the farm. Considered in the light of all the circumstances, the same intention and meaning is, in my opinion, clearly made out. The facts known to all parties were these: Hayes paid for every farm listed with him and sold by him $50. This farm was listed with Hayes by Cross. That is to say, Cross informed Hayes of the fact that defendants had a farm for sale, leaving Hayes and defendants to make their own bargain. Cross expected to receive $50 from Hayes if Hayes sold the farm. As matter of fact, plaintiff has received the $50 from Hayes. Plaintiff says he did not know the terms of the arrangement made by Hayes and defendants. Whether he did or not is immaterial. The contract sued on imports that the farm was in the hands of Hayes for sale, upon some terms. Plaintiff and defendants knew it, and plaintiff's contract, in effect, recites it. This being so, is it reasonable to suppose that, if Hayes sold the farm, defendants were to pay to plaintiff something more than $460 as a mere gratuity? We come again to the meaning of the words put into plaintiff's contract and heretofore quoted. Defendants desired to sell their farm, and had fixed an upset and minimum price per acre which they were willing to accept. They had so contracted with Hayes that he had the exclusive right to sell it. But if plaintiff would bestir himself and find a customer who would deal with Hayes-procure a buyer— they were willing to pay him a commission equal to the one they had agreed to pay Hayes if they (the defendants) themselves found a buyer. This, it seems to me, is what the contract means. In this view the court was in error in refusing the peremptory instruction asked for by defendants. No other errors need be considered.

The judgment should be reversed, and no new trial granted.

STONE, J., concurred with OSTRANDER, J.

MILLER v. HARMER.

1. DRAINS-HIGHWAYS-REOPENING.

After a ditch had been established more than 20 years within and along the highway in front of premises of the defendant, who obstructed the flow of water in the drain and prevented the highway officials from cleaning it out, the commissioner of highways need not proceed to reopen it in the manner prescribed by Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2388 et seq.), but was warranted in resorting to a suit in equity.

2. SAME.

But where it was shown that in a portion of the drain, steel tubing had been used that did not carry off a sufficient volume of water, flooding defendant's premises by backing up surface water in times of high water, the highway commissioner should have been required by the decree to remove the tubing or replace it by larger size pipe.

Appeal from Sanilac; Beach, J. Submitted November 20, 1912. (Docket No. 141.) Decided January 3, 1913.

Bill by John Miller, highway commissioner of Elk township, Sanilac county, against John Harmer for an injunction and other relief. Defendant filed a cross-bill for affirmative relief. From a decree for complainant, defendant appeals. Modified and affirmed.

Fred A. Farr, for complainant.
Gates & Simonson, for defendant.

STONE, J. In this cause, the bill of complaint was filed by the commissioner of highways of the township of Elk, Sanilac county, to obtain a decree restraining the defendant from maintaining an obstruction placed by him in a highway ditch in front of his premises in said township, and for resulting damages. The bill states:

(2) That defendant is the owner and occupant of the E. of the N. W. of section 12 in said township.

(3) That the east boundary line of defendant's said farm is situate one-half mile west of a public highway running north and south between the townships of Elk and Buel.

(4) That on the north line of defendant's land, which is also the section line between sections 1 and 12, is a public highway running east and west, which continues westward between sections 2 and 11, and eastward to the township of Buel.

(5) That at the intersection of sections 1, 2, 11, and 12, which is 80 rods west of the west line of defendant's said land, there is a perceptible depression, or basin, in the land, the incline to which depression extends for approximately one-half mile west, 20 rods north, and 40 rods south, in which depression or basin at times of freshets or excessive rains a large volume of surface water is precipitated. That the natural and proper drainage for such accumulation of surface water is due eastward for approximately 1 miles, along the south side of said east and west highway to a county drain known as the "Ricket drain" in section 6 of the township of Buel, said county drain having been constructed in the year 1906.

(6) That to assist in relieving said highway from such accumulation of surface water, and to make a much needed permanent improvement thereof, and consequent benefit to the public, an ordinary ditch was constructed by the highway authorities upwards of 20 years ago from such depression or basin leading eastward and past said premises of defendant along the south side and within said highway to other drains then in operation, thereby furnishing complete and adequate drainage for said highway, causing no injury to the defendant or his said premises, or that of other abutting owners, and that said ditch has until the committing of the grievances hereinafter complained of been maintained by the highway authorities of said township of Elk, and continuously furnished complete and adequate drainage for said highway, without injury or inconvenience, directly or indirectly, to said defendant, or any other person whomsoever, and since the construction of the aforesaid Ricket drain successfully carried such surface water thereto.

(7) That, before said ditch was constructed for the drainage of said highway as aforesaid, said highway at the point of said depression or basin, and for several rods

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in each direction, on the intersecting highway, and since the committing of the grievances by said defendant thereinafter mentioned and complained of was, and is, by reason of the accumulation of said surface water, rendered dangerous and inconvenient for public travel at times of freshets or excessive rains, and that, while such conditions prevailed, said surface water would necessarily continue to remain upon said highway until it percolated through the soil or evaporated, or both, and became extremely stagnant and unsanitary.

(8) That it is physically impossible to keep said highway in a condition reasonably safe and convenient for public travel, unless ways and means for the escape of said surface water are provided, and the bill avers that the only practicable course for the drainage of said highway is as thereinafter set forth, which is evidenced by the fact that incident to the construction of the aforesaid Ricket drain the lands of said defendant and all other lands abutting said highway, including divers tracts in the interior of said sections 12, 1, 2, and 11, were assessed for benefits, and a level taken of the south side of said highway by the county surveyor of said county in October, 1910, showed a fall from said depression or basin to the outlet aforesaid for said surface water of upwards of five feet.

(9) That a sufficient growth of grass, weeds, and other foreign substances having accumulated in said highway ditch to materially affect the free flowage therein of said surface water to its outlet as aforesaid, in the month of June, 1910, the overseer of highways of said township of Elk under instructions from complainant, attempted to clean out said ditch, and free the same from said impediments by plowing two shallow furrows in the bottom thereof, and scraping to a smooth surface, but when opposite said premises of defendant, at the beginning of the work, he was interfered with, and prevented by defendant from proceeding further therewith.

(10) That about one month later complainant proceeded to finish the work which said overseer was so prevented from doing, and did finish the same in a skilled and workmanlike manner, but, immediately upon the completion of such work, the defendant proceeded to, and did fill up and obstruct said ditch from draining said highway, by throwing in brush, stones, sticks, rails, and divers other substances of similar nature, and completed such destruc

tion by plowing the earth therein from either side thereof. (11) That afterwards, in June, 1911, complainant and the overseer of highways of said township again attempted to clean out said highway ditch, and remove the obstruction therefrom which had been placed therein by defendant, and to that end started a shallow furrow in the bottom thereof, but that the defendant in an angry and threatening manner appeared and immediately filled up the furrow so plowed by complainant and the overseer, and complainant avers and charges that since it was apparent that defendant would continue to arbitrarily obstruct said ditch, and, to avoid possible violence, complainant and the overseer abandoned their efforts to continue to improve said highway.

(12) That ever since the defendant so obstructed said ditch, as aforesaid, at times of freshets or excessive rains, said highway at the point designated has been dangerous and inconvenient for public travel on account of such obstruction; there being no escape for the great accumulation of surface water. The bill of complaint was filed August 5, 1911.

The answer of the defendant admits the first four paragraphs of the bill.

(5) Admitting the first part of the fifth paragraph of the bill, he denies that the natural and proper drainage of such accumulation of surface water is due eastward as stated, but alleges that the same is immaterial.

(6) He denies that the highway authorities ever constructed any such ditch as is alleged in complainant's bill upwards of 20 years ago, or any other time, or that they ever had any right to construct such a drain.

(7) He admits the accumulation of water in the depression or basin, but denies that complainant or any other person or corporation ever had any right to empty the water from said basin, either on, over, or across defendant's premises.

(8) Whether or not it is impossible to keep said highway in condition, etc., is immaterial, as neither complain. ant nor any other person has any right to use defendant's farm or any part of it for drainage purposes. He has no knowledge as to whether any surveyor has taken levels along the south line of the highway, but he admits that his land is considerably lower than the said depression or basin, and says that if complainant is permitted to con.