
    
      Sarah Mims et al. v. John Weathersbee.
    
    Plaintiff’s possession on a tract of land, part of which defendant has flowed with water from his mill-pond, is, by construction, regarded as possession of tire whole, and such possession is sufficient to put the defendant to proof to justify his act.
    To cover land with water gives no pedis possessio, showing adverse right — it is merely an easement, not inconsistent with title in another.
    All objections to a party’s title are waived by one who attempts to show title under that party’s ancestor; and after his attempt has been defeated by the verdict of a jury, it is too late for him to say the title is defective.
    
      Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.
    This was an action on the case for overflowing the plaintiffs’ land. The plaintiffs produced a grant to Reuben Roberts, dated 5th June, 1786, for 80 acres: part of this grant, twelve acres of low marsh or swamp, was covered by the defendant’s mill-pond. The plaintiffs produced and proved a deed from Lewis Bates and wife to Thomas Mims, their ancestor, for the 80 acres granted to Reuben Ro*berts, dated 7th November, 1837. The plaintiffs are the widow and children of Thomas Mims, who died in ’42 or ’43 — he, his widow and children, have been generally in possession of the land.
    In ’38, Haley Johnson, who then owned the mill, took out a grant for 775 acres, and included the Reuben Roberts grant in it. The ancestor of the plaintiffs was present at that survey. Either before or soon after, he covered the lands in question with the water of his pond. The land and mill of Haley Johnson was sold by the Sheriff, in the case of Townsend, Mendenhall 8f Co. v. Haley Johnson, on the 5th June, 1843, and purchased by Steedman & Merrit: they conveyed to the defendant, 5th June, 1845. It appeared, that about the time that Johnson flooded the land, Mims said he had let him have some land, and pointed out the lane, the boundary now claimed for the defendant, as that to which he had sold. About the sale, by the Sheriff, he said to other witnesses he should lose largely by Johnson, and in particularizing his loss, he said he should lose the price of the land he had let him have: one of the witnesses asked him if there were no chance for him to save himself — he said there was none — his wife had not relinquished her dower, and should not. To another witness he said he had made rights for the land to Johnson — he was sorry for it, and would not do it again if he had it in his power. To another witness he complained of his loss, and showed the corner. It appeared, too, 'that the plaintiffs had in their possession a deed from Haley Johnson to Thomas Mims for 8 acres of land; to dam and pond upon. To this testimony was, however, opposed the following facts: To Mr. Jowers, Mims, just after the Sheriff’s sale, said if he had known Johnson’s land was to be sold, he would have attended, and forbid the sale. A Mr. Bell proved that he heard a conversation between Johnson and Mims, in which Johnson spoke of drawing off his water. — -Mims objected — Johnson said he would not draw off the water until after frost — Mims told him if he did, he should never back the water on his land again.
    
    About the time of the defendant’s purchase, when he was in the act of repairing the dam, Mrs. Mims gave him notice not to raise the water on the land. He, however, did so.
    Johnson, the former owner of the mill, is alive, in an adjoining State — he had been at Barnwell since this suit, and the plaintiffs would have given in evidence his statement, since the sale, that Mims never executed titles to him: but the defendant objected to the proof, and it was excluded.
    The erection of the mill-dam, and the consequent flooding of the land, had rendered, some of the witnesses said, the plaintiff’s place unhealthy. Dr. Haigood, however, said the effect of a pond, in that respect, was very doubtful, and he thought the covering of such land as that of the plaintiff was of more benefit than injury to health. The land, it was proved, was worth very little.
    The PresidiNG Judge says: The jury were instructed that the plaintiffs’ title to the land was sufficiently shown, by the adduction of the grant to Roberts, and the deed from Bates to their ancestor, with possession. If this had, however, been insufficient, the defendant’s proof showed that his title, if any he had, was derived from their ancestor, and therefore there could be no reason to question the plaintiffs’ title in such a case as this.
    If I did not in terms say, that the grant to Johnson could not avail the defendant, I certainly in substance so charged and ruled, when I said to the jury that the defendant’s de-fence rested upon the question whether he had shown such facts as would create a presumption that Mims had executed a deed to Haley Johnson. This question was fully and fairly submitted to the jury. They found for the plaintiffs $15 damages.
    The defendant appealed, on the grounds following:
    1. Because the plaintiffs did not prove either sufficient title or possession to the land in question, to maintain the action.
    2. Because the defendant showed a right to overflow the land in question, the proof being ample and full that Haley Johnson and Thomas Mims (of whom plaintiffs are the heirs at law,) had exchanged lands, and that said Thomas Mims had executed a deed to that effect.
    3. Because no damages were proved.
    . 4. Because his Honor erred in not. charging the jury on the question whether the defendant’s legal title to the land under the grant to Haley Johnson (which covered the very land overflowed) did or did not constitute a bar to the recovery of the plaintiffs, who failed to prove their title.
    5. Because his Honor erred in not charging that the defendant’s legal title to the land under the grant to Haley Johnson (which covered the very land overflowed) was a bar to the plaintiffs’ recovery.
    6. Because the verdict was contrary to evidence.
    7. Because the verdict was contrary to law.
    Bellinger, for the motion.
    A. P. Aldrich, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

The possession of the plaintiffs on the tract of which the ground covered by the defendant’s mill-pond was part, by construction is regarded as possession of the whole, and there is no doubt that such a possession was enough to put the defendant to proof to justify his act. Indeed the ancestor of the plaintiffs had at one time the possession of a field on the eighty acre tract granted to Roberts, and cultivated it for many years; when he ceased the cultivation, did not appear. But there was no subsequent cultivation on the land by Johnson, or any one under him. The only thing which was done, was to flood the land with water. This was no pedis possessio, evidencing adverse right — it was merely an easement, not inconsistent with the title in another. Looking at these facts, there is no pretence that the plaintiffs’ possession, prima facie, was not enough for the maintenance of their action. When they, however, in addition to their possession, showed the grant to Roberts, and the deed from Bates and. wife, purporting to convey that grant, they showed enough to defeat the adverse title set up by the defendant, under the junior grant. For that grant, for so much of the land as was covered by the grant to Roberts, was void. But all objections to the plaintiffs’ title were waived by the attempt of the defendant to show title under their ancestor. This he failed to do to the satisfaction of the jury, and it is now too late to say that the plaintiffs’ title was defective.

The whole Court concurred.

Motion dismissed.  