#### LELIA R. DAVIS v. JOHN W. SMITH.

(Filed 9 April, 1907).

1. Overflow Water from Higher Building — Damage—Better Construction. — In an action for damages occasioned plaintiff by water falling from defendant’s wall upon ber roof, it is incompetent to show that had plaintiff’s building been better constructed the damages would have been lessened.

2. Same — Proper Judgment. — A judgment containing a mandate that the defendant shall “provide sufficient gutters or pipes or drains for his large wall adjoining plaintiff’s, to prevent the water falling from the roof thereof from flowing against plaintiff’s building and lot,” is proper if it is an appropriate relief and in accordance with the allegations, and the verdict of the jury, though not named in the relief prayed for in the complaint.

*298Civil actioN, tried before Moore, Jand a jury, at tbe October Term, 1906, of tbe Superior Court of Durham County.

Manning & Foushee. for plaintiff.

Giles & Sykes for defendant.

Clark, J.

The questions which were presented on the former appeal, 141 N. C., 108, need not again be considered. There was evidence in support of the plaintiff’s contentions, and the rulings and instructions of the trial court conformed to wbat was said by us on the former bearing. the plaintiff is not complaining of the diversion of surface water, and bis Honor confined the jury to the damage done the plaintiff’s wall by water falling from the defendant’s roof. Davis v. Power Co., 171 N. Y., 336; 89 Am. St., 817. If the defendant caused or permitted tbis, it was not competent to show that if the plaintiff’s building bad been better constructed the damage would have been lessened. Fitzpatrick v. Wellor (Mass.), 48 L. R. A., 278; Gould v. McKenna, 86 Pa. St., 297; 27 Am. St., 705. The other exceptions of the defendant do not require discussion.

The judgment contains, besides the adjudication for the recovery of the damages assessed, a mandate that the defendant shall “provide sufficient gutters or pipes or drains for bis large building on bis said lot, adjoining the plaintiff’s, to prevent the water falling from the roof thereof from flowing against the plaintiff’s building and lot.” This was a proper order upon the allegations and issues found, and was prayed for in the complaint. If it bad not been specifically prayed for, the judgment should contain any appropriate relief justified by the allegations of the complaint, and the verdict. Williams v. Commissioners, 132 N. C., 301; Reade v. Street, 122 N. C., 302, and cases cited.

Per Curiam. No Error.