Opinion by

The plaintiff brought an action of trespass against the defendant, alleging that the latter had obstructed a watercourse and changed the level of his lot contiguous to a lot of the plaintiff, so that water, which formerly and naturally flowed or fell on the defendant’s land, was discharged on to plaintiff’s property, and that in the course of the filling and grading of the defendant’s lot *91the continuity of the grade of the footwalk in front of the premises of plaintiff and defendant was broken, so that a part of the plaintiff’s sidewalk was left on a dangerous slope.

The case was tried three times. At the first trial there was a verdict for the defendant. A new trial was granted, and at the second trial there was a verdict for $5.33 in favor of the plaintiff. Á second new trial was granted, and at the third trial a verdict for one dollar was rendered in favor of the plaintiff. The principal question presented on the appeal is, whether the court should have entered judgment for costs corresponding with the verdict as in the case of trespass quare clausum fregit. The court concluded from the amount of the verdict, as indicated in an opinion refusing a new trial, that the jury found the predecessor in title of the defendant filled up the lot and the defendant was only responsible for the change in the pavement, but that the latter work was a part of the general plan to change the grade of the lot, and therefore involved in the plaintiff’s cause of action. The position of the appellant is, “That the branch of action upon which the plaintiff was successful was in substance a form of action of trespass quare clausum fregit”; that the only injury that could result to the plaintiff was direct and immediate and not consequential.

The case must be disposed of in accordance with the pleadings and evidence, and an examination of the record leads us to the conclusion that the court was correct in holding that the alteration of the lot along the street line was a part of the change complained of in the statement of claim, and with reference to which testimony was offered. The injury alleged by the plaintiff was consequential to the change of the level of the defendant’s lot. It was alleged that by filling in the lot, the erection of the building, and the raising of the pavement the plaintiff’s property was prejudicially affected.

This injury would have been redressed in an action *92on the case at common law, and is not affected by the statute of Charles II, relating to costs in actions of trespass. The raising of the sidewalk was alleged to have been one of the causes of the plaintiff’s injury, and evidence was introduced in support of that allegation. There is no clear line of cleavage disclosed by the testimony on which it could be confidently held that injury arising from the change in the sidewalk was entirely distinct from that resultihg from the other changes complained of, and that there could therefore be such a division of the case as the appellant contends for in support of his position that the statute referred to should apply as in the case of a trespass at common law.

We are not convinced that the learned trial judge committed any error which requires the reversal of the judgment.

Judgment affirmed.