It appears by the uncontradicted testimony that more than 60 years ago the canal was cut which drained the lands now owned by plaintiff and defendants and all other parties along its line; that they all drained into this canal and helped maintain it until 1915.
The plaintiff alleges that the defendants, finding the old canal, to use which they have shown a prescriptive right, had become insufficient, enlarged the same and placed water upon plaintiff to his damage. If the defendants, upper proprietors, desire to enlarge the canal, their remedy was under C.S. 5260 et seq. Under C.S. *Page 2 5274, they could, in a proper proceeding, have had said canal enlarged or deepened with a just apportionment of the costs. (2) Instead of pursuing this remedy, there is evidence that the defendants enlarged the canal according to their own views, and increased the flow of water upon the land of plaintiff, he being the lower proprietor.
There is a clear conflict of evidence as to whether, as a matter of fact, the enlargement of the canal by the defendant has caused damage to the plaintiff.
The case, therefore, should have been submitted to the jury upon the evidence, and the judgment of nonsuit is
Reversed.
Cited: Armstrong v. Spruill, 186 N.C. 20.