delivered the opinion of the court.
This cause was formerly before this court on demurrer, and will be found reported in 94 Miss. 893, 48 South. *344238. It is a suit in which appellants seek to recover of appellee damages alleged to have been sustained by reason of a portion of their land, adjoining appellee’s right of way, being overflowed with water, on account of appellee not maintaining an outlet as it had contracted to do. The second count of the declaration, and the contract entered into between appellee and W. L. Lackey, will be set out in full by the reporter.
According to the bill of exceptions, “after the jury had been duly impaneled and accepted by both sides, the jury was here retired, and the defendant moves the court to strike out certain parts of the second count of both declarations, these parties in their declarations setting up facts of the original lawsuit between W. L. Lackey and the railroad company, and all the papers pertaining to that suit, etc.- — everything relating to that suit — and wé desire the court to strike out the whole of the second count.” In ruling on this motion, the court used the following language: “I don’t think any testimony about this judgment is competent. The agreement itself shows that there was a controversy between them, and the mere fact that there has been a lawsuit between these parties I don’t think is competent. The court will therefore sustain the motion.” A motion of this character should not be made orally, but should be in writing and filed with the clerk, and the judgment of the court, overruling or sustaining it, should be entered on the minutes. In the absence of such an order entered on the minutes of the court, the declaration remains as it was originally written.
It is impossible for us to ascertain from this declaration whether evidence of this judgment was admissible or not. If the one hundred and fifty dollars referred to in the contract, and the work to be done by appellee, was in satisfaction of this judgment, then this satisfaction of the judgment was a part of the consideration of the contract and could have been proven; but if this contract related only to the settlement of damages which had *345accrued since the rendition of the former judgment and damages to accrue thereafter, then evidence of the former judgment was irrelevant and not admissible. We say this much in view of the fact that a new trial must be granted on another ground.
The gravamen of appellant’s complaint is, not that this land would not overflow at all if this ditch was kept open, but that when it did overflow the water would be conducted off of it by the ditch, if kept open, before any damage could be done to the land or to the crops growing thereon. It is clear from the evidence of both appellants and appellee that this land' has always overflowed, and will continue to overflow, during periods of high water, irrespective of whether the ditch is kept open or not; but it also appears from the evidence introduced by appellants, apparently without contradiction, that if the ditch is kept open it will conduct the water off of the land in a short time, and that no damage will result therefrom. It also appears from the evidence introduced by appellants, also apparently without contradiction, that for several years after the execution of this contract appellee did keep this ditch open, and that during all of that time, although the land continued to overflow during periods of high water, no damage resulted to either the land or the crops thereon, for the reason that the water was quickly conducted off of the land by the ditch. Since the ditch has been allowed to fill up, this overflow water, having no outlet, remains on the ground, soaks in, and consequently ruins the crops. The third instruction, granted by the court at the request of appellee, therefore eliminated from the consideration of the jury one of the principal factors in appellant’s claim for damages.
The error in granting this instruction not having been cured by any other instruction granted for either side, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.