Thomas

This action is brought to recover damages suffered by reason of a dam constructed by defendants, which had the effect to hack up and cause certain waters to sub-irrigate and injure and destroy the celery crop of plaintiffs. On a trial without a jury the plaintiffs had judgment for $982 and costs. The defendants appeal from the judgment, and from an order denying them a new trial.

The plaintiff Thomas owns a certain forty acres of land in Orange County, upon which the plaintiffs, under an agreement between them for cropping the land on shares, had growing some eleven acres of celery. The story of injuries complained of is aptly told in the findings of the court, the important parts of which are as follows:—

The first and main contention of appellants is that “plaintiffs showed no right to maintain their ditches and to drain water into the Freeman River and the bay through their ditches, and hence cannot complain of the obstruction to the flow of water therein.”

In considering this question, it may be well to notice in tb.e beginning that this is not an action in equity to restrain defendants from maintaining their dam. It is an action to recover only for an actual loss and…