BIRNEY & BIRNEY for plaintiff: 1. The defendant is liable, as having stopped a natural watercourse. After the building of the sewer and the raising of North Capitol street, the springs and the falling rain water continued to flow into the channel as before. This was a watercourse, according to all the authorities. Washb., Eas. & Serv. (2d ed.), 268, 272; 6 Wait's Ac. & Def.. 258, and cases; Angell on Watercourses, 126-141, and cases. 2. The result of the defendant's action in the premises was a direct invasion of the plaintiff's property. This is a taking within the meaning of the Constitution for which the plaintiff is entitled to compensation. St. Peter vs. Denison, 58 N. Y., 423; Pumpelly 8. Green Bay Co., 13 Wall., 181. FRANCIS MILLER and HENRY E. DAVIS for defendant: The defendant is not liable, as the damage was caused in the prosecution of a public improvement, involving change of grade of public streets. There is nothing in the case to take it out of the well-known general rule. The defendant rightly assumed that the plaintiff, and all other lot owners in the square concerned, would conform their premises to the new grade. If this had been done, the channel of the former stream at that point would have disappeared, and the damage occasioned the plaintiff would have been impossible. A public improvement which involves the utter annihilation of a stream, does not stop the stream in the sense in which a city is liable for damming a watercourse so as to flood the land of the citizen. Mr. Justice JAMES delivered the opinion of the court. In this case the plaintiff claims that the District of Columbia, in constructing a street which crossed a ravine, blocked up and stopped a waterway, thereby causing the formation of an extensive pond, which overflowed his premises. In his declaration he states two causes: first, that there was a natural stream fed by springs; and, secondly, that the same conduit at the bottom of the ravine was the waterway for the surface drainage. But he, finally, stood upon the latter ground, for the testimony showed that the spring stream had been diverted far above that by a sewer, and that, substantially, the water-course spoken of consisted of the intermittent flowing of the surface water after it had drained down off the surface of the adjoining land into this stream bed. He cited cases to show that the arresting of the flow of the natural stream, in cases of that kind, made the municipality responsible. Then he proceeded to argue that if there was a stream, formed, it is true, by surface water, there was no distinction between the two; that it was the arresting not of surface water, but of a stream. And he cited a case (Rose vs. St. Charles, 49 Mo., 509) where the court had held a municipality responsible for arresting a stream which during part of the year did not flow. He also adduced a passage from Judge Dillon's work on Municipal Corporations, in which a doubt is expressed of the propriety of the ordinary rule when it was applied to the formation of a pond under these circumstances. But the author gives the cases in a foot note, remarking that the authorities thus far were rather the other way. For the time that it flows this is a stream of water, but the whole circumstances are the result of the formation of a piece of land below grade, and although the flowage does thus accumulate at the bottom of a ravine, and does temporarily constitute a stream, we feel obliged to regard it as the method of action of surface water produced by the surface form of the land. We do not, therefore, perceive any reason for holding the municipality for results which were caused primarily by the situation of the land below grade. 1t can hardly be said that the municipality has produced this injury, when an intervening fact occurs, namely, the situation of the land below the grade. If the owner of the land chooses to remain in that condition, he may lawfully do so, but he takes the consequences of his situation. We think, therefore, that these circumstances would not impose any liability on the part of the city when it comes to exercise its lawful power of making streets on a certain grade. For these reasons we affirm the judgment. INDEX. ACTIONS, LIMITATION OF. See Limitation of Actions. ACTION, RIGHT OF. Where a public sewer is built, without right, upon land, the right of ADMINISTRATORS. See Executors and Administrators. ADVERSE POSSESSION. See Color of Title. AGENCY. See Principal and Agent. ALIMONY. See Equity, 3. AMENDMENT. See Appeal, 2; Decree, 1; Pleading and Practice. 1. A decree may be amended so as to allow costs to the party enti- 2. A decree may be amended or corrected on motion where the APPEAL. See Pleading and Practice, 13. 1. In an ordinary case of a decree against two joint defendants, one 2. A party who moves the court by petition to alter one of the pro- Vincent v. Vincent, 320. ARREST OF JUDGMENT. See Pleading and Practice, 13. ASSESSMENT, SPECIAL TAX, See Special Assessment Tax. ASSETS, MARSHALLING OF. The rule in regard to marshalling of assets does not apply to a case ASSIGNMENT. 1. Where an assignment is made by a debtor to a third person as 2. In such case the money is no longer under the control of the debtor, ATTACHMENT. See Assignment. AUDITOR. Where the auditor files with his report alternative statements of an AUTREFOIS ACQUIT. 1. The courts of the United States are invested with power to deter- 2. But this discretionary power to discharge the jury during the 3. Fourteen indictments were found against the defendant for em- |