delivered the opinion of the court. The petition states that the defendant’s land, contiguous to the plaintiff’s,is burdened with a servitude whereby the water that falls on the latter has its way thro’ the former, and the defendant has stopped up the passage of the water through her lot, to the injury of the plaintiff. It concludes with a prayer that she be enjoined from preventing or obstructing the passage of the water from the plaintiff’s lot thro’ hers, &c.

The existence of the servitude was denied; *175the defendant had judgment, and the plaintiff appealed. * * 1

The statement of facts shews that the vendor of both parties built two houses in a block, which covered the whole lot on which they stand, so that the water which falls into the yard of the upper house, purchased by the plaintiff, can have no passage but over the yard of the house purchased by the defendant, or by a gutter to be made thro’ the corridor or entry of the former house. There is now, and there has been for some time, a hole of the size of a hat, in the wall which separates both yards, through which the water passes from the plaintiff’s yard into that of the defendant. It is not proven that this hole was left in the wall when it was erected, tho’one witness deposed he believed it wasj but two others depose it has the appearance of having been made, by taking out a few bricks from the wall. It existed while the two houses belonged to the vendor of the parties, and he had noticed it. 11 was at times closed by the tenant of the lower house; but when she was requ ested to leave it open to avoid an inconvenience to the owner, she consented. It would cost about fifty dollars to have a gutter *176iriade thro’ the entry or passage, to lead the 1 ° water from the yard to the stréet.

_ *acts’ we think the district judge did not err in concluding that the plhintiff had failed to establish the existence of the servitude. It is not proven that the hole was left in the wall; and the witness who expresses his belief that it was, speaks only from the appear-aneé of the bricks. Two others think differently.

The servitude not being proven, we think judgment was properly given for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs.