever occurred in Clark’s dam, there would have been no circumstance which could have suggested a different rule, for the rights of the parties, from the disposition or arrangements which had been made for the use of the plantations by the proprietors, who owned them all. Apart from all consider ration of time, there is implied, upon the severance of a heritage, a grant of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have had no legal existence as easements, as well as of all those necessary easements without which the enjoyment of the several portions could not be fully had. ( )

To no subject is this doctrine more applicable than to the rice plantations on our inland swamps, in which the natural flow of water must be aided and controlled by artificial contrivances, and these may be infinitely diversified according to the judgment and ability of the owner. Those benefits or inconveniences, which, according to the scheme of culture that was adopted by the owner of a whole body of land, were enjoyed or suffered by a parcel thereof that he has sold, provided they are of uninter-mitting character and are shewn by external works, pass with, the parcel as necessary incidents of the land. They are like the natural easements of running water and supporting soil. Indeed, on a rice plantation, the ditches and banks are real substitutes for the insufficient arrangements of nature, the marks of which are often entirely obliterated.

If Clark’s dam had been in repair when George P. Elliott bought Smilie, there could then be no doubt that he and those who derive title from him might not only, by banks and dams, resist the discharge upon Smilie of the watersfrom Middle Place, which had been long dammed back by Clark’s dam and turned into another channel, but might insist that Clark’s dam should be in all respects regarded as a natural bank, which the owner of Middle Place could not rightfully cut or alter to their damage.

But Clark’s dam was broken when George P. Elliott purchased — the water might then be seen to descend through it from Middle Place to Smilie according to the law of nature ; and was not Smilie, when bought, subject to the natural easement which this law imposed ? This depends upon the manifestations of the will of the owner of the two tenements. The arrangements which he had made, he could change at pleasure: and if he had, before the sale of Smilie, shown that his scheme was changed, and that he no longer intended Clark’s dam to remain as an obstruction to the natural flow of the waters, then his last disposition furnished the rule, according to which the purchaser should take Smilie, burdened, or benefitted, by the qualities which were attached to it. But a change, which is to impress lasting qualities on an estate, must be permanent and not temporary. There must be an abandonment of the old scheme, and either the adoption of a new one or an acquiescence in the natural order of things that may follow the abandonment ( ). Upon this point, the verdict of the jury, under the instructions which were given, shows conclusively, that there was no abandonment of the scheme of culture, which had been long persisted in, but only an accidental and temporary derangement of it, no more indicating a change of purpose, than any decay of materials or occasional disuse of an improvement would do. To this conclusion the conduct of George P. Elliott, in repairing Clark’s dam, the acquiescence of those under whom the plaintiff claims from 1835 till 1849, in obstructions of the right now urged to discharge through Clark’s dam, and the evidence of the insufficiency of the Smilie canal, even in its present improved condition, to discharge more than the waters of Smilie, all plainly conduce: and besides the mere fact, that there was a break in Clark’s dam when George P. Elliott purchased, we see nothing in the evidence to favor the view of the plaintiff.

What we have said decides the case which the plaintiff pre-sen ted on the Circuit, where, throughout the trial, he urged his right to drain Middle Place, through Clark’s dam, into and upon Smilie. He now, under his fifth ground of appeal, presents a new case to this Court, claiming a narrower right, if the other should be denied to him. It is this. He has, as before mentioned, a few acres below Clark’s dam, between it and the Smilie boundary line. These, by the scheme of culture adopted by the owners of the two tenements, were cpnnected with Smilie, and, like it, drained through the artificial channel now called the Smilie canal: the defendant has continued obstructions which George P. Elliott,between 1832 and 1835,made to this drainage; and for this, it is said, the plaintiff should recover, even if he has nota right to drain through Clark’s dam. „

The first count of the declaration complains of defendant’s having obstructed the natural course of the waters from plaintiff’s low ground through defendant’s land to tide water: under this the plaintiff’s new case could not be made, for the natural course had been obstructed and was superseded by an artificial channel, at the time the heritage was severed, long before and ever since.

The third count is also inapplicable : for it complains of the defendant’s neglecting to repair the artificial channel, as he was bound to do, and there is no evidence that the defendant was bound to repair the channel upon plaintiff’s land, nor that the channel upon defendant’s own land has been out of repair.

The second count complains, that defendant has continued banks which had been wrongfully erected, and thereby has obstructed the plaintiff’s right to drain the water from his land into a channel leading over the land of the defondant. This might serve either for the larger right to drain the waters above Clark’s dam into the channel, or for the smaller right which the new case presents: and it is said for the plaintiff, that this smaller right is shewn by the evidence, and should be now sustained by the Court, although it was not urged on the trial below.

The general rule is, that appeals must depend upon the question or point submitted to the Court below, and that no new ground shall be taken in the Court of Appeals (). This is, however, a rule for parties and their counsel, not for the Court. It is competent for the Court to do justice by assuming any ground which it perceives to have an important bearing on the merits of the case, taking care only that there shall be full opportunity afforded for explanation and argument (). When a case has been heard below and decided correctly according to the evidence that was there adduced, this Court will not listen to an application for new trial on the suggestion that a ground, not before taken, may, if another opportunity be afforded, be sustained by evidence, which was not offered before, although it might have been : but, in its discretion, this Court may supply the inadvertent omissions of either Judge or counsel, by. deducing any result which will follow from a just application of the law to the evidence that was before the jury. If we could then see clearly, that the plaintiff’s new case ought to have come to a result different from that which was attained on the trial that involved it, a re-hearing would be awarded.

The objection to the new case most urged by the defendant is, that, (even if the right, to drain through the Smilie canal the few acres of the Middle Place tract which lie below Clark’s dam, was established by the disposition of the owners of the two tenements,) that right has been extinguished by the acquiescence of the owners of Middle Place in the obstructions which were made by George P. Elliott. It is said, that these obstructions were permitted, and were incompatible with the continuance of the easement now claimed; that they amounted to such an alteration in the disposition of the dominant tenement as made it no longer capable of the perception of this easement, and that thus they established a new disposition which did not embrace the easement ().

Upon this point it must be remarked, that the natural condition of the few acres in question is not made clear by the evidence. They may have been higher than the Smilie Place, so that water from them naturally flowed over the Smilie place, and would naturally flow into the Smilie canal: or they may, (as is represented in Bacot’s plat,) have been in a basin lower than the lands above or below, so that by nature water was ponded on them, and only the surplus after great rains would now run toward the north. The ditches which once went from them to the Smilie canal may or may not have drained them.

The natural easement, if any existed, was once superseded by' the disposition of the owner of the two tenements : the artificial easement which he created, whatever may have been its extent, existed at the time of the sale to George P. Elliott, and is in no respect entitled to less consideration than if it existed by nature. A right to obstruct it, so far as practicable, might have been granted; but substituted, as it was, for the natural right of property, it is entitled to more favorable regard than are those easements, which are restrictions, upon natural rights. It is clear that no mere non tisei', independent of all change of disposition and of all obstruction, would have destroyed it, or could have done so, without substituting something else equally or more inconvenient to the defendant, which must naturallyhave followed from the necessity of .some outlet for the water between Clark’s dam and Smilie. Strong circumstances only could show an intention permanently to abandon it: and it is unnecessary for us to consider, whether such intention should be inferred from any thing short of that length of adverse enjoyment in obstruction of it, which would raise the presumption of a grant of an easement, or of a right to obstruct a natural incident of property. The acts of George P. Elliott, particularly his filling up the ditches between his land and Clark’s dam, rvere in themselves. very strong ; but we cannot venture to say, that there was such evidence of the consent of the persons, under whom the plaintiff claims, to these acts, that from them, unconfirmed by twenty years continuance, the jury must have found that the easement, claimed by the plaintiff in his new case, has been extinguished.

There are, however, other objections to the plaintiff’s new case, which require no deductions from the evidence that the jury have not drawn.

Where a defendant was not the original creator of the disturbance of an easement, an action will not lie against him until he has been requested to remove the cause of the disturbance which is on his land (); and where obstructions to the plaintiff’s enjoyment of an easement exist upon his own land, and without the removal of these, nothing that the defendant could be lawfully required to do would restore the enjoyment, the plaintiff must remove these obstructions, or show his readiness to do so, before he can require the defendant to do what would be, of itself, insufficient. In this case, the evidence shows that on the eastern edge of the plaintiff’s low ground, below Clark’s dam, the Smilie canal was, before 1832, continued up to Clark’s dam, and that a diagonal ditch ran from a point on the Smilie canal, which point is near to the boundary line between the two tracts, (Middle Place and Smilie,) through this low ground, up to the western end of Clark’s dam. At the junction of this ditch with the canal, a trunk was placed. George P. Elliott went upon the land, now owned by plaintiff, and removed the trunk, and filled up both ditch and canal above the boundary line. To drain in this ditch and canal, according to the condition they were in when the possession of both tenements was in one owner, is the right of the plaintiff, if he has any right to drain through defendant’s land. No obligation is shewn to have devolved upon defendant to remove the obstructions which were upon plaintiff’s land. The plaintiff has, by nothing that he has done, evinced his desire to drain his few acres below Clark’s dam, according to the former scheme of culture: but he caused the defendant’s bank to be cut at a point west of the point where the canal, as it formerly was, would have cut this bank, thus shewing an intention to drain according to some imagined natural right, and not according to the arrangement which had been made for the two tenements : and above all, he cut the bank when the vent through Clark’s dam was open, thus evincing an intention to drain, not his few acres below the dam only, but the whole of his Middle Place. He thus added to an easement which he may have been entitled to, a larger easement which the decision made on the Circuit and herein before approved by us, shews he had no right to. In many cases, the right to an easement is lost by encroachment (). Without, however, deciding any thing on that head, we can see that the obstructions continued by the defendant were necessary to guard him against the larger right which the plaintiff had undertaken to establish, and that the plaintiff' has no right to complain of these obstructions as disturbances of a rightful easement, unless he can shew that the usurped easement could have been obstructed without disturbance of the rightful one. He so blended the two in his attempt to enjoy them, that the defendant could not separate, and might lawfully obstruct both, at any rate until the excess over the right was corrected (). It thus appears that, if the plaintiff had, on Circuit, admitted what we find to have been correctly decided, that he had no right to drain through Clark’s dam, and had there presented only the new case which he has here submitted, he ought, under the evidence which was adduced, to have been nonsuited.

The motion is therefore dismissed.

O’Neall, Evans, Frost and Whitner, JJ. concurred.

Withers, J,

I concur in this opinion: but desire to observe, that I would favour a new trial to the plaintiff, that he might litigate singly his “new case,” (as it is termed,) if I supposed, that the record in this cause, the verdict and this decision, would operate to estop him from testing (if he should so desire) a right to drain, by natural flow, or through artificial substitute, (as the case may be,) over’ the defendant’s premises, so much of the plaintiff’s Middle Place as is situate below Clark’s dam.

Motion dismissed. 
      
      (a) Gale & What, on Easem. 49.
     
      
      (b) Imtirel’s case, 4 Rep. 86,
     
      
      (c) Ford vs. Travis, 2 Brev. 299,
     
      
      
        (d) Mitchell vs. Anderson, 1 Hill, 70.
     
      
      
        (e) Liggins vs. Inge, 7 Bing. 682; Gale & W. on Easem. 354.
     
      
      (f) Pennuddock’s case, 5 Rep. 101; Brent vs. Haddon, Cro. Jac. 555.
     
      
      (g) Garritt vs. Sharp, 3 Ad. & E. 325 ; 4 Nev. & M. 834.
     
      
      (h) Gale & W. on Easem. 374.
     