Opinion by
Mr. Chief Justice Green,The great difficulty with the plaintiffs’ case is the verdict of the jury. The learned trial judge in a charge that was exceedingly lucid and entirely correct, submitted to the jury the question whether the filling up of the water on the plaintiffs’ lot was due to any act of the defendant, and charged that if it was, the plaintiffs were entitled to recover. Thus he said, “ The plaintiffs say that their stream of which I have spoken, had an ■unobstructed course, and ran out freely from their premises, and further on, until the time when the defendant began to fill up his lot. They say that there was a trunk, sluice or something of the sort, underneath the level of the structure or bed of Forty-sixth street; that that was open, and that the water passed through it on to the property belonging to the defendant, but that when he began to fill up his lot the water stopped flowing and began to dam up on the west side, the plaintiffs’ side of Forty-sixth street, and that the damages which they claim to have suffered arose from that cause.' If the evidence has satisfied you that that passageway under Forty-sixth street was opened and unobstructed, and that there was a way for the water to flow out and across the defendant’s premises, and on to a proper destination, and that the defendant by filling up his lot cut off the natural course of the water, and prevented the water from flowing away, so that it was dammed up upon the plaintiffs’ premises, then the plaintiffs are entitled to a verdict for what*641ever is proper compensation for them.” In view of the cause of action set forth in the plaintiffs’ statement of their claim, it is difficult to see how a fairer presentation of it could be made and submitted to the jury l'or their determination. The statement, after describing the water course, thus set forth the cause of action, “ That in violation of the rights of the plaintiff's, the defendant, about the month of November, 1894, began and has since continued to fill in the said tract owned by him on the east side of Forty-sixth street, and thereby closed the aforesaid water course; that as a result thereof the surface water and spring water aforesaid collected upon and overflowed a large portion of the plaintiffs’ tract, there being no other outlet for the same; that in consequence thereof the plaintiffs were obliged to expend large sums of money,” etc. Comparing the charge with the statement it will be perceived that the very precise injury of which the plaintiffs complain was embodied in the charge, and the learned trial judge directed the jury that if they were satisfied that the evidence established the fact that the'injury complained of was inflicted by the act of the defendant, the jury should find for the plaintiffs. But the jury found a verdict for the defendant, and thereby found that the injury complained of was not caused by the act of the defendant, and thus that question, a pure question of fact, was conclusively determined against the plaintiffs. The court below and this Court are bound by the verdict, and must proceed upon the assumption that the acts of the defendant did not cause the backing and filling of the water of the stream upon the plaintiffs’ land. ■
To escape the result of this finding the plaintiffs present several assignments of error which they argue raise two propositions, and these are stated in this way: “1. Did the stoppage of the water course by a lower riparian owner (assuming such to be the fact) justify the defendant in filling up that portion of the water course which crossed his property and thus prevent the natural flow of the water from the plaintiffs’ property to the defendant’s property.” To this question the defendant might well reply that, whether he was justified or not in filling up on his own land is a matter of no consequence to the plaintiffs, since the jury has found that the defendant did not “ thus prevent the natural flow of the water from the plaintiffs’ property.” No doubt the defendant felt that he had no discretion in the *642matter, as he had received positive orders, several times repeated, from the proper health department of the city government, that he must fill up the ravine on his property, because of the accumulation of foul water thereon; but whatever might be the state of facts connected with that subject, the jury has finally determined that the filling done by the defendant on his property did not cause the injury of which the plaintiffs complain.
The second proposition is thus stated: “2. Assuming that the sluice or opening under Forty-sixth street had become clogged up before the filling in of the water course by the defendant, did that justify the defendant in permanently filling in the water course where it crossed his property, without leaving a means of escape of the water from the plaintiffs’ property, if the obstruction in the sluice should subsequently be removed? ” To this the defendant could very readily reply that his personal justification for doing what he did was not a material question at issue in the case, and that in point of fact he did leave ample means of escape for any water that might come from the plaintiffs’ land, by the manner in which he put in his filling and gave full testimony on that subject, but that whether that was- so or not the jury has found that it was not the filling up on defendant’s lot that caused the swelling of the water on the plaintiffs’ lot. The proposition assumes as true a disputed fact which was found by the jury against the plaintiffs, to wit: that the defendant permanently filled the water course over his own land without leaving a means of escape of the water from the plaintiffs’ land. The learned court below left this question to the jury distinctly in the following part of the charge, to wit: “ If on the other hand, you should be of the opinion that there was a free passage way for this water under Forty-sixth street and under Forty-fifth street, but that the defendant choked it up, prevented the water from escaping by filling up his lot so that the water could not get away, the plaintiffs would be entitled to a verdict for a reasonable sum, whatever would justly compensate them for their loss.” The antithesis of this proposition, as presented to the jury in the immediately preceding-sentence of the charge, proves just as strongly that the verdict determined the entire absolution of the defendant for all responsibility for the injury of which the plaintiffs complain. The court charged:- “If you should be of the opinion that the de*643fendant had nothing to do with causing the injury to the plaintiffs’ property, that it came from causes over which the defendant had no control, which he did not bring about, that is, if it came from an obstruction to the water way under the line of Forty-sixth street, or because there was no water way on the line of Forty-fifth street, then your verdict ought to be for the defendant. In that case it would be very unjust to hold him responsible, no matter how serious the injury may have been to the plaintiffs.” Under the charge it is manifest that the jury could not find in favor of the defendant without exonerating him entirely from all agency in causing the injury to the plaintiffs, whether bj filling up his own lot so as to prevent the water escaping over it, or by any kind of obstruction to the sluice under the plaintiffs’ land. We think the learned trial judge carefully'- guarded every right of the plaintiff's to recover, and committed no error in defining the circumstances in which the jury might find either for the plaintiffs or the defendant. The authorities cited for the plaintiffs were not at all impinged upon by anything contained in the charge, and the verdict was entirely within the limitations of the facts and the law applicable to the case. The assignments of error are all dismissed.
Judgment affirmed.