delivered the opinion of the court.

In this case the plaintiff claims that the District of Columbia, in constructing a street which crossed a ravine, blocked up and stopped a waterway, thereby causing the formation of an extensive pond, which overflowed his premises. In his declaration he states two causes: first, that *575there was a natural stream fed by springs ; and, secondly, that the same conduit at the bottom of .the ravine was the waterway for the surface drainage. But he, finally, stood upon the latter ground, for the testimony showed that the spring stream had been divei-ted far above that by a sewer, and that, substantially, the water-course spoken of consisted of the intermittent flowing of the surface water after it had drained down off the surface of the adjoining land into this stream bed.

He cited cases to show that the arresting of the flow of the natural stream, in cases of that kind, made the municipality responsible. Then he proceeded to argue that if there was a stream, formed, it is true, by surface' water, there was no distinction between the two;, that it was the arresting not of surface water, but of a stream. And he cited a case (Rose vs. St. Charles, 49 Mo., 509) where the court had held a municipality responsible for arresting a stream which during part of the year did not flow. He also adduced a .passage from Judge Dillon’s work on Municipal Corporations, in which a doubt is expressed of the propriety of the ordinary rule when it was applied to the formation of a pond under these circumstances. But the author gives the cases in a foot note, remarking that the authorities thus far were rather the other way.

For the time that it flows this is a stream of water, but the whole circumstances are the result of the formation of a piece of land below grade, and although the flowage does thus accumulate at the bottom of a ravine, and does temporarily constitute a stream, we feel obliged to regard it as the method of action of surface water produced by the surface form of the land.

"We do not, therefore, perceive any reason for holding the municipality for results which were caused primarily by the. situation of the land below grade. It can hardly be said that the municipality has produced this injury, when an intervening fact occurs, namely, the situation of the land below the grade. If the owner of the land chooses to remain in that condition, he may lawfully do. so, but he takes the *576consequences of his situation. We think, therefore, that these circumstances would not impose any liability on the part of the city when it comes to exercise its lawful power of making streets on a certain grade.

For these reasons we'affirm the judgment.