
    Louis Burkhardt v. Anna Hanley.
    1. Whore the natural surface of adjoining city or village lots has been changed by filling or grading, the words "surface of the adjoining lots,” as used in section 49 of the municipal code (66 Ohio L. 232), are to be understood as designating the existing or artificial, and not the original or natural surface of the lots.
    2. The meaning and effect of sections 494 and 495 is, to subject a party to the liability therein provided, where he makes an excavation on bis lot deeper than the foundation walls on the adjoining lot, and more than nine feet below such actual or existing surface, or if the street be curbed or graded, more than nine feet below the curb or grade.
    
      Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The parties are in possession of adjoining lots in the city of Cincinnati, and the action was brought by Mrs. Hanley to recover damage done to buildings situated upon her lot by excavation of Burkhardt’s cellar. The lots at the place in question had been elevated, by artificial filling of a ravine passing through them, to the extent of some fifteen feet above the original or natural surface, and there was no curb on the street fronting the lots; nor does it appear that the grade of the street had been established. The excavation was deeper than the foundations of plaintiff’s buildings, and more than nine feet below the actual or artificial surface of the lots, but less than nine feet below the original or natural surface of the lots. The court instructed, the jury that if they found these to be the facts, they should render a verdict for the plaintiff, which they accordingly did, and judgment was entered thereon. And it is now claimed that in so ruling the court erred, and also that the District Court erred in subsequently affirming the judgment on proceedings in error.
    
      John R. Von Seggern, for the motion.
    
      Thomas F. Shay, contra.
   Welch, J.

By section 494 of the municipal code (66 Ohio L. 232), the owner or possessor of a city or village lot is made liable for damage occasioned to buildings on any adjoining lots, by excavation which he may make on his own lot to the depth of more than nine feet below the curb of the street, or if there be no curb, below the “surface” of the adjoining lots.

Section 495 provides that such owner may excavate to the full depth of the foundation walls on the adjoining lots, and if there be an established grade of the street, to the depth of nine feet below the grade, without incurring such liability.

We think, with the courts below, that the word “ surface” in sectiou 494 is to be understood as designating the-actual existing surface, whether it be the natural surface or the result of filling or grading the lots, The true meaning and effect of the two sections is, to subject a party to-the liability mentioned, where he makes an excavation on his lot deeper than the foundation walls on the adjoining lot, and more than nine feet below the actual surface ; or if the street be either curbed or graded, deeper than the foundation walls on the adjoining lot, and more than nine-feet below the curb or grade.

Motion overruled.  