Welch, J.
By section 494 of the municipal code (66 Ohio L. 232), the owner or possessor of a city or village lot is made liable for damage occasioned to buildings on any adjoining lots, by excavation which he may make on his own lot to the depth of more than nine feet below the curb of the street, or if there be no curb, below the “surface” of the adjoining lots.
Section 495 provides that such owner may excavate to the full depth of the foundation walls on the adjoining lots, and if there be an established grade of the street, to the depth of nine feet below the grade, without incurring such liability.
We think, with the courts below, that the word “ surface” in sectiou 494 is to be understood as designating the-actual existing surface, whether it be the natural surface or the result of filling or grading the lots, The true meaning and effect of the two sections is, to subject a party to-the liability mentioned, where he makes an excavation on his lot deeper than the foundation walls on the adjoining lot, and more than nine feet below the actual surface ; or if the street be either curbed or graded, deeper than the foundation walls on the adjoining lot, and more than nine-feet below the curb or grade.
Motion overruled.