It is alleged in the petition in this suit, which was brought against a municipal corporation to recover damages, that the petitioner ' was the owner of a certain lot of land and the buildings thereon, said property being situated adjacent to the right of way of a certain railroad at the intersection of that road with Bolton Street in the corporate limits of the defendant municipality, which through its public works department furnished the grade and plans for the elevation of the track and road-bed of the railroad named, “incident to the building of the Gwinnett Street Subway, and, in order to accomplish the elevation of said tracks at Gwinnett Street, said tracks for a distance of a block and a half north and south of said Gwinnett Street Subway were raised on a gradual incline from the former level-to the height required at Gwinnett Street, and in thus grading and elevating the road-bed and tracks the portion of the track immediately east of your petitioner’s property was elevated about one foot, and a slope or incline was made from said tracks, as elevated, to the premises of petitioner,” the result of this being that when it rains the water which flows upon the tracks *791and right of way at the Bolton Street crossing runs down the incline upon the property of petitioner, where it accumulates under the house; and that this has resulted in certain injuries to petitioner’s property. The negligence-charged against the defendant corporation is, (a) the failure to place a sewer or ditch between the right of way of the railroad and petitioner’s property, for the purpose of carrying off the water which would otherwise run from the right of way upon the adjacent property; and (b) the failure to grade the incline from the right of way into Bolton Street, so that the water would flow into Bolton Street and thence to the nearest sewer. Held, that no cause of action is stated in this petition against the city, it not appearing that the plan furnished by the city through its engineering department was defective in itself, or that it involved the changing of the grade of the street, or that any of the work necessarily involved in the execution of the plan furnished by the city was in the street itself.
August 10, 1915. Action for damages. Before Judge Charlton. Chatham superior • court. March 2i, 1914. John Rourke Jr. and David S. Atkinson, for plaintiff in error. Twiggs & Gazan, contra.Judgment reversed.
All the Justices eonewr.