hearing of the case, complainant was granted the relief prayed for, and the defendant appeals to this court.

The drain law (section 9 of chapter 3, being 2 Comp. Laws, § 4327) provides:

"The said jury or special commissioners shall hear the proofs and allegations of the several parties in interest, and shall ascertain and determine the necessity for such drain, and for the taking of such private property for the use and benefit of the public for the purpose thereof, and the just compensation to be made therefore in each case, which compensation shall be determined without reference to any benefits that may accrue to the land in consequence of the construction of such proposed drain." Section 16 (§ 4334) provides:

"Whenever it is necessary to run a drain across the right of way or roadbed of any railroad, the same proceedings shall be had throughout in all respects as in cases provided in this act for obtaining private lands for the construction of drains, except as hereinafter provided. It shall be the duty of the railroad company, when notified by the county drain commissioner so to do, to make and maintain the necessary opening through said roadbed, and to build and maintain a suitable culvert. Notice in writing to make such opening, and to construct such culvert, shall be served upon such company by leaving a copy thereof with the ticket or freight agent, or general officer of such railroad company, at least thirty days before such railroad company shall become liable."

This section was before the court for consideration in the case of Chicago, etc., R. Co. v. Chappell, 124 Mich. 72 (82 N. W. 800). It was there held that this section manifested a legislative intent to require the company to make such improvement without compensation, and it was determined that under the Constitution the legislature had not the power to do this. The defendant contends that, although the legislature under this decision could not impose the burden upon the railroad company to construct its culvert at its own expense, the statute should be construed as imposing upon the company the duty of constructing and maintaining a culvert, and

that the expense thereof is to be considered as a part of the award, and it must be inferred was included in the award.

We do not think this construction is open. The duty which is imposed by section 16 (§ 4334) upon the railroad company is the duty to make and maintain the necessary opening through said roadbed and to build and maintain a suitable culvert. The duty of constructing the ditch itself is therefore as imperatively asserted as that of maintaining the culvert. In our view, these two sections, when read together, authorize the construction of a drain across a railway right of way, but, from the very necessity of the case, the construction of such drain must include provision for the track of the railway, and this includes the construction of a culvert or bridge. This should be included in the estimate for the drain, and is a part of the necessary expense of constructing the drain.

In the present case, it is clear that the award did not intend to include the expense of constructing a bridge. In fact, it excludes it. If the concluding clause of the award, namely, "for excavating 2-100 acres, and to deposit excavations, 4-100 acres, seventy-five dollars," is meant to include the award to the company for the service of excavating, this excludes any award for the construction of a culvert. If these words of the award are intended to designate the area of land taken, which is more probable, it likewise excludes the idea that an award for services by the railroad company was intended. It follows that the defendant was in the wrong in attempting to construct this drain without making provision for constructing a culvert and protecting the property of the complainant.

It is suggested in defendant's brief that in any event the complainant should be enjoined from obstructing this watercourse, on the ground that the 30-inch iron pipe was not sufficient to carry the water of the drain even before it was deepened. On the other hand, it is asserted by the complainant that any obstruction of this watercourse can

not be made the subject of complaint by the county drain commissioner. We do not agree with this view. The drain law (chapter 106, § 2 [2 Comp. Laws, § 4309]) provides:

"The word 'drain' whenever used in this act shall be deemed to include any watercourse or ditch, opened or proposed to be opened and improved for the purpose of drainage, and any artificial ditch or drain, levee, dyke or barrier, or tile drain proposed or constructed for such purpose."

And by section 3 of chapter 2 (section 4312) it is provided:

"The county drain commissioner shall have jurisdiction over all drains within his county. * * *""

We think, therefore, that the drain commissioner has such an interest in this matter as to authorize him to invoke the aid of the court. At the time this iron pipe was put in, it was a drain under process of construction, legal proceedings for the enlargement of the watercourse having already been instituted. The complainant should be required to provide an opening equivalent to that, and of the depth of that, which existed before the construction of this drain. If the defendant, however, finds it necessary to lower the drain beyond the depth which it had before the institution of the proceedings, the complainant will be entitled to have the drain constructed at the expense of the county, and this roadway maintained by a suitable culvert.

No costs will be awarded to either party.

GRANT, OSTRANDER, HOOKER, and MOORE, JJ., concurred.

INDEX.

ABANDONMENT OF COUNT-See TRIAL (3).

ABATEMENT AND REVIVAL-See CREDITORS' BILLS (1).
ABBREVIATION-See TAXATION (18).

ABSTRACTS OF TITLE-See MORTGAGES (1).

ACCEPTANCE-See CONTRACTS (1).

ACCORD AND SATISFACTION-See COMPROMISE AND SETTLE-
MENT.

ACCOUNTING—See EQUITY (5); GUARDIAN AND WARD (3).
ACCOUNT STATED-See CONTRACTS (5).

ACTIONS-See HOMESTEADS (2, 3); PRINCIPAL AND SURETY (3).
ADEQUATE REMEDY AT LAW-See EQUITY (4, 7).

ADJOURNMENTS-See JUSTICES OF THE PEACE.

ADMISSIONS-See ESTATES OF DECEDENTS (3); EVIDENCE (19).
ADULTERY-See HUSBAND AND WIFE.

ADVERSE POSSESSION.

1. An occupant of land for upwards of 40 years may set up his
adverse possession against the other party to an agreement
which was signed by his predecessors in title, then in posses-
sion of the disputed premises under a valid claim of title, and
which provided for a surrender of possession upon 60 days'
notice. Lake Shore, etc., R. Co. v. Johnson, 115.

2. Estoppel arises between landlord and tenant by reason of in-
dentures under seal or possession given; following Fuller v.
Sweet, 30 Mich. 237; Michigan Cent. R. Co. v. Bullard, 120
Mich. 416. Id.

3. Continued occupation of premises for 40 years, coupled with
the payment of taxes and express refusal to recognize plain-
tiff's rights, is notice of the adverse claim. Id.

AFFIDAVITS See APPEAL AND ERROR (9); MANDAMUS (4).
AGENCY-See COMPROMISE AND SETTLEMENT (2); PRINCIPAL AND
AGENT; SALES (4).

ALIENATION OF AFFECTIONS-See HUSBAND AND WIFE.
ALIMONY-See APPEAL AND ERROR (19); DIVORCE.

ALLOWANCE OF CLAIMS-See ESTATES OF DECEDENTS (4).
ALTERATION OF INSTRUMENTS-See BILLS AND NOTES (2);
DEEDS (2).

AMENDMENTS-See MANDAMUS (1, 8); MECHANICS' LIENS (3); MUNICIPAL Corporations (6); PLEADING (5); TRIAL (3).

ANIMUS-See TRIAL (2).

APPEAL AND ERROR.

1. The denial of a motion for change of venue on the ground of local prejudice will not be reviewed and the change of venue compelled on mandamus, since a case involving an abuse of discretion is reviewable on writ of error. Lyle v. Cass Circuit Judge, 33.

2. A defendant who is defaulted for non-appearance, and who files a motion and affidavits to set aside the default, may review, on writ of error, a denial of the same conditioned upon the remitting by plaintiff of a portion of the judgment, although an unqualified denial of the motion, being discretionary, could not be so reviewed. Carton v. Day, 43.

3. A new trial will not be refused on reversal where evidence was introduced which might have been submitted to the jury as a question of fact that would entitle the plaintiffs to recover. Bryan v. Straus Bros. & Co., 49.

4. Findings of fact and law made by the trial court without the aid of a jury must be held to be conclusive when the printed record does not purport to contain all the evidence, and the assignments of error are general. Lasley v. Preston, 66.

5. The bill of complaint and statement of counsel indicating that the complainant is not entitled to relief, it is unnecessary to remand the case for the taking of proofs. Public Schools of Wyandotte v. Harding, 86.

6. After the statutory period for appealing from the orders of the probate court, reasonable diligence is required in making application to the circuit court for leave to appeal, under 1 Comp. Laws, §§ 674, 675. In re Bright's Estate, 220.

7. The statute does not, in limiting the time for filing the petition, permit one in default to have a year for the delayed appeal. Id.

8. Sickness and absence from his office of the solicitor for petitioner is not so clearly an excuse for a delay of three months that the decision of the lower court will be reversed.

Id.

9. On motions to dismiss writs of error, affidavits showing the dates of judgment are sufficient without attaching certified copies of the judgments. Bliss v. Caille Brothers Co., 258. 10. Writs of error issued more than 18 months after judgment are subject to dismissal without any plea of the statute of limitations.

Id.