¶1The gist of the plaintiff’s claim for damages, as set out in the declaration, is, that the drain was obstructed, whereby water was caused to flow back, to the injury of the plaintiff’s premises. No averment is made by which the refusal of the defendant to permit the plaintiff to enter on the defendant’s estate and examine the drain is made a substantial ground of damages, nor does it appear by the exceptions that any claim was made at the trial to support the action for any cause other than the alleged obstruction in the drain, which the defendant would not suffer- the plaintiff to remove. The allegation of the right to examine the condition of the drain is made only as incidental to the main averment, that the drain was obstructed ; and the refusal of the defendant to allow it to be examined is averred only as one of the causes which prevented the plaintiff from clearing out the passage for the water, so that it might flow off freely. Under a count so framed, the plaintiff cannot ask to maintain his action solely on the ground that the right to examine the drain was denied to him, and for that cause only to recover nominal damages.
¶2It follows from this view of the cause of action, as set out in the declaration, that the jury in finding that there was no obstruction in the drain have negatived the existence in fact of the whole cause of action, and that, conceding to the plaintiff all the rights he claims in the defendant’s premises, he has been unable to show any violation of them according to the averments in his declaration. Exceptions overruled.