
    Charles Haymes vs. Robert Gault.
    An owner of land, through which a water course runs, is entitled to ar. action against a person for diverting the water from his land.
    Tried before Judge Johnson, Union, Spring Term, 1822. nn
    A HIS was an action on the case, against the defendant for diverting a water-course from its ancient channel. It appeared that a creek was ihe boundary between the plain tiff and defendant, so that each was entitled to the use oí’ the water, orto the center or hall's and on that part of the creek where the stream was in common between the parties, there was a seat worth *51000; and before the defendant built Ills mill ou his side of the creek, the plaintiff had offered to take a fair price for his part of the shoal on that part of the creek where it was in common. Rut this proposition the defendant refused to accede to; and built a mili on bis side, at some distance from the bank : and going above the simal in which the plaintiff was interested, made a dam adjoining to plaintiff’s banfe,- and cut a ditch by winch the water was turned from the ancient channel to the mill, to the great injury of the, plaintiff; as the. water'did not again fall into the old channel, until it. went below the plaintiff’s shoal.
    Ou this testimony the court ordered a nonsuit. From which the plaintiff appealed, and gave notice that he would move this court to set aside the order of the presiding Judge, on the following grounds, viz.
    1st, Because the right of the plaintiff to recover was dearly made out, and the case ought to have been submitted to the jury.
    2d. Because the plaintiff had a legal right to sue the defendant for the wrong done him ; although they might be considered as tenants in common.
    3d. Because the case made for the plaintiff by the evidence, was not a case of damnum absque injuria.
    
   Mr. Justice Richardson

delivered the opinion of the court.

No rule of law can be clearer than that for every wrong done by one man, to the property or legal rights of another, there is a remedy by action of law. Now that a freeholder has a right to the use of a stream of water running through his land, is equally clear. (See 3 Blks. Com. 218. 2 Do. 18, 14, 304: 1 Bac. 84. 1 Wils. 174. 2 Selwyn, 335. 1 Chitty, 192. 1 Coke, 200, and 1 Id. Rayd. 737.)

Thompson, for the motion.

GNndinen. &? Farr, contra.

To interrupt this right, though but usufructuary, by turning the water from its channel through his land, is a direct privation of a right, it is a palpable wrong, of itself; and to erect a bank across the stream, so as to come in contact with the plaintiffs side, is a trespass ; and I will add, that to do these acts after notice, and an offer on the part of the plaintiff to sell, savours of arbitrary power, neither allowable by law, nor to be countenanced among citizens, who have a right to claim the protection of person and property.

It is true, that the actual damages done to the plaintiff may be trifling, and the defendant has, very possibly, much of extenuation for his conduct. He may too, have erected a mill useful to the public ; but having assuredly deprived his neighbour of á right, he must of course, answer for it in an action ai law. Supposing it be even damnum ab-sque injuria; yet in order to support an action, it is enough that the act proved, constitutes any “ damnum,” or violation of legal right. What has been the real injury to the plaintiff, is for the jury to determine, not the court. The nonsuit is therefore set aside, that the damage, whether great or small, may be adjudged by the jury.

Justices No it, Huger and Colcock, concurred»*

Mr. Justice Gantt:

Under the special circumstances oí the case, I think the nonsuit was correctly ordered. There was no proof that the plaintiff had sustained an injury, and probable conse-«uential damages is no ground of action.  