
    John Marsh v. Iverson L. Brooks and others.
    
      Before Mr. Justice Earle, at Edgefield, Spring Term, 1834.
    . Where the rectcd^a Sam a“°“h aw®‘rc“t™ boundary be-extended it le-f“naant’sHnd^& h!ssid™inconse-¡STpart:on'lhe plaintiff’s side ^'quantity of timber and a by the^waterl dant was justm-¡,1} '\°ff gainst him for tafned”^Tim plaintiff' •'
    This was an action of trespass for cutting and breaking the plaintiff’s mill dam. The plaintiff and the defendant, Brooks, were the proprietors of adjoining tracts of land, separated by Horse Creek, which was their common boundary. The mill an d dam were on that stream. The plaintiff had at a former period, it was not distinctly proved whether at the time the mill was built or not, set up some claim to the land now held by defendant, Brooks, or had at least made himself liable to an action for building the dam, or for cutting timber. An action for trespass to try titles had been prosecuted against him, and a recovery had at Spring Term, 1832. A writ of habere facias possessionem was executed on the 15th of August, 1832, putting ' the defendant, Brooks, in possession of the land. The dam extended across the creek and the ground to the termination or foot of the high land on either side, and a portion of it, perhaps half of it, lay on the defendant’s side of the creek. After the-execution of the writ of habere facias possessionem, the exact time was not proved, but within the course of the autumn or early part of the winter of 1832-33, the defendant, Brooks, cut through the dam on his own side, between the channel of the creek and the end of the dam at the foot of the hill. The force of the water in the pond, thus let loose, swept away directly the whole of the dam between that point and the creek on the defendant’s side, and necessarily and inevitably extended its ravages for a considerable distance beyond the creek on the plaintiff’s side, carrying away, according to the estimate of the witness, more than two-thirds of the plaintiff’s portion of the dam. The plaintiff had in his pond and about the dam, a considerable quantity of timber, sawed and ready for being sawed, which was carried away and scattered through the swamp below. He had built a bridge across the creek, immediately below the mill, which was also carried away. It was in proof that the mill was valuable, and the plaintiff’s only means of support, and that it was out of employment more than a year. The defendant, Brooks, has a mili on the same creek, below. The defendants, William and Thomas Roberts, were present at the cutting of the dam.
    
      The defendants moved for a nonsuit, on the ground than an action could not be sustained ; or if an action could be main. tained, it must be case and not trespass. His Honor overruled the motion, and held that as the act was done with force, wil-folly for the purpose of destroying the dam, and with a knowledge of its effects, and as the injury was immediate, trespass was the proper remedy. The jury found a verdict for the plaintiff, and the defendants appealed, and now renew their motion on the ground taken below.
    
      Bauskett, for the motion.
    If any action will lie, case is the proper one. It is conceded that the defendant, Brooks, had a right to break down the dam on his own land — the act in itself was lawful, and the injury results from the manner of doing it. When the injury is the mere consequence of a lawful act, case, and not trespass, is the remedy. Angel on Water Courses, 78, 80; Sel. 333, 365; 3 Bur. 1114; 1 Strange, 635 ; Lord Kay. 1399; 18 Johns. Rep. 92; 11 East, 574. But the defendant, Brooks, had the right to abate this nuisance; and he adopted the only practicable mode of doing it. And if the plaintiff, with a full knowledge of Brooks’s right to cut away the dam, chose to subject his property to the risk of Brooks’s exercising this right, it is his own folly, and he must abide the consequence.
    
      Waddy Thompson and D. L. Wardlaw
    
    contended that the true criterion to determine the action was, to inquire whether the injury was direct and immediate, or remote and consequential; that in this instance the injury was the direct consequence of the defendant’s act, committed with force — that admitting that the defendant might lawfully cut away the dam on his side, he should have done so in such a manner as not to work an injury to the plaintiff; that its being done in a wilful manner, and inten. ded to work the injury which is its immediate consequence, trespass is the proper remedy. And they cited 1 Sel. 453 ; 3 East, 393; 2 Camp. 465; Strange, 596; 6 T. R. 225; 3 Wils. 411; Bacon’s Ab. Trespass, note, a; State Rep. 113.
   Johnson, J.

The arguments of the counsel have been principally directed to the question whether case or trespass was the proper remedy for the injury which the plaintiff is supposed to have sustained. But that question will be superseded by the inquiry whether any action will lie for the supposed injury.

The rule, I take it, is very clear, that no action lies for an injury which has arisen from the plaintiff’s own folly, nor where' the injury results from an act justified by the previous unlawful act of the plaintiff.

Thus, if two men have adjoining lands, one build his house so near the land of the other that his windows look into the lands of the other, yet may his neighbour build a house on his own land and obstruct the lights, unless it bo an ancient house, for cujus est solum, ejus est usque ad cmlum; and it was folly in the first to build his house so near the land of the other. Bury v. Pope, Cro. Eliz. 118. So if one throw grain or money into my heap, and it cannot be distinguished how much belonged to each, I may talio the whole, for it was his folly that rendered my rights uncertain. Com. Dig. tit. Trespass, D. So if a man imprison me of his own wrong, I may justify breaking doors or windows to get out; or if my neighbour, by negligence, suffer his house to be on tire, I may justify pulling it down to save my own which is adjoining. Com. Dig. Trespass, D. A parent or husband may justify a battery in defence of the wife or child. Seward v. Basely, 1 Ld. Ray. 62. So he may justify the battery of one who endeavours wrongfully to dispossess him of bis lands or goods. 1 Haw. P. C. 130.

What is this case ? Horse Creek was the common boundary between the lands of the plaintiff and the defendant. The plaintiff constructed a mill dam across it, partly on his own and partly on defendant’s soil, and the water collected in the dam overflowed a portion of defendant’s land. The right of the defendant to destroy the dam built upon his own soil, and to draw off the water which covered it, is conceded — any one has the right to abate a nuisance erected on his own soil. What more did the defendant do ? He cut the dam on his own side of the creek and nothing more. But it is said that the destruction of a part of that portion of the dam which was erected on the plaintiff’s own soil, and the loss of the timber collected in the pond, and the bridge erected below, which confessedly be. longed to the plaintiff, was an injury for which the defendant is liable.

The plaintiff knew, or will be presumed to have known, for every one will be presumed to know the law, that he had no right to erect a dam or to flow the soil of the defendant. He will for the same reason be presumed to know that the defendant had the right to cut the dam and draw off the water ; and the result shews, what he might reasonably have anticipated, that the consequence would be the destruction of the dam and bridge,' and the loss of the timber collected in the pond ; and his folly is precisely that of the man who built his house so near the land of his neighbour, that a house subsequently erected by the latter obstructed his lights.

Again. The act of the defendant in cutting the dam was necessary and justifiable to draw off the water which had been collected by the unlawful act of the plaintiff on his soil. The injury sustained is like that of him who, attempting to dispossess another of his land, or despoil him of his goods, gets his head broke — It is damnum absque injuria.

I agree that if in the execution of a lawful act one does an unnecessary or wanton injury to another who is the aggressor, it is notwithstanding actionable, as when one who has received a slight assault beats the aggressor unmercifully; or when an injury results from the careless manner in which the act is done j and that upon this principle the defendant here is liable, if the loss sustained by the plaintiff is the result of wil-fulncss or carelessness.

The right of the defendant to draw off the water which overflowed his land, being conceded, the question arises in what way ought he to have exercised it. None of the witnesses speak of any other practical mode, nor has any other been suggested in the argument, than by cutting the dam,and none other has suggested itself to my mind. Flood-gates are some times constructed in dams for the purpose of drawing oif the water ; whether in this or not, does not appear, nor whether they were on the defendant’s side of the creek where he could approach them without committing a trespass on the plaintiff. He resorted then to the only practical mode of freeing himself from a nuisance which the plaintiff had erected — to repel a wrong done to him by the plaintiff — the injury sustained by the plaintiff was the result of turning loose a flood of water which he himself had wrongfully collected on the soil of the defendant, and he must bear the consequences.

It struck me that the defendant ought to have given notice to the plaintiff' that he intended to cut the dam, for the purpose of enabling him to draw off the water with the least possible injury to himself; but I am satisfied upon reflection that there was no obligation to do so. The plaintiff had sufficient notice of the dissentofthe defendant to the erection and continuance of the dam. He had sued him and recovered for that injury, and it was his duty to have removed it of his own accord. No notice that the defendant wished the nuisance removed could have been more certain or better calculated to procure the desired result, and the plaintiff ought to have profited by it.

I am therefore of opinion that the motion for a nonsuit ought .to be granted.

O’Neall and Harper, Js. concurred.  