#### The Town of Lake v. John A. E. Bok.

Municipal Corporations—Raising Street Grade—Floioage of Surface Water—Obstruction of—Damages—Evidence—Instructions.

In an action against a municipal corporation, to recover dam-iges for obstructing the flow of surface water by raising the grade of a street, this court holds that a harmless erroneous instruction touching the measure of damages can not be complained of, and declines to interfere with a verdict for the plaintiff.

[Opinion filed April 17, 1889.]

Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tüthill, Judge, presiding.

Mr. R. P. Hollett, for appellant.

Mr. Joseph H. Barker and Clifford, Smith & Fry, for appellee.

Gary, J.

This is an action by the appellee against the town for obstructing the flow of surface water from his land, by raising a street. This is a cause of action in this State, *46though great differences of opinion on the subject exist elsewhere. Gormley v. Sanford, 52 Ill. 158; Gillliam v. Madison R. R. Co., 49 Ill. 484; Angell on Watercourses, Sec. 108 et seq. The fact whether the land of appellee was affected,as he claimed, was settled by the verdict of the jury, upon conflicting evidence, in his favor.

There is in the case an erroneous instruction as to the measure of damages, which seems to have arisen by mere inadvertence, using “ and ” in place of “ or,"’ by which the jury are permitted to give to the appellee the cost of getting his crop to the state it was in, and the value of it as it was, instead of giving one or the other. But this instruction did no harm. If he was entitled to recover at all, no computation, based upon the testimony, could make his damages less than nearly or quite double all he has recovered. The judgment can not be disturbed. East St. Louis v. Flynn, 19 Ill. App. 64.

Judgment affirmed.