Feemer, J.
1 The committee on streets and alleys of the defendant town ordered the drain tile for which plaintiff seeks to recover. It was ordered pursuant to a resolution of the town council granting a petition for an outlet to tile drains, “so that cellars and lots in certain blocks might be properly drained.” The drain in which it was used ran from the southeast corner of a certain block, diagonally across the street, to the block lying southeast of the one first mentioned. From that point it ran in a southeasterly direction across the adjoining block and an alley, to a creek, into which it emptied. It was constructed for the sole purpose of draining cellars, and was laid more than six feet below the surface. At the time it was constructed there was adequate surface drainage for the street, and this drain was not constructed to carry off surface water, except as it might find its way into adjoining cellars. These facts are practically without dispute.
*2682 *267The trial court gave the following instructions: “But if you fail to find that said tile was purchased or used for the *268sole purpose of improving or repairing the streets or alleystkereof, or if you find that the same was purchased and used for the sole purpose of draining private-property, then said town is not liable, even though the council thereof may have subsequently undertaken to- ratify' the same. If you find from the evidence that the tile in. question was permitted by the town of Bennett to be laid across its streets and alleys for the sole purpose or draining, private property, then the same would not be a public improvement of the streets and alleys of said town, and it would) not be liable therefor.” The duty of the jury to follow these instructions is clear. Had it done so, it would have returned a verdict for the defendant. Instead of doing so, it found for the plaintiff. Defendant’s motion for a new trial should have been sustained on this ground alone. — Be-versee».