#### GLENN *v.*LINE.

Waters and Watercourses —Drains—Easements —Prescription.

Where, on a bill to enjoin the obstruction of an open drain, it appeared that defendants and their grantor had for more than 50 years recognized complainant’s right therein; that at the time of filing the bill defendants were engaged in putting in a 4-inch tile drain to take the place of the open one; and that complainant’s acts in temporarily impeding the flow of the water was not an abuse of his rights. *H'eld,*that a decree making the injunction permanent unless defendants should put in a 5-inch tile was justified.1

Appeal from Livingston; Miner, J.

Submitted January 18, 1909.

(Docket No. 89.)

Decided March 3, 1909.

Bill by Rupert M. Glenn against William Line and Clyde Line to enjoin the obstruction of a drain. From a decree for complainant, defendants appeal.

Affirmed.

*Shields & Shields,*for complainant.

*Richard D. Roche*and *Louis E. Howlett,*for defendants.

Complainant and defendants own adjoining farms in the township of Marion, Livingston county, Mich. Complainant’s land lies south of the land owned by defendants, and upon it is a huckleberry swamp which comes up to or very near the partition line between the farms. The complainant purchased his farm 25 years ago, and the defendants 5 years ago. About the year 1852 a ditch was cut through the swamp and northerly through the defendants’ farm to lowlands beyond for the purpose of draining said swamp. This ditch ran through two ridges *609on defendants’ land, and was at those points some 8 or 10 feet deep. Where it went through the ridges, a box drain made of six-inch boards, nailed together, was put in. In 1875 the box drain was dug out of the northerly knoll, since which timé that portion'of the ditch has remained open. The ditch is not a natural watercourse, but is the only means of draining the complainant’s huckleberry swamp. The record shows that it was constructed upwards of 50 years ago with the consent of the defendants’ grantor. Indeed, defendants in their answer say:

“ They admit that the said drain was constructed many years prior to the time these defendants purchased their lands described in said bill of complaint; and, as they are informed and believe, it was constructed by the joint operation of the owners of the respective lands heretofore described, and that both of said owners contributed to the cost of the construction of the same.”

The ditch has served its purpose to the present time, work having been done upon it from time to time, both by the complainant during the past 25 years and by the defendants and their grantors. In the spring of 1907 defendants cleaned out the ditch so far as it lay upon their own premises, and laid upon the banks thereof four-inch tiling, with the intention of putting in the tile and covering up the drain. Thereupon the complainant filed his bill of ’ complaint, obtained an injunction, and, upon the hearing in the court below, the injunction was made permanent, unless the defendants put in a five-inch tile drain. From this decree the defendants appeal.

1

 For prescriptive rights as to flow of surface water, see note to *Gray v. McWilliams*(Cal.), 21 L. R. A. 607.

Brooke, J.

*(after stating the*facts). It is the claim of the defendants that the complainant has not acquired a right by prescription to flow the water from the swamp across defendants’ lands; and, secondly, that, even i.f the complainant has acquired such prescriptive right, it has been forfeited by improper use thereof on the part of the complainant. The record clearly discloses the fact that, not only have the defendants’ grantors acquiesced in the *610complainant’s rights in the ditch for nearly 50 years, but that the defendants themselves during the time of their occupancy of the servient estate have definitely recognized this right. They have themselves, on at least one occasion, cleaned out a portion of said ditch, and have permitted the complainant on other occasions to do likewise. Indeed, the very work they were engaged in at the time the injunction was issued (that of putting in a four-inch tile drain through the southerly knoll and down to complainant’s land) was an unmistakable recognition of the complainant’s rights and their own duty in the premises ; the only contention between the parties at that time being as to the size of the tile. That an easement may be acquired by prescription to flowage of surface water collecting upon the land of one person over the lands of an adjacent proprietor is the settled law of this State. *Gregory*v. *Bush,*64 Mich. 37; *Boyd v. Conklin,*54 Mich. 583.

It is not apparent from the record that the complainant has abused his right. It is true that for the purpose of removing his crop from an adjoining field he has from time to time thrown rails, straw, and other loose material into the ditch at a point just south of the line between the two farms. These obstructions, after harvest, were removed, and when in place, apparently only impeded, but did not wholly obstruct, the flow. The complainant claimed, and the circuit judge held, upon evidence which we think satisfactory, that a four-inch tile would be of inadequate capacity.

Under the facts disclosed by the record, the complainant is entitled to the relief prayed.

Decree affirmed.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.