
    Dipple v. Douglas.
    If A. lease a house and lot to B., and B. assign the lease to G., who occupies the premises, and C. dig a hole, by which, after the expiration of his lease, and after the lessor has resumed the possession, the cellar of B., an adjoining tenant of A., is flooded with water: Qumre, whether A. can fill up the holo and pay B. the damage sustained by means of it, and sue C. for the amount expended.
    It is error to refuse to instruct the jury, in such case, that if they find from the evidence that B.’s cellar would have been flooded if the hole had not been there, they cannot make the damage to him a part of their verdict.
    APPEAL from the Vanderburg Circuit Court.
    
      Wednesday, June 13.
   Perkins, J.

This suit was commenced by Douglas against Dipple, before a justice of the peace, to recover 50 dollars.

The complaint of Douglas was this: He owned two adjoining pieces of property in the city of Evansville, which were occupied severally by tenants, viz., John Dipple and Eugene Kappler. Dipple dag a hole upon the piece of property—a lot—occupied by him, which filled with water and overflowed into the cellar of Kappler, the other tenant of Douglas. Douglas filled up the hole, at a cost of 11 dollars, and paid Kappler 39 dollars for his injuries from the overflow, making 50 dollars, which he alleges he paid for the wrongful act of Dipple, and which sum he seeks to recover back by means of this suit.

Upon the trial on appeal in the Circuit Court, it appeared that the premises occupied by Dipple were leased by Douglas to one William M. Walker, for a period of ten years, ending August 1, 1859, at a certain ground rent, Walker paying also the taxes, and having the right to remove any buildings he might erect on the premises, at any time within two months from the first day of August, 1859, but not afterwards. If they were not removed by the expiration of said two months, they became the property of Douglas. Nothing was said in the lease about rent for the two month’s extension of time; nor was there, as to excavating or filling up, or otherwise, cellars.

Walker assigned this lease to Dipple, who occupied as his assignee. Such being the case, it might well bé looked into to see if this action lies against him by the original lessor. See 4 Kent, p. 96; 1 Chit. PL, pp. 17, 116, et seq.; Taylor’s Land, and Ten., p. 294. But the point has not been made, and we shall not examine it.

It appears that Dipple removed the buildings erected on the leased ground within the two months allowed, and Douglas took possession. Nothing appears to have been said about the cellar at that time. It does not appear but that Douglas might have thought it would be useful for a subsequent tenant for years, or for the accommodation of a building intended to be erected by himself.

It further appears that in November, 1859, being more than a month after Douglas had re-possessed himself of this lot, with the cellar upon .it, there came an unusual freshet, which occasioned the filling of Kappler’s cellar with water, producing the main injury out of which has grown this suit; and further that Douglas had the cellar filled up.

The evidence tends strongly to show that Kappler’s cellar would have been filled by water, in the freshet, if there had been no cellar on the lot which had been occupied by Dipple, and is far from satisfactorily showing any liability on the part of the latter to any one on account of the fact; yet the Court refused this instruction:

A. L. Robinson, for the appellant.

J. G. Jones and J F. Blythe, for the appellee.

“ If the jury find from the evidence that Kappler would have sustained the damage from the filling of his cellar by the extraordinary rain if Dipple’s had not been there, the jury cannot make that damage a part of their verdict.”

Per Cwriam.

The judgment is reversed with costs. Cause remanded, &c.  