LEVY, J.
(after stating the facts as above).
[1]
The appellant insists that the court erred in not giving, as requested, a peremptory' instruction to the jury to return a verdict in its favor. The right of way deed from the ap-pellee to the town of Jacksonville expressly gave the right to take up, repair, and replace the pipe line laid under the waters of the pond on the appellee’s land; and this authority so given may include the power to the city to drain the waters of the pond so far as may be reasonably required to be done to repair or replace the pipe line as needed. But the recovery allowed in this case is not for a diversion or loss of water without compensation. The point at which liability in the case begins and must entirely rest is the alleged tort on the part of the town authorities in unnecessarily draining all the waters from the pond, resulting in tire destruction of the fish as well as doing other peculiar damage to the appellee. The particular allegation in the petition is:
“Without plaintiff’s consent or knowledge the said defendant deliberately and negligently broke the dam and spillway and other impounding devices in such manner as to draw off all the water from the said pond, leaving the same entirely dry and thereby destroying plaintiff’s boats of the reasonable value of $100, and destroying his fish and the pond, and that same has never since been as valuable and suitable as a fishing place and fishpond or for bathing or boating; that by the exercise-of ordinary care defendant could have repaired said leak or broken place in the line without injury to the plaintiff, but negligently failed and refused to exercise care for that purpose.”
[2]
The fish and the boats in the lake belonged exclusively to the appellee. And therefore the question was, Could the break in the pipe line have been readily fixed, as appellee claims and testified, “without letting all the water out of the pond”? And in view of the testimony it was a jury question of whether or not the draining of all the water from the pond was properly required under the, circumstances. The court, it is concluded, did not err in refusing the peremptory instruction. The court did not refer the question to the jury, but rather himself decided, as involved in the judgment, that the appellant in point of fact negligently drained all the water from the pond; but no complaint is based on appeal upon the court’s action in this particular respect, and we do not review that question.
The sixth and seventh assignments of error should be, it is concluded, overruled. Por there is evidence authorizing the court to submit to the jury for decision the amount of damages sustained by the appellee as a proximate result of the negligent draining of the waters from the pond. Any particular item of damages was not specially challenged in the objection or by assignment of error.
[3]
An agreement between appellee and the railway company that the appellee could use the pond for boating purposes, could keep fish therein, is not a matter necessarily required by law to be in writing to be effective between the parties. And the appellee testified outside of the agreement that he was, as alleged in. his petition, the owner of the fish and the boats in the pond. Therefore the first, second, and third assignments do not, it is thought, present such error as requires a reversal of the judgment. Rule 62a (149 S. W. x).
[4]
The instruction complained of in the eighth assignment of error is a mere abstract statement, and the jury were not asked by the court to make a finding thereon; neither did such statement pertain to the issue that was submitted to the jury. There is no such injury resulting as warrants a reversal; therefore the assignment is overruled.
The judgment is affirmed.
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