Sievers

Plaintiff brought his action to recover of the defendant damages for injury occasioned to his property by the grading of Van Ness avenue at the crossing of Chestnut street. The work as done dammed a well-defined channel through which surface water was wont to flow, and backed the water upon the land of plaintiff.

It was developed upon the trial that a contract had been let, after regular proceedings by the authorities, to grade Van Ness avenue to the “official grade” at a stipulated price per cubic yard of filling. The official grade was seventy-five feet above base. An attempt had been made by the supervisors to change the grade to eighty-three feet above base. This attempt, however, was admittedly abortive, as in Warren v. Riddell, 106 Cal. 352 , and during all of the time the official grade remained established at seventy-five feet.

The city engineer and surveyor, whose duty it was to furnish grade lines and levels (Stats. 1891, p. 206), assumed eighty-three feet to be the official grade, and the contractor filled in accordingly. It is conceded that filling to the true grade would have occasioned plaintiff no damage, and that the injury which befell him was caused by the…