dissent"> Morris, J.

(dissenting). The plaintiff became a tenant upon a farm located upon the Sheycnne River March 5, 1934. He seeks actual or compensatory damages for injury to his leasehold resulting from pollution of the river by the defendant. He does not seek exemplary or 'punitive damages, and it is doubtful that he would be entitled to such damages under the facts in this case even if pleaded. The only ques *280 tion for the jury to decide was the amount of money which would compensate the plaintiff for the injury which he received at the hands of the defendant. Over the objections of the defendant, the plaintiff was permitted to introduce testimony that in '1927 a committee of farmers living along the river, of which the witness was a member, protested to the officials of the defendant company against the pollution of the stream, and that protests were again made in 1931 or 1932.

The majority opinion justified the admission of this testimony upon the ground that the defendant might have sought to show that the plaintiff acquiesced in the pollution of the stream and that the testimony was admitted in anticipation of a possible defense of acquiescence. Acquiescence was not pleaded as a defense. Upon the record as it existed at the time this evidence was introduced, it was wholly irrelevant to any issue presented by either the testimony or the pleadings. The mere fact that the plaintiff may have thought that the defendant might seek to introduce testimony of acquiescence and thus make evidence of protest admissible in rebuttal, did not make this evidence admissible as part of the plaintiff’s case in chief. The evidence in question was such as to tend to establish a wanton disregard by the defendant of the rights of people living along the Sheyenne River as far back as 1927. The verdict is substantial, and the amount thereof may have been influenced by the irrelevant testimony above referred to. The admission of this evidence was error and not a mere matter of order of proof.

The court instructed the jury upon the general theory of compensatory damages, but those instructions cannot be held to amount to a direction to disregard the testimony concerning the protest, and no specific instruction to so disregard it was given. It was left with the jury for consideration. It cannot be said that it did not enter into their deliberations and affect the amount of the verdict which they rendered.

The plaintiff took the farm which he leased including rights in the stream with the pollution that was actually in the water at the time his lease began. The fact that the defendant had prior to the inception of the lease 'dumped packing house waste into the river thereby creating a polluted condition of the water, and. that such effect may have continued for a time after the plaintiff came into possession of the premises gave him no right to damages. If there had been no further *281 or additional pollution of the stream after the tenancy began, the plaintiff could recover no damages, even though the water continued to be foul and unusable. To the extent of the impurities resulting from previous acts of the defendant, the plaintiff took the stream in the condition which existed at the time he rented the farm. 'He had no right to presume that all previous impurities would be dissipated and the stream magically restored to its natural pristine purity the instant that his tenancy began. There is no presumption that the miraculous will occur. He did, however, have a right to presume that the defendant would cease all further dumping of waste and would prevent pollution from entering the stream from its premises, and that he would receive the benefit of the action of the forces of nature in decreasing the impurities that were already there. He is entitled to damages that will compensate him from the injury resulting from what the defendant did or permitted after the inception of the tenancy, and no more.

The jury awarded the plaintiff damages in the sum of $2,000.00. When we consider the size of the verdict and the facts which go to support'it, it seems highly probable that the plaintiff was prejudiced by the admission of evidence of protests by a community committee. A new trial should be ordered.

Sature, J., concurs in the views expressed by Judge Morris.

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