
    No. 1896.
    Isaac Bloom v. Fred Schonekas.
    Where a case involves only questions of fact and the testimony is conflicting, judgment will be given in favor of the party having the weight and preponderance of evidence, and in a case where the plaintiff has tailed to establish his allegations of fact by evidence, judgment will he given for the defendant.
    APPEAL from the Sixth District Court of New Orleans. Fmerson, Judge of the Third District Court, presiding.
    
      .Face, Foster & F. T. Merriclc, for plaintiff and appellant. T. J. Scmmes, for defendant and appellee.
   Wyly, J.

The plaintiff alleges that his lot, on which his residence is situated, fronting on Melpomene street, is contiguous in its rear to the rear of the lot of the defendant, fronting on Camp street; that formerly the waters falling on the defendant’s lot flowed from rear to front, on Camp street; but that he has so raised and elevated the grade thereof, that the front part is higher than the rear, and failing to construct gutters to drain the rear' of his said lot,'the waters falling thereon flow into and upon the adjoining lot of the plaintiff, causing him great damage, not only to the shrubbery and flowers of his garden* but also to Ms dwelling house, the foundation thereof being greatly injured by the dampness and water thus flowing under it. He prays that tho defendant be compelled to construct proper drainage on his said lot, so as to turn the flow of the waters falling thereon to its natural course over his own property to Camp street, or otherwise prevent its flow on the premises of the plaintiff. He also prays for one thousand dollars damages, with interest from judicial demand.

Tho defendant pleaded the general denial. There was judgment for tho defendant, dismissing tho suit, and the plaintiff has appealed. The questions presented are only of fact. We have examined the evidence, and agree with tho district judge that tho decay of tho foundation of plaintiff’s dwelling was the natural consequence of old ago, and not owing to the drainage complained of, and that the plaintiff has failed to make out his case.

The evidence, though somewhat conflicting, in our opinion, decidedly preponderates in favor of the defendant.

Let tho judgment be affirmed, with costs.

Rehearing refused.  