The plaintiff sued the defendants for damages occasioned by the bursting of a cistern filled with water, which flooded his shoe store.

*428Martin and Washburn were lessees of Haggerty; Martin had the first floor and Washburn the upper stories of the same building.

Opposite the. third story was a cistern which rested on a brick wall, and from this cistern both tenants used w|iter. Haggerty alleges that Washburn obligated himself to keep the property leased in repair, and that he is bound in warranty to him, should he be held responsible for the damages, and, further, he alleges that the cistern belonged to Washburn.

There was judgment against W. W. Washburn for $G50 and costs of suit. Washburn alone has appealed.

The evidence does not establish that Washburn owned the cistern, nor does tlie obligation of Washburn to the lessor to keep in repair the premises leased, authorize a co-tenant to sue him for damages occasioned by defects inherent in the cistern on the leased premises. But, aside from this, we are of opinion that the plaintiff has failed to-prove the amount of damages occasioned him by the bursting of the cistern. The evidence is conjectural and unsatisfactory.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the district court be annulled, and that there be judgment in favor of defendant, Washburn, rejecting the plaintiff’s demand, with costs of both courts.