The opinion of the court was delivered by

We do not find it necessary to pass upon the exceptions of the defendant, as the plaintiff is clearly entitled to have the cause opened upon his excjptions.

The charge of the court, that if the jury found that the defendant diverted the water of the brook, as claimed by the plaintiff, the plaintiff could not recover unless he sustained some damage thereby, as we understand it, was, we think, erroneous. We understand the court to require proof of actual damage, but the law will imply damage from a wrongful diversion of a stream of waterj though only nominal. This is fully shown by the authorities cited by counsel. The court should at least have directed a verdict for the plaintiff for nominal damages, if they found the diversion of the surface stream of water to be as claimed by him to have been made.

If there was no claim for actual damages there was nothing for the jury relative to damages; if there was, the case should have been submitted to them with proper instructions.

The judgment must be reversed and the cause remanded.