Overton v. . Sawyer

46 N.C. 308

• Court: Supreme Court of North Carolina
• Decided: June 5, 1854
• Status: Published

Opinion

PeáRSON, J.

Without reference to the acquisition of the easement by prescription, the defendant had a right to have the water allowed to pass off of his land through the natural drain; and when tbe plaintiff, by means of the embankment across this natural drain, obstructed the water, and interfered with this right of defendant, the latter had a cause of action against the former, for causing the obstruction. Instead of bringing an action, he removed the obstruction. It may be, that Chamberlain might have maintained an action against him, for coming upon his land; but we can see no ground upon which the plaintiff can maintain an action against him, for merely undoing that which the plaintiff ought not to have done. If a man turns his hog into the cornfield of a neighbor, and the latter pulls down the fence and drives the hog out — doing no unnecessary damage, can he be sued for doing so, upon the ground that he ought to have let the hog alonei, and brought an action for the trespass ? There is no error.

Judgment affirmed.