
    Wilkie v. White.
   Hill, J.

The petition alleged, that the defendant owned a tract of land on which there was a dam which interrupted the natural flow of a stream of water and caused the water to be backed up, whereby the bed of the stream was filled with mud and sand; that the dam had not been properly drained, and the defendant had allowed mud, trash, and logs to accumulate at and about the dam, a part of which logs and trash went up the stream for about seventy-five yards; that the defendant had not properly drained the dam, and if he had done so damage could have been avoided; that the plaintiff notified the defendant that he was suffering damage, “and that defendant has refused and has not cleaned or drained said dam, and that his act in not doing so, but allowing mud, trash, and logs to accumulate in same, causes an overflow of petitioner’s land and damages petitioner;” and that, “on account of the damming up of said creek, and not draining same, but allowing it to be filled , with mud, trash, and logs, all of which has been done by the defendant,” water has been backed upon the land of the plaintiff, causing damage. The evidence showed without controversy that the dam was built upon the land before the defendant purchased it, and that what was relied on as a demand for abatement occurred less than two years before the suit was brought. Held, that whether upon one or more theories contained in this petition a recovery might have been had for some amount, yet, under 'the pleadings as actually drawn and the evidence, the verdict for four hundred dollars was not authorized.

November 11, 1915.

Action for damages. Before Judge Patterson. Cherokee superior court. September 26,1914.

W. D. Mills and J. Z. Foster, for plaintiff in error.

A. W. White and Clay & Morris, contra.

Judgment reversed.

All tlie Justices concur, except Beck, J., absent.  