
    Williams vs. Gale.
    Appeal from Somerset County Court. Tills was an action on the case, brought by the appellee, (the plaintiffbebnv,) against the appellant, (the defendant below',) for making and erecting a dam and bank of earth in and across an ancient stream of water which ran through the lands of the plaintiff and defendant, so as to overflow, drown, and cover with water, the land of the plaintiff, &c. The defendant pleaded not guilty, and issue was joined. ‘ 1
    Where* natural water cour-e rvn through ihe land* of A. an cl P>, ami A. lit.d, by cutting ditches on his own land, contiguous to the count:, increased the quantity of ^ water which run down tin- course, roíheh’juryoí B’s land, by overflowing: the part ad* joining the water course— Held, that B had no right to erect a hank on his own ¡and, a» the water cou rse, to stop or obstruct the course, in order to prevent such injury, and thereby overflowikii-uuag^ lite land i it
    The defendant at the trial moved the court to direct the jury, that although it should appear to the jury, from the evidence, that there was a natural water course running and leading through the plaintiff’s land,and through the defendant’s land below the land of she plaintiff) yet if it should ap- > , ' pear to the jury-, from the evidence, that the plaintiff, by cutting ditches on his own land, contiguous to the water course,, and making banks, and clearing and cultivating the land, in the occupation and use of his land increased the quantity of water which flowed or run down the water course, in a greater degree or quantity than what would have natu-' rally run or flowed down the same water course, to the injury of the defendant’s land, by overflowing the defendant’s land adjoining the natural course; and that the plaintiff by the said means increased the velocity of the current of the water which came down the water course, to the injury of the defendant’s land, that then and in that case the defendant had a right to erect any necessary bank on and within the limits of his own land, and across the water course, to obstruct the watercourse, and to prevent such injury, and for the enjoyment of the use and benefit of his own land, although the plaintiff’s land should be damaged thereby; and that under such circumstances the plaintiff cannot support (he present action, but that the jury should find a verdict for the defendant. This opinion and direction the court, [Polk, Ch. J. .and Lone, and Robins, A. J.3 refused to give to the jury, but were of opinion, and so directed the jury, that under the above circumstances the defendant had no right to erect the bank to stop or obstruct the said water course, The defendant excepted; and the verdict and judgment being for the plaintiff, the defendant appealed to this court.
    The cause was argued before Nicholson, Eahle, and Johnson, J.
    
      Whittington, for the Appellant,
    contended, that if the water was increased on the defendant’s land, by the ditching of the plaintiff on his own land, the defendant had a right to dam it out; or if the velocity of the water was increased, he had the same right; for the conduct of the plaintiff caused a private nuisance, which the defendant could sue for or abate. He referred to 3 Blk. Com. 5, 218, 220. 1 Morg. Vad. Mec. 178, 180. 2 Morg. V. M. 168. Wigford vs. Gill, Croke Eliz. 269. 1 Bac. Ab. 54; and Richards vs. Gunby, (in the late General Court).
    
      J. Eay'ly, for the Appellee,
    referred to the act of 1790, ch. 3.
    
   JUDGMENT AITÍTRMEB»  