
    Ball v. Armstrong.
    If a person in building obstruct a gutter with building-materials, and thereby cause water to flow into the cellar of another, he is liable in damages. '
    APPEAL from the Tippecanoe Court of Common Pleas. jrj
    
    
      G. S. Orth, G. H. Brackett and J. A. Stein, for the. appellant .
    
      S. A. Huff, Z. Baird and J. M. La Rue, for the appellee.
    
      Thursday, May 27.
    
    
      
       Counsel for the appellant made the following points:
      1. In a populous city, the right which the owner of a lot has to improve it, majL and usually does, result in more or less damage to his neighbors ; but he is not liable for consequential damages where he exercises proper care and skill. Radcliff’s executors v. The Mayor of Brooklyn, 4 Comst. 200, et seq. See, also, Etting v. The Bank of the U. S., 11 Wheat. 59; Caldwell v. The U. S., 8 How. 366.
      2. Among the reasons upon which the defendant’s motion for a new trial was grounded was, the misconduct of one of the jurors in taking advantage of an adjournment of the Court to inform himself relative to a fact in the case. See Barlow v. The State, 2 Blackf. 114; Cowen’s Treat. 899, 900. He had also, at a previous trial involving the same question at issue in this, and against the same parties, expressed an opinion adverse to the defendant. He had not been sworn on his voire dire, but’ defendant’s peremptory challenges had not been exhausted at his calling. The People v. Vermilyea, 7 Cow. 122.—1 Grah. & Wat. New Trials, 129, and cases cited.
    
   Per Curiam.

Ball erected a building in Lafayette. During the progress of its erection he occupied the street in front of the building with building-materials. He also obstructed the gutter with those materials. While the gutter was thus obstructed there came heavy rains — freshets, and the water, instead of passing off in the gutter, was backed upon the lot, and flowed over into Armstrong’s cellar, on the ádjoing lot, causing injury thereto, and to the articles stored therein. Armstrong sued for damages and recovered 40 dollars.

Several objections are raised, of an unimportant character.

The merits of the case are in a nut-shell, as appears by the evidence. Ball had no right to obstruct the gutter. He did obstruct the gutter. That obstruction caused the water to flow into Armstrong’s cellar-. The overflow damaged him. Ball was liable for that damage.

The amount awarded is not excessive.

The judgment is affirmed with 5 per cent, damages and costs.  