This is an action to recover damages caused by flow of surface water diverted by means of a ditch upon land of the plaintiffs. The order of the presiding Justice in the court below was ‘ ‘Plaintiffs non-suit on the stipulation on the part of the defendant that judgment shall be rendered by the Law Court for the- plaintiffs for the sum of Twenty-five dollars and costs if, for any reason, the Law Court shall over-rule the order of non-suit.” - Exception to this order was taken by plaintiffs.

A majority of the members of the court are of opinion that a question of fact, namely, the extent and nature of the ditch, as affecting the rights and liability of the parties, was one which should have been submitted to the -jury; hence the order of nón-suit was error. Exception sustained. Judgment for plaintiffs in accordance with the stipulation.