
    McKiernann v. Grimm et al.
    (Decided December 31, 1928.)
    
      Mr. Simon L. Leis, for plaintiff.
    
      Messrs. Bolsinger é Black, for defendants.
   Hamilton, P. J.

This case is here on appeal. The plaintiff, Minnie McKiernann, filed her petition in the court of common pleas of Hamilton county, alleging that she was the owner of certain property described in the petition, and that the defendants were the owners of certain property situated immediately east and southeast of the plaintiff’s property ; that on plaintiff’s property was a single story house in which, she and her husband had lived for the past several years; that the defendants improved their property, heretofore referred to, by the construction of a house, grading the lot, and building a garage on the rear end thereof, which was adjacent to the rear end of the plaintiff’s lot; that the plaintiff’s lot was higher than the lot of the defendants. It is further alleged that the defendants, in improving their lot, filled in a depression in the rear of their lot by artificial means, and also, by the construction of a garage on the rear end of their lot, diverted the water from its natural water course across the rear of the defendants ’ lot, thereby changing the course of the water and precipitating it onto the premises of the plaintiff, and into the basement of her house.

Plaintiff prayed for an injunction, restraining the defendants from diverting the flow of water; and, in effect, plaintiff asks a mandatory injunction to compel the removal of the obstruction of the natural water course.

The defense, by answer, admitted the ownership, and followed this admission with a general denial.

The trial court found for the plaintiff, and granted the injunction. From that decree, the defendants appeal to this court.

It appears from the evidence that the lots in question corner at the rear. The evidence is conclusive that there was a depression or natural water course across the rear of the defendant’s lot, estimated at from 3 to 5 feet in depth and several feet across, in which, after a rainfall, the water was carried away.

It is also clear from the evidence that the defendants filled a part of this natural water course, and constructed the rear end of their garage over the same, placing a concrete pillar support to the garage in about the center of the water course. That this obstructed the natural flow of the water there can be no question. The plaintiff has produced evidence to show that during a rainfall the water is diverted by the fill and the garage, and is forced into her basement cellar door, which is a few feet lower than the ground surrounding.

The plaintiff has therefore established her case, •and, unless there is some.rule of law preventing the relief on the part of the court, the injunction must be granted.

It is argued by counsel for the defendants, the appellants here, that there is a different rule as to serviency on the question of the flow of vagrant water where the situation is one of town lots. Counsel cite the case of Brown v. Krody, a nisi prius case, decided by Judge Matthews February, 1921, and reported in 19 O. L. R., 506. That ease, however, if it is an exception to the general rule, does not present a case under the state of facts presented here. In that case the proposition was the grading of a city lot, and the filling of some depressions, which incidentally increased the flow of surface water onto the adjacent lot. This was a mere incident to a general improvement. The proper rule is the one stated in the case of Butler v. Peck, 16 Ohio St., 334, 88 Am. Dec., 452. At page 342 of the opinion, the court says: “The principle seems to be established and indisputable, that where two parcels of land, belonging to different owners, lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude

The facts here do not present a question of servitude. It will be noted that the plaintiff’s lot, as heretofore stated, was higher than the defendants’ lot. The servitude was in fact upon the defendants’ lot, and had we not the situation of a natural water channel, and the defendants had filled their lot, so as to create the burden, it would in effect be the creating of a servitude by defendants on a lot which was naturally dominant. This would entitle plaintiff to relief. But in this case we have the situation presented of a natural wafer course pr channel across the rear of the defendants’ lot being obstructed by the defendants, thereby diverting the water onto plaintiff’s property, causing the damage complained of. We state the proposition to show that the case of Brown v. Krody, supra, and the cases cited in the brief, are not in point.

We therefore hold that under the facts of this case, and the law applicable, the plaintiff is entitled to the relief prayed for in her petition, and a like decree to that entered below will be entered here.

Decree for plaintiff.

Cushing and Ross, JJ., concur.  