As was said on tbe rebearing of Peele v. Powell, 161 N. C., 50, 76 S. E., 698, there is no division in tbe Court as to tbe correctness of the propositions of law first announced herein, but upon a fuller consideration of tbe record, tbe conclusion is now reached that tbe judgment of tbe Superior Court should be upheld.
Tbe plaintiff’s land is on Puzzle Creek, a tributary of Second Broad River. It is eight miles above tbe defendant’s milldam. It is not alleged that tbe waters of tbe river, or of tbe creek, were ponded back upon plaintiff’s land, thus creating a trespass as in tbe cases originally cited and relied upon, see Clark v. Guano Co., 144 N. C., 64, 56 S. E., 858, but tbe allegation is that tbe defendant’s dam has caused tbe flow of tbe water in tbe river above tbe dam to be impeded and slowed up, and caused sand carried by tbe river to be deposited in tbe river bed, which in turn has impeded and slowed up tbe flow of Puzzle Creek, and caused sand and other debris carried by tbe creek to be deposited in tbe creek bed until “it is now impossible to drain plaintiff’s land.” See Sink v. Lexington, 214 N. C., 548, 200 S. E., 4.
With tbe allegations of negligence eliminated on tbe bearing and tbe plaintiff stipulating “tbis case may be tried upon tbe theory of permanent damages,” it would seem that tbe validity of tbe trial should be sustained. Tbe jury, after bearing tbe evidence and viewing tbe premises, answered tbe issue of liability in favor of tbe defendant.
Our first impression is not confirmed by tbe above portions of tbe record and a further critical re-examination of tbe transcript. Fortunately tbe rule permits a correction of tbe inadvertence without tbe necessity of another trial in tbe Superior Court. Rule 44 of tbe Rules of Practice, 213 N. C., 832; Carruthers v. R. R., 218 N. C., 377.
Petition allowed.