It is a matter of regret that the case upon, its third appearance in this Court cannot finally be disposed of; but for error appearing in the present record determinative issues must be submitted to another jury. On the first appeal it appeared that the principal damage complained of resulted from the erection and maintenance of a dam and gristmill on the defendants’ land (186 N. C., 760), and on the second we said: “There is evidence tending to show that the defendants 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 issue 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 defendants to remove the dam, although actual damages are not demanded. If the trespass is continuous it is not necessary to allege the insolvency of the defendant.” 188 N. C., 810. It will be observed upon examination that the opinion draws a distinction between the erection by the defendants of a dam on the plaintiff’s land and the ponding of water on the plaintiff’s land by a dam built on the land of the defendants. If the defendants have constructed a dam on the plaintiff’s land without his permission the plaintiff is entitled to a mandatory injunction for its removal from his premises, and to compensatory damages caused by this trespass, recoverable as at common law, for such a trespass does not come under the operation of C. S., 2555 et seq. Henly v. Wilson, 77 N. C., 216, 221. Rut if the dam is entirely on the land of the defendants and water is thrown back and ponded on the plaintiff’s land, the plaintiff, as pointed out by Holce, J., in the first appeal, must seek relief under section 2555 et seq.
Was the dam or any part of it'built on the plaintiff’s land without his permission? If the jury finds this to be the fact, the plaintiff may enforce the removal of the dam or so much of it as may be on his own premises and recover damages as we have indicated. Did the defendants build the dam on their own land and thereby back the water on land owned by the plaintiff? If so, the statutory remedy must be pursued if damages are sought. The method of assessing damages under C. S., 2557, is fully and clearly set forth in a number of cases. Gillet v. Jones, 18 N. C., 339; Beatty v. Conner, 34 N. C., 341; Bryan v. Burnett, 47 N. C., 305; Hester v. Broach, 84 N. C., 251; Burnett v. Nicholson, 72 N. C., 334; S. c., 86 N. C., 99; Goodson v. Mullen, 92 N. C., 207.
*119It does not definitely appear whether any part of the dam itself is on the plaintiff’s land. There is evidence in support of either contention. The uncertainty seems to arise from the use of language! which confuses the dam proper with the water obstructed by the dam and collected on the plaintiff’s land. The issues submitted do not clearly determine the question. There should be a definite issue as to whether the dam itself or any part of it — not the ponded water — is on the premises of the plaintiff. If it is not, and the plaintiff seeks to recover damages under C. S., ch. 52, art. 4, there should be an issue as to annual damages. Other appropriate issues may be submitted as the trial court may determine.
For the errors complained of there must be a
New trial.