Upon a former appeal the restraining order was dissolved without prejudice to the rights of the plaintiff to renew his motion upon *811definitely establishing tbe facts at tbe final bearing. 186 N. C., 760. Afterwards, tbe canse came on for trial upon an amended complaint, in wbicb tbe plaintiff prayed tbat tbe dam be declared a trespass and a nuisance and tbat an order be issued restraining tbe defendants from wrongful entry upon tbe plaintiff’s land.
Tbe theory upon wbicb tbe action was dismissed is not stated in tbe judgment, but from tbe defendant’s brief, we infer it rests on tbe contention tbat as no damages, annual or otherwise, were demanded in tbe complaint, tbe dam cannot be abated or tbe defendant restrained until damages are assessed under tbe statute.
True, this seems to be a substantial requirement of section 2556 of tbe Consolidated Statutes. Hester v. Broach, 84 N. C., 252. But this section, we apprehend, applies where water is ponded upon tbe plaintiff’s land by a dam constructed on tbe property of another or where a trespass of like character is committed, because at common law an action could be brought each day so long as tbe trespass continued. But tbe statute does not apply and was never intended to apply to an actual entry upon tbe complainant’s premises and tbe construction thereon of a dam for tbe purpose of ponding water and retaining possession.
Tbe unauthorized entry upon tbe possession of another entitles him to nominal damages at least (Lee v. Lee, 180 N. C., 86) and it may be such as to evoke tbe equitable jurisdiction of tbe courts or it may result in tbe creation of a nuisance wbicb tbe law will abate.
There is evidence tending to show that the defendant after invading the plaintiff’s possession, built the dam on the plaintiff’s land, and that the alleged trespass is continuous in its nature. There is evidence to the contrary. the issues raised should be submitted to the jury and the verdict will determine the questions whether the defendants have committed the alleged trespass and whether the plaintiff is entitled to an order restraining a continuance of the trespass and a mandatory injunction to compel the defendant to remove the dam, although actual damages are not demanded. If a trespass is continuous it is not necessary to allege the insolvency of the defendant. C. S., 844; Lyerly v. Wheeler, 45 N. C., 267; Bond v. Wool, 107 N. C., 139; Cobb v. R. R., 172 N. C., 58; Woolen Mills v. Land Co., 183 N. C., 511; 26 R. C. L., 943 (17); 14 ibid., 444 (145); ibid., 453 (153); ibid., 455 (156).
Tbe judgment of nonsuit and dismissal is reversed and tbe cause is remanded for further proceedings.
Eeversed.