1. Where a petition, under law relating to damages sustained by the erection of public water mills, alleged "that by the erection of the mill 30 or 40 acres of his land were overflowed, and that by the said overflowing the healthfulness of his plantation on which he resides is greatly deteriorated, the overflowing extending to within 300 yards of his dwelling-house." the plaintiff is only entitled to recover damages for the injury done by inundating his own lands, not for an injury to the health of his family by other parts of the millpond. The plaintiff must state in his petition in what respect he was injured, and his proofs cannot go beyond his allegations.
2. The proceedings under such a petition being in court of law, where viva voce testimony is always preferred, the party has a right to have the attendance of his witnesses taxed in the bill of costs.
3. The jury having assessed in this case but $1 damages, the court did right in giving the plaintiff no more costs than damages under the act of 1833.
DANIEL, J.
The act of Assembly requires, in cases of this kind, that the plaintiff should set forth in his petition "in what respect he is injured by the erection of said mill." This petition states the plaintiff's injury as follows: "By reason of the erection and continuance of said mill by defendant, about 30 or 40 acres of land, belonging to your petitioner, are inundated and overflowed with water; that by the said overflowing your petitioner is not only deprived of the 30 or 40 acres so inundated, but that the healthfulness of his plantation, on which he resides, is greatly deteriorated thereby, the overflowing extending to within 300 yards of his dwelling-house." On the trial the plaintiff's counsel prayed the court to charge the jury that in assessing damages for overflowing the plaintiff's land, if the effect of the defendant's millpond as a whole was injurious to the health of the plaintiff or his family, they should assess their damages for the whole amount of such injury. The judge declined to instruct the jury as prayed for; but he charged them thus: "that if the defendant's millpond had inundated any part of the petitioner's lands, he was entitled to recover such damages as he had sustained by having his lands inundated, and that if they thought the defendant by so covering the land of the petitioner had rendered his plantation unhealthy or uncomfortable, they should give him damages for that injury." We are now asked whether this (235) charge was correct. We answer, in our opinion it was not erroneous. We think that the plaintiff had no right to demand damages for injuries of which he had not stated in his petition "in what respect they had arisen." His probata should correspond with his allegata; and his damages should be the result of that correspondence. It is unnecessary to say whether the prayer of the plaintiff's counsel should or should not have been complied with, if his petition had contained an allegation sufficiently broad to have embraced evidence of an injury of such a description as that spoken of.
Secondly, the defendant insisted that the tickets of the plaintiff's witnesses should not be taxed in the bill of costs; he said that the testimony should have been taken by way of depositions. We think the objection was correctly overruled. The proceedings were at law, where viva voce testimony is never dispensed with if it can be obtained.
Thirdly, the jury assessed the plaintiff's damages at $1. The court in rendering judgment gave the plaintiff no more costs than damages. This we think was right and proper by force of the act of Assembly passed in 1833. The petition was filed at May Sessions, 1834. The Legislature at its session of 1834 passed an act amending the act of 1833; but it was done to obviate a supposed difficulty which might arise on the construction of the first act. We are of opinion, however, that the intention of the Legislature in 1833 is fairly to be seen from that act, that if the plaintiff should fail to recover $5 damages, he should have no more costs than damages. Upon the whole case, therefore, we are of opinion that there was
PER CURIAM. No error.
Cited: Waddy v. Johnson, 27 N.C. 335.
(236)