*561On petition por a rehearing.
Biddle, J.The appellants make the following points in their petition for a rehearing:
1. That this court held the complaint good, and the court below found the complaint to' be true. That the ordinance stipulated “ that the owner of the premises, and those holding under him, should hold the city harmless by reason of any damages which might accrue by reason of parties tapping the sewer.” That the conclusion of law of the court below was based on this proviso in the ordinance, by reason of which the appellants■ could not recover; and that this court did not decide that question.
It is true that the finding of the court below covered the ground taken by the complaint, but it did not find all the averments contained therein, as alleged, to be true, by any ■means; and we can look only to the finding, not the averments of the complaint. There is nothing in the record to inform us upon what ground the court below based its conclusion of law favorable to the city. It simply found, “as a conclusion of law, that on the foregoing state of facts the plaintiffs have no cause of action against the city of Indianapolis.” We did not decide whether the city was.protected by the proviso in the ordinance or not, because we had not been convinced by the finding of the court below that the city' had caused any private injury to the appellants, for which it was liable. It was quite useless to decide the question of protection before the wrong from which the city was to be protected had been established.
2. It is urged in the petition that the evidence sustains the complaint, and, the complaint being sufficient, a new trial should have been granted.
The question whether the evidence proves the complaint cr not is not before us. The true question as to the evidence is, does it sustain the finding? The counsel for appellants did not, either in their written briefs or oral *562argument, show us wherein, nor for what reason, the evidence did not sustain the finding. We must therefore conclude that it did, for the presumptions are with the court below.
3. The appellants cite the case of The City of Indianapolis v. Suffer, 30 Ind. 235, against our opinion in this case, and quote the following extract;
“ The skill and care which is incumbent relates as well to the capacity of the sewer as to the mere mechanism in its construction, as well to its plan as to its execution.” This remark relates to consequential injuries to private rights which flow from the public use of a sewer. In the case we are considering, the complaint against the city is for not constructing a sewer sufficiently large to accommodate, besides its public use, the private drain of the appellants. It is not shown that the appellants have been injured by the insufficiency of the sewer for- public use. Indeed, by the finding of the court, quite the contrary appears.
4. In view of the importance of the case, its voluminous record, and the numerous questions involved, the appellants desired to have their case presented orally. Their desire was granted, the argument on their behalf heard attentively, and carefully considered. In the main, the authorities produced were the same as those we have cited in support of our opinion, and we do not perceive that the grounds on which it rests have been disturbed. They may be briefly recapitulated as follows;
1. There was no obligation to private individuals resting upon the city of Indianapolis to construct the sewer complained of at all, and no liability to private persons would be incurred by refusing to do so.
2. The construction of the sewer, or not, was a question for the legislative or ordaining power of the city to decide, and one which the courts cannot revise, even though the decision was erroneous.
3. In constructing the sewer, public interests properly *563controlled, and not private rights, though they should not be injured thereby.
4. Having constructed the sewer, its insufficiency for public use did not, of itself, give a private remedy to the appellants, simply because it would not accommodate their private drain. The city was not bound to construct the sewer for the private advantage of any person.
5. It was optional with the appellants to tap the public sewer, or not, with their private drain, according to the terms offered them by the ordinance. The sewer was constructed, its size and capacity to do its work, or not, were apparent to be seen by all persons, before the appellants exercised their optional right. Their act was voluntary; they were not bound to accept the terms of the ordinance.
The finding of the court shows that by a disuse of their private drain all the injury complained of will be avoided. It would seem, then, that the city, instead of causing a private injury to the appellants by the public use of the sewer, has simply failed to provide the appellants with the private advantage of draining their cellar. Without their private drain, the appellants stand with the general public on the same footing of equality, and this is all they have a right to demand.
The petition is overruled.