1. It was error for the court to charge the jury, in effect, that if the recovery by the plaintiff in a former suit was for nominal damages only, then the verdict in that case would be conclusive that there was no substantial damage at any time, and the jury should find for the defendant. The present action was brought seven or eight years after the former one. Why should the failure of the plaintiff to prove any actual damage on *540the trial of his first action cut him off from showing that he sustained such damage afterwards, and before instituting the second? The second action does not apply to the same period of time involved in the first, and as the first resulted in a finding for the plaintiff', that finding surely could not be conclusive in favor of the defendant as to anything involved in the present controversy. It seems to us that its conclusiveness, if it has any which affects this case, would all be in favor of the plaintiff, and would extend to the right of recovery, leaving the quantum of damages dependent entirely upon other evidence and the doctrine of punitive damages. 1 Hill’d on Torts, 608. For the jury to find for the defendant in a second action for a continuous toi’t because only nominal damages were found in the first action, would be very remarkable. Why not find at least nominal damages again, and again, so long as the plaintiff by successive actions seeks to vindicate his right, though he may fail to prove actual damage ? Nothing is needed but a right m the plaintiff and some invasion of that right by the defendant. Code, §§2243, 3065, 3070 ; 1 Sedg. Dam. §§97-99.
2. As the dam now complained of is neither the same dam by which the water rights of the defendant were measured in the several deeds of conveyance, nor located at the same place, but is altogether a different dam and located higher up the stream, perhaps the actual performance of the first dam in the way of backing water would be the safer limit of the defendant’s right to back the.water by the second dam. What would be the capacity of the first had it been made tight would necessarily be more or less matter of conjecture; but what it actually did while in its best condition would be susceptible of proof. It may be that there was a right to improve and tighten that dam, or to build a new and better one in the same place, but that right *541was never exercised, nor can it be certainly known what increase in the height of the water would have resulted from all the favorable changes in that dam which were practicable, such changes never having been made. But conceding that the new dam might, though located higher up the stream, be allowed to raise the water, not only as.high as the water.had ever been raised by the old, but as high as the old dam would have been capable of raising it had it been put in the best possible condition, it was error for the court, in its charge to the jury, to assume that if the new dam was only of the same height as the old one, the two would he equally capable of affecting the lands above by overflow. Two dams themselves equal in height, located at different places on the same stream, would not necessarily equally retard the escape of water. The difference in their width and in the conformation of the land on the shore lines, and various other local conditions, might cause inequality in their capacity for detaining and backing water, and for injuring thereby the lands above. Instead of assuming equality as matter of law, the question whether there would be equality or inequality in the given instance is one of fact for determination by the jury. Where the old dam and the new are on the same ground, and other conditions are equal, the rule announced by the court would probably be correct. Baker v. McGuire, 53 Ga. 245 ; Maguire v. Baker, 57 Ga. 109 ; Oakley Mills v. Neese, 54 Ga. 459.
