¶1Notwithstanding that the cause of action set out in the complaint is for negligence, this case was tried and submitted *728to the jury upon the theory of nuisance. The charge of the court failed to present to the consideration of the jury the issues which they should have been called upon to determine. The defendants protected their rights by exceptions duly taken.
¶2Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event.