Without discussing the evidence at length, it is manifest that the wall of earth and railroad ties erected by the defendants upon their premises in the course of their decay precipitated water upon the premises of the plaintiff in a manner wholly different from the courses taken by the water when it was permitted to flow in a natural manner.
The rule applicable to the facts in the instant case has been previously noted in McKiernann v Grimm, et al, 31 Oh. Ap, 313, wherein on page 215, the following citation is found from the case of Butler v Peck, 16 Oh St, 334:
“The principle seems to be well established and indisputable, that where two parcels of land, belonging to different ownérs, lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude.”
The weight of the evidence showing that the industry of man has been used to produce the damage of which complaint is. made, the judgment of the Court of Common Pleas will be reversed, and the cause remanded for a new trial.
HAMILTON and CUSHING, JJ, concur.