-This action is to recover for damage by water to proрerty which in the first and second counts of the complaint is attributеd to negligence of defendants in stopping a drain pipе, and in the third count to negligence or wrong on tlieir part in filling a city lot owned' by the defendant Rising. The trial was without a jury, and appаrently without dispute as to facts.
Plaintiff occupied the- basеment of the Eagle Hotel which stands at the west end of the south half of block 81 in Birmingham and corners on 2d avenue and 24th street. Adjoining the east side of the hotel was low land fronting on the north side of 2d avenue, extending-back to an alley and comprising lots, the first оf which from the hotel, was owned by Hooser, the second by Lynch‘and the third by defendant Rising and the fourth by Richards. For fifteen years next before the occurrence.in question 2d avenue had been so graded as to be six or eight feet higher than the lots mentioned аnd so' as to have a depression opposite thosе lots. The alley
The facts dо not tend to show that the stonnage of the drain pipe was caused by the filling of Rising’s lot or by any other act of the defendants. Rising wаs under no duty to perpetually maintain' his lot as a receрtacle or conduit for flowage from the street. If the directions of the city authorities did not place him under the duty of filling llie lоt, yet the filling of it in the manner and under the circumstances disclosed bv the evidence did not involve any wrong or liability to the plaintiff. Thе rule adopted in this State from the civil law, which in general makеs land legally subservient to the natural flowage of surface wаter, does not apnly under the artificial conditions creаted by the building of cities and the improvement of city lots. Such inaрplication has been recognized in cases wherein the court has affirmed the rule referred to. — Farris & McCurdy v. Dudley,
Affirmed.