
    No. 4100.
    Maurice N. Bowman et als. v. The City of New Orleans.
    where certain parties, whoso claims diet not exceed five hundred dollars, united with others whose claims exceeded that sum for each one of them and sued the city of New Orleans for several thousand dollars;
    Held — That haviDg' united in one suit for convenience and economy, and now desiring to sever, they can not thns he permitted to deprive the city of New Orleans of the benefit of an appeal, and that their motion to dismiss can not prevail
    If the proprietor below erects a dam or any other thing which obstructs the natural drainage of the estate above, he can ho compelled to remove the obstruction and to pay damages sustained on account thereof.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.
    
      C. W. Besangon, for plaintiffs and appellees. H. H. Walsh, assistant city attorney, B. F. Jonas, city attorney, tor defendant and appellant.
   On Motion to Dismiss.

Kennard, J.

This case is before us on a motion to dismiss, made by the following parties, plaintiffs, in whose favor judgments were rendered by the court below for various sums, none of which exceeded five hundred dollars, to wit: Africa Williams, Ctesar Small, Lazarus Young, Pennil Small, Joseph Jackson, Charles Small, Spencer Allen, and Harriet Morgan.

The above named parties united with sundry other plaintiffs whose claims exceeded five hundred dollars each, and sued the city of New Orleans for several thousand dollars. They united in one suit for their convenience and economy, and now desire to sever, to deprive the city of the benefit of an appeal.

The alleged damage seems to have arisen from one and the same cause, to wit, from the closing up by the city of certain outlets for water in the embankment known as Camp Parapet.

The city is entitled to consider the total amount prayed for in the petition as the amount claimed from her for one alleged unlawful act; this amount largely exceeds five hundred dollars. Heirs of Ballio v. Prudhomme et al., 8 N. S. 338. In the case of the State ex reí. Murtaugh et ais. v. -Judge Eighth District Court, No. 3445 of the docket of this court, lately decided, the reasoning of the court sustains this view.

Motion to dismiss denied.

On the Mekits.

Wyly, J.

Plaintiffs allege that they are farmers, and their farms are situated above and in the vicinity of a large embankment in the parish of Jefferson, known as Camp Parapet, being a fortification commenced by the Confederate authorities and completed by the Federal troops during the late war; that said embankment runs from the Mississippi river -to the high land, known as the Metairie Ridge; that through this embankment were several outlets or openings to allow the water naturally to drain from their places to the lands below; that in April, 1871, the city of New Orleans illegally caused these openings to be closed, obstructing the drainage of their lands and causing the loss of their crops by the overflow of rainwater ; that by this unlawful act they have been entirely deprived of drainage to their lands, and they have sustained the losses of which they complain.

They pray for damages, and that the city of New Orleans be compelled to remove said obstructions. There was judgment as prayed for, and the defendant appeals. The evidence shows that the city of New Orleans caused the obstruction to the drainage of plaintiffs’ lands, and they sustained the damages of which they complain. The embankment, known as Camp Parapet, is in the parish of Jefferson, and beyond the limits of the city of New Orleans. No authority was given by the police jury of the parish of Jefferson for the closing of the openings in said embankment allowing the rainwater falling on the lands above to flow naturally upon those below.

Article 660 of the Revised Code provides.tbat “it is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude. The proprietor below is not at liberty to raise any dam, or make any other work, to prevent this running of the water.” * * *

If the proprietor below ereets such dam or obstructs the natural drainage of the estate above, he can be compelled to remove the obstruction and to pay damages sustained on account thereof. 19 La. 351 j Revised Code 2315 ; 4 An. 440; 12 An. 15.

The city of New Orleans, having authorized the illegal act of her agents, is in no better position than any other person, and is responsible for the losses sustained by the plaintiffs on account thereof.

Judgment affirmed.  