ing of them. Receiving and giving or refusing them, and allowing the aggrieved party an exception, is in effect giving the special leave to present them that is provided for in the rule. The rule does not mean that leave must be obtained to present requests later, but that requests presented later cannot be entertained without the leave of the court.

Upon the undisputed facts the plaintiff had not been accepted by the defendant as a passenger at the time of the accident, and had himself abandoned the intention of becoming one upon hearing the announcement by the conductor. The court, therefore, properly instructed the jury that the defendant was bound to exercise ordinary care only. See Webster v. Fitchburg R. R., 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521; Jones v. B. & M. R. R., 163 Mass. 245, 39 N. E. 1019. Exceptions overruled.

CITY OF VALPARAISO v. SPAETH. (No. 20,534.)

(Supreme Court of Indiana. Dec. 12, 1905.) 1. MUNICIPAL CORPORATIONS-IMPROVEMENTS

-LIABILITY-STREETS.

Burns' Ann. St. 1901, 88 6899, 6900, in relation to the improvement of highways, provides that, where any road to be improved is in the corporate limits of any city, the board of county commissioners must, before publishing the report of the engineer and viewers, obtain of the common council of the city their consent to the improvement in the city, which shall be shown by a copy of the record of the meeting of the council ordering the making of the improvement. Section 3623 gives common councils of cities absolute dominion over the streets of the city. Held, that an order of a city council consenting to the improvement of a highway extending into the city makes the board of county commissioners the agent of the city in the improvement of that part of the highway within the city limits, and the city is liable for a faulty improvement effected under the supervision of the county commissioners. 2. SAME CHANGE OF GRADE-WATERS.

Where a city in improving a street collects water in large quantities in an artificial channel, and provides no outlet, whereby the water is thrown upon the lands of an abutting owner, made lower than the street by reason of the improvement, the city is liable therefor. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1784, 1785.]

3. SAME-EXTRAORDINARY RAINS.

A city in constructing side ditches, culverts, and outlets for surface water on the improvement of a street is only required to provide for such waters as may be reasonably expected to fall, and which are not the result of rains of extraordinary character.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1778, 1779.]

4. APPEAL-HARMLESS ERROR-DEMUrrer.

There is no error in sustaining a demurrer to a paragraph of an answer where all the evidence admissible under it was admissible under the general denial.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4093, 4094.1

5. MUNICIPAL CORPORATIONS-DRAINS-DAMAGES-ACTION EVIDENCE.

Where, in an action by a property owner against a city for damages owing to the discharge of surface waters from a ditch upon her property, the complaint alleged that the water was surface water from ordinary rains, evidence that the water in question resulted from extraordinary rains was admissible under the general denial.

6. SAME-EVIDENCE-EXTRAORDINARY RAINS. In an action against a city by a property owner for damages from surface water discharged upon her property from a ditch, error in refusing to admit evidence that the water resulted from extraordinary rains was prejudicial.

On rehearing. For former opinion, see 74 N. E. 518. Reversed.

HADLEY, J. Action for damages for negligently causing the overflow of the plaintiff's lot. Proceeding under the act of 1899 (Acts 1899, p. 164, c. 109), now repealed, but the provisions here involved in substance reenacted in 1901 (Acts 1901, p. 449, c. 205, §§ 6899, 6900, Burns' Ann. St. 1901), 50 freehold voters of Center township, Porter county, in which township the city of Valparaiso, of 6,000 inhabitants, is located, on April 24, 1899, filed with the board of county commissioners their petition for the improvement, by grading and graveling, of a certain highway in said township which extended into the corporate limits of said city, and which extension within the city was over Campbell street, a north and south unimproved street, to Haas street, a distance of more than 80 rods. Whereupon the commissioners appointed a surveyor and reviewers, who proceeded under the law to view, survey, establish grade, and make a profile of details, determine the quality and depth of gravel and cost of improvement, and on May 16, 1899, filed with the commissioners their report, as required by the statute. For the grade of the street the surveyor and viewers adopted the grade established by the city council in December, 1895, by ordinance. The common council of appellant city having given its consent to said improvement and ordered it to be made, as provided by section 2 of said act of 1899, the county commissioners ordered an election, which resulted in a majority vote of the township, including the city, being cast in favor of the proposed improvement, as exhibited by the plans and profile made by the surveyor and viewers. A contract was let by the commissioners, and the improvement completed and accepted in July, 1901. Eighty rods south of the Grand Trunk Railroad, Campbell street is intersected by Pearl street, running east and west. The west end of the plaintiff's lot abuts on Campbell street, and the north side thereof on Pearl street. Between the Grand Trunk Railroad and Pearl street, and east of Campbell street, the general slope and drainage of 8 to 10 or more acres is to the southwest, with frequent slight

elevations and depressions in the surface. Campbell street at the crossing of the Grand Trunk is about 25 feet higher than at the west line of plaintiff's property. Before the improvement of Campbell street, the storm water falling on said 8 to 10 acres, flowing south and westwardly, found its way along the depressions, and between the plaintiff's lot at Pearl street and the Grand Trunk, crossed Campbell street through two culverts, one of which some of the witnesses called a bridge. In the execution of the improvement, the culverts mentioned were removed from Campbell street, the water courses filled up to grade, and side ditches so made as to collect and carry in the east side ditch, down to the neighborhood of the plaintiff's property, all the surface water theretofore distributed and discharged to the westward of Campbell street through said culverts. Near the southwest corner of the plaintiff's lot is the lowest point for several hundred feet to the south, east, and north, so that surface water flows to this point from the south near Haas street, from the east along Pearl street to Academy street, and from the north on Campbell street. The east sidewalk of Campbell street, as improved, is 24 inches higher at the northwest corner and 30 inches higher at the southwest corner, than the plaintiff's lot, the side ditch 12 inches lower than the sidewalk, and the crown of the roadway 7 inches higher than the sidewalk. Pearl street, so improved, is also several inches higher than the plaintiff's lot. In the improvement of Campbell street no provision whatever was made by any one, nor has any since been made, for the escape of the storm water collected and carried to the plaintiff's property by the improvement, which there accumulated in a large body, flowed in and upon the plaintiff's lot, flooded the premises, filled her cisterns and cellar with foul water and filth carried from the streets, washed and destroyed the foundation, thereby rendering her dwelling house uninhabitable, to her great damage, etc.

The complaint, alleging, in substance, the foregoing facts, is in two paragraphs. The first count is upon the negligence of appellant in failing to provide a means of escape for the large body of surface water collected and cast upon the plaintiff's premises by the improvement of Campbell street. The second upon negligence for maintaining a system of drainage from Campbell and Pearl streets whereby no means of escape was provided for the large body of storm water that was collected, carried, and discharged upon the plaintiff's premises. The case went to trial on the general denial and six-year statute of limitation. There was a trial by jury, and verdict and judgment for appellee.

There are divers assignments arising upon the pleadings and motion for a new trial, but appellant's counsel advise us that "the law governing municipalities in dealing with

surface water in the grading of its streets is the question to be decided in this case." Preliminary to the principal question, appellant's attorney argues that, as the proceeding was begun before, and accomplished by the agents of the county commissioners under authority conferred by the Legislature, and that without any agency, oversight, or active participation of the city, the latter is not liable for a negligent performance of the work, or for the maintenance of a system of drainage established by the county under legal authority.

1. In this contention appellant cannot be sustained. In the passage of the act of 1899, the lawmakers were very considerate of the rights of municipalities. Under its provisions, the authority of the county commissioners to improve a street in a city, as a part of a country road, is rooted in the consent of the common council and expressed approval of a majority of the voters of the city and township. Under the act, beyond making the survey, adopting a grade, a general plan, and making a profile thereof, the commissioners have no power to enter the city limits for any purpose of the improvement until after they have obtained the fullest consent of the city council to the proposed improvement, expressed in the most unequivocal manner. The following is the language of the law: "Where any road to be improved is in the corporate limits of any city, the board of commissioners must, before publishing the report of the engineer and viewers, obtain of the common council of said city their consent to said improvement in said city, and said consent shall be shown by a copy of the record of the meeting of said council, either in regular or special session, ordering that said improvement be made." The provision amounts to this; that when commissioners have exhibited to the common council the precise plans and specifications of a proposed improvement, if the council withholds its approval, that is the end of the matter. The commissioners have no power to proceed further. But if the city is satisfied with the plan, and desires the improvement made as proposed, it seems not sufficient for the council to passively consent, but it must act affirmatively and officially in legal session, and enter upon its minutes an order that the improvement be made. Such an order, made upon full knowledge of the plans and specifications proposed, is equivalent to making the improvement the city's own, and, if the work under such an order is executed according to the exhibited plans and profile, it imposes upon the city the same liabilities as if the improvement had been accomplished upon its own initiative; or, in other words, the entry of the order by the city council that the improvement be made had the effect of constituting the board of commissioners the agent of the city in the improvement of that part of the highway within the city

limits. It follows, therefore, that the city can find no escape from liability in the fact that the improvement of Campbell street was effected under the immediate supervision of the county commissioners. If that improvement was faulty, and the plaintiff was damaged by reason of the fault, the city must

answer.

2. We now come to the real question for decision, is appellant liable in damages for so improving Campbell street as to cause surface water to be diverted from its natural and usual flowage, and collected in large quantity in side ditches, and discharged in a body upon an abutter's premises, where it was not accustomed or natural for it to go, without providing any means for its escape therefrom? The common councils of cities in this state have no absolute dominion over the streets and other highways of the city. Section 3623, Burns' Ann. St. 1901. The city holds such highways in trust for the public, and is in duty bound to improve them in such manner as will respond to the necessity and convenience of the public in their use as ways of passage. To promote these objects, the city, in the improvement of a street, has the right to make cuts in front of some abutter's property and fills in front of others in producing a proper and common grade. Property may be thus injured by being made less valuable, but, if the work has been done skillfully and without negligence, the injury will be considered as direct and consequential, and such as the abutter was bound to know, when he made his purchase, was liable to happen in the rightful exercise of municipal power. For such injuries, it is well settled, cities are not liable. City of Evansville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. 86, and cases cited. A city may also construct side ditches in cuttings to draw the water off the crown of the roadway, and it is not liable if the water discharged by such ditches finds its way onto private property lying lower than the street; in short, it may be said that a city is not liable in damages for any injury resulting to abutting property which is directly and necessarily incident to a proper and skillful construction of a street improvement. City of North Vernon v. Voegler, 103 Ind. 314, 317, 2 N. E. 821, and cases cited. But it has been the rule of decision in this court for more than 25 years that a municipal corporation has no right to collect surface water in an artificial channel, and cast it upon another's land without providing adequate means for its escape. Weis v. City of Madison, 75 Ind. 241, 248, 39 Am. Rep. 135; Evansville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. 86; North Vernon v. Voegler, 89 Ind. 77; Crawfordsville v. Bond, 96 Ind. 236, 242; Davis v. Crawfordsville, 119 Ind. 1, 21 N. E. 449, 12 Am. St. Rep. 361; Patoka Tp. v. Hopkins, 131 Ind. 142, 30 N. E. 896, 31 Am. St. Rep. 417; Mitchell v. Bain, 142 Ind. 604, 618, 42 N. E. 230. For an instructive case,

where many decisions are reviewed by Cooley, J., see Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552.

There is evidence to the effect that, before Campbell street was improved, the prin cipal part of the storm water complained of, from 8 to 10 acres lying east of Campbell street, meandered along natural depressions to the south and west, and crossed Campbell street through two culverts, about 30 and 40 rods, respectively, north of Pearl street, which former road or street officers had deemed necessary to construct. In making the improvement, these culverts were removed, the watercourses filled with earth to the fixed grade, and a side ditch constructed on the east side of the street sufficient to carry all the surface water discharged into it from the east between the Grand Trunk and Pearl street, a distance of about 80 rods, and near the latter point permitted to flow out upon abutting property and in upon the plaintiff's lot, which after the improvement was completed lay lower than the street, without making any provision for its escape. No one will question the right of a city to divert surface water from natural courses in carrying out a system of municipal drainage, but when it collects such water in large quantity in an artificial channel, thereby creating a necessity for a new and larger outlet, it is its plain duty to provide it. The duty to supply an adequate outlet is inseparable from the right to collect the water. To permit the assembled waters to descend in a body through such artificial channel to the premises of abutters made lower than the street by the improvement is as much an invasion of private right, as much a trespass upon private property, as would be the wasting of earth and stone from the cuttings upon the adjacent lots. We think, therefore, that under the complaint and evidence the jury had abundant grounds for finding that the improvement of Campbell street was unskillfully and negligently accomplished, in that it caused the assembling of a large and an unusual amount of storm water near the intersection of Pearl street, and provided no means for it to get away. Both the complaint and evidence are sufficient.

3. Appellant's fourth paragraph of answer was to the effect that the damages for which the plaintiff sues were caused by an unprecedented rainstorm and flood, which, in contemplation of law, was the act of God. The sustaining of a demurrer to the answer is assigned as error. What has been said above with respect to the duty of municipalities to provide means of escape for surface water in the improvement of its streets does not apply to unprecedented rainfalls; that is, to such downpours or floods as may be known to have occurred, but are so unusual and extraordinary as that prudent persons do not think of attempting to guard against them. Skillful construction of streets in

this respect seems to mean that such side ditches, culverts, and outlets must be provided for surface water collected and diverted from natural ways as are sufficient to carry the waters that may, from experience and the previous history of the vicinity, be reasonably expected to fall, and which are not the result of a cloudburst or other rainstorm of extraordinary character. City of Madison v. Ross, 3 Ind. 236, 54 Am. Dec. 481; City of Evansville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. 86; Los Angeles Cemetery Ass'n v. City, 103 Cal. 461, 37 Pac. 375; Allen v. City, 52 Wis. 430, 9 N. W. 284, 38 Am. Rep. 748; City v. Adams, 72 Ill. App. 662; Farnham, Waters, etc., § 182. Therefore, if the plaintiff's damages were caused by water cast upon her property by an unprecedented and extraordinary rainstorm or freshet, the city was not liable, and the fourth paragraph of answer stated a good defense. The complaint, however, rests upon the theory that the surface water from ordinary rains was collected, diverted, carried to, and, for want of an outlet, cast upon, and left on, the plaintiff's lot, to her injury. If her damage did not result as alleged in the complaint, the city's answer of general denial put in issue every fact that went to disprove it. Hence it is that all the evidence that would have been admissible under the fourth paragraph of answer was admissible under the general denial, and the error in sustaining appellee's demurrer thereto was harmless.

On

But this does not settle the question. the trial at the proper time, and while the city's witness was testifying in chief, appellant, upon appellee's objection, was denied the right to prove, as it offered to do, and was entitled to do, that the damages sued for were caused by water from an unprecedented rain overflowing the plaintiff's premises. This was prejudicial error. The case is not one of contract, where the court may sometimes look into the evidence to determine whether the complaining party has suffered from an exclusion of his evidence; but it sounds in tort, and in all such cases the damages are unliquidated, and the amount left to the jury, to be ascertained by them, under the direction of the court, from a consideration of all the evidence.

It is plain that we cannot say that the verdict would have been the same if the court had permitted appellant to prove that the rain which injured the appellee was of a character for which the city was not liable. For this error, the cause must be reversed.

The judgment is reversed, and cause remanded, with instructions to grant appellant a new trial.

PER CURIAM. Upon appellant's petition, and proper showing that appellee, Wilhelmina Spaeth, departed this life on or about November 11, 1904, being after this appeal

and before judgment of reversal herein, and the death of said Wilhelmina Spaeth now appearing to this court for the first time, it is now ordered that the judgment of reversal rendered in this cause on December 12, 1905, be set aside, and the same re-entered as of the date of submission of said cause, to wit, February 13, 1904.

AMERICAN QUARRIES CO. v. LAY. (No. 5,009.)

(Supreme Court of Indiana. Jan. 2, 1906.) COURTS-TRANSFER OF CAUSES-SUFFICIENCY OF APPLICATION.

Burns' Ann. St. 1901, § 1337j, subd. 2, provides for the transfer of a case from the Appellate to the Supreme Court on the grounds that, the opinion of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided erroneously, and provides that the application for the transfer shall state with particularity the grounds relied on. Held, that a petition for transfer "on account of error in the decision of the cause in the Appellate Court" is insufficient; the proper practice being to set out the particular decision of the Supreme Court contravened or the particular new question of law which was involved and decided erroneously.

Appeal from Circuit Court, Lawrence County, Jas. B. Wilson, Judge.

Action by James Lay against the American Quarries Company. On affirmance by the Appellate Court of a judgment in favor of plaintiff (73 N. E. 608), defendant petitions for a transfer of the cause to the Supreme Court, under Burns' Ann. St. 1901, § 1337j, subd. 2. Petition denied.

J. H. Underwood, E. C. Field, and H. R. Kurrie, for appellant. J. H. Edwards and H. P. Pearson, for appellee.

*

JORDAN, J. This cause having been decided by the Appellate Court adversely to appellant, the latter has filed a petition praying the transfer thereof to the Supreme Court. The petition, or application, omitting the formal parts, is as follows: "The appellant in the above cause hereby petitions for the transfer of said cause to the Supreme Court of the state of Indiana, on account of error in the decision of said cause in the Appellate Court. Subdivision 2 of section 1337j, Burns' Ann. St. 1901, provides that "said party may file in the Supreme Court an application for the transfer of the case to the Supreme Court on the grounds (1) that the opinion of said division of the Appellate Court contravenes a ruling precedent of the Supreme Court; (2) or that a new question of law is directly involved and was decided erroneously. The application shall state with particularity the ground or grounds relied on." It is manifest that the petition or application in this case wholly fails to comply with the provisions of the above statute, for it states neither of the grounds therein provided for the transfer of a case, and for this reason alone the petition must be denied.

An application to remove a case under this statute does not perform the office of an appeal from the Appellate to the Supreme Court, and in considering such applications the latter court is not required or authorized by the statute in question to examine the record in the case in order to determine whether the ground or grounds stated in the petition or application are sustained. But in deciding this question the court is limited or con fined to the written opinion of the Appellate Court given in the particular case. City of Huntington v. Lusch, 163 Ind. 266, 71 N. E. 647, and cases there cited. It will be observed that the statute in question declares in express and positive language that "the application shall state with particularity the ground or grounds relied on." This declaration or expression makes it evident, we think, that the Legislature intended that the petitioner should be required to state in his petition, not only the general ground or grounds mentioned in the statute and relied upon for a transfer, but in addition thereto, under the first general ground, the application should state or give the particular ruling, precedent, or decision of the Supreme Court contravened by the opinion of the Appellate Court. If the second ground, namely, that a new question of law is involved in the case and that such question was decided erroneously by the Appellate Court, is relied upon for transferring the case, then in addition to such general statement of the ground the application should specifically or in particular state the new question of law which it is claimed is involved. While we do not mean to hold, that in addition to this particular statement, the applicant is required under the statute in his petition to cite or give the authorities to establish that under the opinion of the Appellate Court such new question of law was de cided erroneously, nevertheless a citation of or reference to authorities would certainly be helpful to and desirable by the court in determining the question. The interpretation which we have accorded to the statute in regard to the particular statement of the grounds relied upon for the transfer of a cause is, in our judgment, a reasonable and correct exposition of its meaning. If the applicant complies with the requirements thereof, this court can, to an extent at least, be advised and aided by the application or petition in its efforts to determine whether the ground or grounds upon which a transfer is requested are sustained. This is essential in view of the fact that there is no statute or rule of court which exacts of the applicant the duty of filing along with his application a brief in support thereof; that being a matter wholly optional with him.

Petitions to remove cases under the provisions of the statute in question have multiplied within the last year, and thereby the labors of the Supreme Court have been greatly increased. It cannot in reason be asserted that the Legislature intended that a petition

to transfer a cause should be sufficient which merely stated the general ground or grounds for such transfer in the language of the statute, with nothing more in particular; for under such circumstances the Supreme Court would be required to search, unaided by the applicant or his counsel, in order to discover what particular ruling, precedent, or decision of that court was contravened by the opinion of the Appellate Court, or as to what particular new question of law is involved and under the opinion of the Appellate Court was decided erroneously. That such was not the intention of the Legislature is apparent, in view of the positive declaration that the application shall state with particularity the ground or grounds relied upon by the applicant for the transfer. Petition denied.

Under Burns' Ann. St. 1901, § 7255 (Acts 1899, p. 569, c. 255), providing that contractors, etc., and all persons performing labor, etc., for the erection, altering, repairing, etc., any house, mill, manufactory, etc., may have a lien on the house, mill, manufactory, etc., a building equip ped with machinery for the generation of steam to be distributed under a municipal franchise through pipes laid in the streets, and supplied for heating purposes is a manufactory. 2. SAME-RIGHT TO LIEN.

Under Burns' Ann. St. 1901, § 7255 (Acts 1899, p. 569, c. 255), providing that contractors, etc., and all persons performing labor, etc., for the erection, altering, repairing, etc., of any house, mill, manufactory, etc., may have a lien on the house, mill, manufactory, etc., a laborer employed to haul away dirt dug out of and to haul sand to be used in refilling a trench dug in a street for a steam pipe connecting a plant for generating steam to be distributed for heating purposes throughout the city is entitled to a lien, irrespective of whether such work was performed on the particular premises to which the lien primarily attached, or on the street in front of the same, or at some point where the owners of the plant, owned merely an easement operated under a municipal license.

Appeal from Superior Court, Marion County; Jas. M. Leathers, Judge.

Action by Nelson Wells against Emma A. Christian and others. Judgment for defendReversed. ants, and plaintiff appeals. C. E. Fenstermaker, for appellant. Spencer & Spencer, for appellees.

MONTGOMERY, J. This action was brought by appellant to foreclose a mechanic's lien. The cause was tried by the court, a special finding made, and conclusions of law stated thereon in favor of appellees. Appellant excepted to the conclusions of law, and predicates his assignment of error upon that exception.

The appeal directly to this court is by virtue of the provisions of section 1337h,