
    TURNER HOGWOOD v. JOSEPH EDWARDS and WILLIAM EDWARDS.
    Where a ditch formed the boundary between the lands of the plaintiff and those of A. P>., and an obstruction had been placed therein by the plaintiff, with the consent of A. B., in order to prevent sand from being carried down and choking a ditch of his own; held that Trespass was not the proper form of action to redress an injury (the choking of the plaintiff’s ditch) caused by the defendant’s removing so much of such obstruction, as was upon A. B.’s half of the boundary ditch — the latter having consented to such removal.
    
      (Kelly v. Lett, 13 Ire., 50, cited, distinguished, and approved.)
    Trespass, tried at. Spring Term, 1867, of the Superior Court of Franklin, before Barnes, J.
    
    The evidence showed that there was a boundary ditch between the lands of the plaintiff and those of Mrs. Rebecca Patterson, and that, with the consent of the latter, he had placed in it an obstruction, (viz: a log thrown across, and rails with one end resting upon the bottom of the ditch and the other against the log,) in order to prevent sand from being carried down and choking a ditch of his own which ran into the boundary ditch; that the defendant, who owned land upon both sides of the ditch above the obstruction, by the permission of Mrs. Patterson, removed so many of the rails as were upon her half of the ditch, whereupon the sand passed down and filled the plaintiff's ditch, and caused his land to overflow.
    The corirt instructed the jury that if the defendants removed the obstruction without the consent of the plaintiff, and against his wishes, the latter would be entitled to recover actual damages sustained therefrom, and if there were no actual damages, he would be entitled to nominal damages.
    Verdict for six pence; rule for new trial; rule discharged; judgment and appeal by the defendants.
    
      Davis, for the appellants.
    No counsel, contra.
    
   Battle, J.

We are unable to perceive any ground upon which the action of trespass to et armis can be sustained upon the facts of the case. The defendants did not go upon the land of the plaintiff, nor, in any way, wilfully send down' water and sand upon it. It is therefore unlike the case of Kelly v. Lett, 13 Ire., 50, where the defendant, who owned a mill on the same stream and above one belonging to the plaintiff, wilfully, and with intent to injure the plaintiff, frequently shut down his gates, so as to accumulate a large head of water, and then raised them, whereby an immense volume of water ran with great force against the plaintiff’s dam, and washed it away. In that case, it was properly held that an action of trespass vi et armis was the proper remedy; but in the present case, the facts are that the defendants neither acted wilfully, nor with intent to injure the plaintiff; and, if any damage were sustained by him, it was altogether consequential to the acts of the defendants; and, therefore, the action of trespass on the case would have been the proper remedy.

Under the act of 1858, c. 37, the plaintiff might have joined the action of trespass on the case with that of trespass vi el armis, but he has not thought proper to do so; and, if he had, it would not have availed him in this particular case, because the jury did not find that he had sustained any actual damages. The nominal damages were given upon the mistaken supposition of the Judge that there was a trespass with force and arms.

There was error, and the judgment must be reversed.

Pbr Curiam:. Venire de novo.  