Yeargain v. . Johnston , 1 N.C. 180 ( 1800 )

Possession alone is sufficient to maintain this action against a wrongdoer, and as such the defendants are charged. The gist of the action is a nuisance committed by them upon land in the plaintiff's possession; and as all averments beyond this are immaterial and not put in issue in this action, they need not be proved. The (181) case cited is of a variance in the description of a contract; and the cases therein referred to as warranting the decision of the Court, cannot fairly be extended beyond those cases where records or written contracts are set forth in the declaration; these, if stated at all, ought to be stated truly. The possession here is the ground of the action, and had that been described in any particular way, as derived under lease for years or otherwise, the proof ought to have corresponded with the allegation, but as the seizin of the plaintiff is altogether impertinent it need not be proved.

The plaintiff had a verdict.

NOTE. — The Acts of 1809 and 1813 (See Rev. Stat., ch. 74, secs. 9, 10, 11, 12, 13, 14, 15, 16, and 17) prescribe a peculiar remedy by petition for persons injured by the erection of mills.

Cited: Pace v. Freeman, 32 N.C. 105.

SALISBURY DISTRICT, September Term, 1800.