Note. — Upon the first point resolved in this case, sre to the same effect Carruthers v. Tillman, post 501. The act of 1809, Rev. c 773, points out anew mode of obtainingredress where lands .ire overflowed by a mill pond, which takes away the common law right of suing. unless in the case, specified by the act. Mumford & others v Terry 2 Car. Law. Rep. 425. In proceeding under the act of 1809. if' the Defendant dies, the lo irs cannot be made parties, and the suit must abate, Fellow v. Fulgham, 3 Murph. 254. With regard to the lies nse see Cook v. Stearns, 11 Mass. Rep. 533, cited in the 3d Am. Ed. of Comyns on Cont. 80, where it is said that a verb -1 license, may esouse a trespass upon lands, though it cannot convey any permanent interest in them. The distinction seems to be foundedin justice and does not at all trench upon the rule of law which requires interests in land to be conveyed by deed. A license to overflow a man’s land by a mill,pond would create no permanent right or interest, if only verb-dly given ; but if the grantee of the license does the act, sur<-ly he may justify when attempted to be treated as a trespasser. It is true tile license may be countermanded, and then the grantee must forbear, or he will make himself from that time (what be would have been without a license) a trespasser.
- v. Deberry, 2 N.C. 285, 1 Hayw. 285 (1795)
- v. Deberry.
Case. For nuisance in erecting a.mill. Per curiam, Haywood only present — This action will be for every fresh continuance after a former action brought. It is not usual to give heavy damages in the first verdict, that is chiefly to ascertain the fact whether nuisance or riot. If the party afterwards remains obstinate and a second action becomes necessary, there the damages are usually high. There is some evidence of the assent of the Plaintiff’s father, that Defendant might build the mill; and of a subsequent agreement, that the Plaintiff’s father would rest satisfied if the Defendant would cut down the dam to seven and an half feet; but as no land can be conveyed without deed or other notorious acts, so a man’s lands cannot be charged by any matter of less solemnity. A licence to overflow a man’s land by a mill-ponds *286for this reason, is not good if only verbally given — and this to avoid the clanger* of charging or affecting a man’s real property by suborned oaths.