This is an appeal by Kay-Noojin Development Company from a final decree in a suit in equity against it by Marvin D. Kinzer. The original bill sought to enjoin the maintenance of a nuisance consisting of the collection of surface water by respondent upon its land as an upper proprietor in the City of Huntsville and casting it in unnatural volume upon the property of complainant, a lower proprietor. It also sought the recovery of damages.
Complainant’s property consists of his dwelling and lot, the defendant’s property being a residential development known as English Terrace. This development involved the laying out and grading of streets and ways and the opening up or digging of ditches and establishing drains. It is alleged that these ditches or drains interfered with the natural flow of surface waters falling upon defendant’s lands, causing them to be collected and deposited through drains and culverts in unnatural quantity onto complainant’s property and as a consequence complainant’s residence was seriously damaged.
There was, originally, a demurrer to the bill on the sole ground that the bill was without equity. This demurrer was overruled and respondent appealed to this court. We affirmed that decree, 253 Ala. 583, 45 So.2d 795, on authority of the companion case of Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 45 So.2d 792, in which latter case the applicable principles of law were considered and discussed.
After affirmance, respondent undertook to interpose additional grounds of demurrer to the bill, praying leave of the court to do so. The complainant moved to strike these additional grounds and this motion was sustained. This action is assigned as error. Equity Rule 14, Code, Vol. 2, p. 1052, Appendix, provides that “without leave of Court, an additional demurrer may not be filed, nor may a demurrer be amended, after a demurrer to the same pleading has been submitted and ruled upon.” A demurrer to the additional pleading having been submitted and ruled upon and that ruling having been appealed to and affirmed by this court, it was well within the discretion of the trial court to apply the stated rule and deny permission to file the additional demurrer.
Thereafter respondent answered and propounded interrogatories to the complainant. It appears that these interrogatories were served upon complainant October 4, 1951. The cause was set for hearing on evidence to be taken orally before the court on November 12, 1951. On that date counsel for respondent moved for a dismissal of the cause under Equity Rule 39, Vol. 2, p. 1084, Appendix, on the ground that said interrogatories had not been answered. Complainant’s counsel thereupon expressed readiness to file answers at that time. Testimony of counsel for each side was heard on the question of a purported agreement between them as to the filing of answers to interrogatories, counsel for complainant testifying that he had some sort of agreement with one of defendant’s counsel that the interrogatories might be answered at any time before the hearing. The trial court denied the motion to dismiss and allowed the answers to be then filed. Rule 39 requires such interrogatories to be answered within thirty days after service, unless otherwise ordered by the court, under penalty of dismissal unless the time for answer be extended. In this instance the court, in allowing the answers to be filed on the hearing, offered to respondent any additional time desired, in consequence of the answers not having been filed until the date of the hearing, to take additional testimony to rebut any part of the answers. The purported agreement of counsel aside, no error is made to appear. Matters of this sort necessarily are addressed to the sound discretion of the trial court and we observe no reason to interfere *53with its exercise in this instance. No showing is made of any resulting prejudice or hardship to the defendant.
Subsequently defendant moved to require more complete answers to some of the interrogatories, which motion was granted in one instance and denied in others. These rulings were so clearly free from error as to require no detailed treatment here.
Evidence offered by complainant tended to sustain the allegations of the bill, that is, that in the process of its development respondent so constructed its system of sewers, ditches, culverts and drains as to cause surface water to be cast upon the complainant’s property below in unnatural quantity. The evidence tended to show that the defendant’s tract was built up with dirt from cutting away and carving out the streets and was caused to be made considerably higher; that before the development there had been no high water, but thereafter complainant’s property was flooded. Walls of the house were cracked, windows came out from the sills and were required to be "stuffed,” the walls had. to be felted and papered, part of the foundation was caused to sink, the ground would stay soggy for several days, and from October until summer the house was damp, the family being required to move out of it some five times; the ceilings cracked and serious damage was caused to a floor furnace; floors, sills, joists and framing were caused to buckle or separate and parts of the timbers rotted.
On the part of the defendant, there is evidence tending to show a proper construction of the drainage system in accordance with the plans and requirements of the city engineer; that its development did not cause the alleged damage to complainant’s property, but rather that it was subject to be overflowed prior to the defendant’s development; that during the time complainant claimed to have suffered his damages there was an exceptional rainfall in that area, which was the immediate cause of the trouble. There was also evidence tending to show that complainant’s damage was greatly less than' that claimed.
After careful consideration of the whole evidence, we are persuaded that the conflicting contentions presented questions of fact which could only be correctly resolved by the trial court, who had the superior advantage of seeing and hearing the witnesses testify, in addition to an acquaintance with the properties involved. We discover no basis for a reversal of the decree expressing the judgment on the facts.
Complainant’s witness, Mrs. Lackey, testified that she lived next door to complainant and had lived there since 1945. Over defendant’s objection, she was permitted to make some response to a question as to whether her property was flooded between 1945 and the time defendant started its development in 1948. It is doubtful that the particular question was answered, the facts being developed on subsequent questioning that neither her own nor complainant’s property was flooded during that period. Even so, evidence that the properties had not been flooded prior to operations of defendant was relevant to the issue of whether or not the overflowing of the complainant’s property was the result of defendant’s actions as tending to show susceptibility to overflow at a time three years previous. Whether this evidence was too remote rested within the sound judicial discretion to determine, and the ruling not being clearly erroneous will not be revised here. Springer v. Sullivan, 218 Ala. 645, 119 So. 851.
Some of the assignments are based upon the allowance of what appellant terms leading questions. Such matters were also within the discretion of the trial court. Ingalls v. Holleman, 244 Ala. 188, 12 So.2d 751. In no instance complained of was the court guilty of an abuse.
Error is alleged also in the refusal of the trial court to strike the answer of complainant’s wife, his witness, when she testified that “the water was standing on the property and made the foundation sink —naturally the whole house buckled” etc. We cannot agree with appellant’s contention that such testimony was exclusively a matter of expert opinion. It could be regarded, and evidently the trial court so considered it, as a shorthand rendering of a fact open to ordinary observation and ex*54perience as to just what damage was done to the house.
Complainant’s witness Van Valkenburgh testified too as to the damage to complainant’s residence and the probable cost of repair. Whether or not the witness was properly qualified was a question resting within the discretion of the court and the ruling will not be revised on appeal except in case of palpable abuse. We do not think any error resulted here. The witness was shown to be an architect with sufficient experience in the matters involved to render him prima facie competent to testify. Kirby v. Brooks, 215 Ala. 507, 111 So. 235; Ala.Digest, Evidence, <®==546.
Respondent sought to introduce in evidence a series of daily reports on weather conditions in the area purported to have been made by “TVA” to the Huntsville Electric System covering a period of six months in the year 1947. The witness, an employee of the System, testified that they were received and filed by her in the course of her work. She knew nothing, however, of their authenticity nor by whom they were made. They were obviously not daily reports made in the course of the business of the electric company, by whom she was employed, and therefore without the purview of Code 1940, Title 7, § 415. Moreover, it is not clear what bearing the weather conditions might have had upon the issue without showing the resulting effect upon the complainant’s property.
Defendant’s witness Jones, shown to be a qualified civil engineer, was asked whether or not in his opinion as an engineer “the developer of English Terrace [defendant’s property] did everything reasonable and practicable to control the drainage in that area.” Appellant complains of prejudicial error in sustaining complainant’s objection to this question. The contention cannot be sustained. The test is not as hypothesized by the question presented and it was within the discretion of the trial court to rule it objectionable. J. H. Burton & Sons v. May, 212 Ala. 435(7), 103 So. 46. The test is not alone the manner in which the drains and water channels were constructed, but whether or not by reason of that construction the surface water was changed from its natural flow and caused to be deposited on the complainant’s property to his damage. Kay-Noojin Development Co. v. Hackett, supra. But aside from the technical aspects of the question, the witness later was permitted to testify in detail just what steps the defendant did take in the matter of drainage, what was or was not practical, that the defendant’s development had no effect on the surface drainage, and that any other system would have been impractical, thus resulting that the defendant had the benefit of a fair response to the inquiry anyway.
Finally, it is insisted that the conclusion that the appellant is liable at all is erroneous, the contention being that it was guilty of no negligence in the manner of construction of the drains or channels which collected the surface water and deposited it upon complainant’s property. This, of course, would have been a question of fact for decision of the trial court, which under the evidence could have reasonably been resolved against the defendant. But, as stated, this is not the test. In Tennessee Coal, Iron & R. Co. v. Perolio, 206 Ala. 403, 405, 90 So. 876, 877, the court pointed out that the basis for liability in such cases is the wrong committed in casting surface water in unnatural quantities on the servient property, to its damage, by reason of the improvement of the superior estate. It was there stated, in speaking of Southern K. Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am.St.Rep. 77:
“ * * * The railway company had, according to the complaint, so changed its property as to precipitate on Lewis’ [plaintiff’s] property water that otherwise would not have flowed on Lewis’ property. This act was a positive wrong, regardless of whether the land was urban property or not, and for the damnifying consequences of this act the company was properly held liable. jjs * t-”
The exceptional circumstances spoken of in some of our early cases and referred to in Lewis’ case and in our recent case of Vinson v. Turner, 252 Ala. 271, 40 So.2d 863, which seem to qualify the above stated *55rule, were shown in Tennessee Coal, Iron & R. Co. v. Perolio, supra, not to exist in cases as the instant one where the upper proprietor so graded or drained his land as to divert the natural flow of surface water from its natural channels and deposit it in greater volume on the lower proprietor to his material damage.
We have recanvassed the decisions on the question and regard the rule as enunciated in Kay-Noojin Development Co. v. Hackett, supra [253 Ala. 588, 45 So.2d 793], to be correct and here pertinent. It is thus epitomized in the fourth headnote:
“An upper proprietor who collects surface water into a channel and casts it upon property of a lower proprietor to his damage, when if it were not so collected the water would be scattered and diffused, is liable for the damage though the property is located within an incorporated town or city.”
On a painstaking study of the record in the light of the argument of counsel, we have concluded that no prejudicial error is made to appear. It was clearly a question of fact as to whether or not the defendant was liable within the rule enunciated and the amount of his damage. The conclusion reached by the trial court was clearly not against the great weight of the evidence and we feel that we would be unwarranted in overturning it.
Affirmed.
LIVINGSTON, C. J., and BROWN and MERRILL, JJ., concur.