By the Court,
Bronson, J.The defendant has an easement in the plaintiff’s land, and must be allowed to enjoy it in such a manner as will secure to him all the advantages contemplated by the grant. But he must so use his own privileges as not to do any unnecessary injury to the plaintiff. It is evident from the prior right of the state, the small amount of consideration in the deed, and the capacity of the ditch, so far as it has been constructed, that only a very small quantity of water was to be conducted over the plaintiff’s land ; and that the “ water works” or machinery to be erected on the defendant’s lot were of no great extent or importance. I cannot think that a reasonable construction of this grant, which in effect, gives the defendant an unobstructed right of way along the ditch, and 'compels the plaintiff either to throw open his fields, or to erect a fence on both sides of the canal for the whole distance of half a mile that it passes over his land. If the plaintiff may include the ditch in his fields, by extending across the banks a fence which can easily be removed in case of necessity, it does not follow that he can build a stone wall which will wholly exclude the defendant from his water course. The court held that the plaintiff had no right to build any fence that should run across the bank. I cannot see that this is a necessary conclusion of law on the facts detailed in the bill of exceptions. The case should, I think, have been submitted to the jury to say, whether the acts of which the plaintiff complains were necessary to the enjoyment of the defendant’s privileges, or whether he acted wantonly, and did an unnecessary injury to the plaintiff.
II. If the plaintiff succeeded in showing an unlawful entry [ *191 ] *upon his land, or that his fences or any portion of them were improperly thrown down and his fields exposed, he was entitled to a verdict for nominal damages at the least. It was not necessary for him to prove a sum, or that any particular amount of damages had been sustaind ed ; and the charge was in this respect improper. From the pleadings and the course of the trial, it is evident that the action was brought for the pur. *191pose of trying the extent of the defendant’s right. It .is suggested, and is probably true, that a suit was first commenced in a justice’s court, where the defendant pleaded title, and thus made it necessary for the plaintiff to sue in the common pleas. But however that fact may be, every unauthorized entry upon the land of another is a trespass, and whether the owner suffer much or little he is entitled to a verdict for some damages.
Judgment reversed.