West

Two material issues were submitted to a jury in this case, namely: “ (1) Is there, through the land of plaintiff, a natural watercourse which leaves the land of plaintiff on the south, and which passes through into the land of defendant? (2) Has defendant caused said natural watercourse to be obstructed by an embankment along the south line of plaintiff’s land?” On both issues the jury failed to agree upon a verdict, and the court did not find upon either of them. Where material issues in a case are not disposed of by the verdict of a jury or the findings of a court, there must be a new trial.

But it is urged that the issues were immaterial, because, besides the averments in the complaint which were traversed by the answer of the defendant, and raised the issues which were not disposed of, it was also averred that the land of the plaintiff “slopes south toward the land of defendant, and the water which passes through the said watercourse and the surface water which falls upon and passes over plaintiff’s land flows upon the land of defendant when allowed to pursue its natural course. ’ ’ The action was for the abatement of a private nuisance caused, as alleged, by the filling up…