any lands which were heretofore or are now a part of any legally organized drainage district." Appellant sought to show by evidence that a portion of the land included was in another district, called the Mutual Drainage District. Counsel for appellees objected to the introduction of this evidence so far as the record of the Mutual Drainage District was concerned, and the objection was sustained. The objection of appellees was also sustained to much of the oral testimony of the witnesses offered to show such fact. At the request of the appellees the court instructed the jury that there was no evidence in the case that any of the lands included within the boundaries of said Union Drainage District were included in any other organized district. Counsel for appellees insist that under the authorities the burden was upon appellant to prove, under the pleadings, if that were the fact, that some of the lands were so included in another legally organized district, while counsel for appellant contend that the burden of proving this fact rested upon appellees.

In a long line of decisions this court has held that in proceedings by information in the nature of quo warranto the defendant, if he justifies, must set out his title specifically and must show on the face of the plea that he has a valid title to the office; that the People are not called upon to show anything; that the entire onus is on the defendant, and that he must not only show by his plea, but prove, that he has a valid title to his office, and if this proof is not made the People will be entitled to judgment of ouster. (People v. Ridgley, 21 Ill. 64; Chicago City Railway Co. v. People, 73 id. 541; People v. City of Peoria, 166 id. 517; People v. Bruennemer, 168 id. 482; McGahan v. People, 191 id. 493; People v. Central Union Telephone Co. 192 id. 307; People v. Central Union Telephone Co. 232 id. 260; People v. O'Connell, 239 id. 272; People v. Karr, 244 id. 374; People v. McDonald, 264 id. 514.) This is also the rule in other jurisdictions. The form of

the issue in quo warranto between the State and the respondent is not like that in other civil proceedings, but the defendant is called on to show title by his plea, which presents an issue of fact, and the burden of proof is upon him to establish it. (17 Ency. of Pl. & Pr. 481; Jones on Evidence,-2d ed.—sec. 193; High on Ex. Legal Remedies, 2d ed.-sec. 629; 10 Ency. of Evidence, 454.) However informally or inaptly worded the fifth additional replication was, it specifically denied the averment of the plea that no property in the proposed district was included in any other legally organized district. Appellees filed a rejoinder to the averments of this replication, concluding to the country, and the question was submitted to the jury. Under the rulings of the court, both during the trial and by instructions, it is manifest that all parties understood that this issue raised by the fifth additional replication was submitted to the jury for decision. Counsel for appellees cannot, therefore, urge the question now as to this issue. not being properly raised by the pleadings. Whatever informality there was in said fifth additional replication was waived by appellees joining and submitting the issues thereunder to the jury. Having submitted the issue under these pleadings to the jury, the burden of proof rested upon appellees to show that no land in the proposed district was included within another legally organized district. The only proof offered by appellees to sustain their contention under this issue was the record of the organization of the drainage district, and, as already mentioned, the only part of that which referred to this question was the statement in the final order of the commissioners in organizing the district, that said district did not include lands now a part of another legally organized district. This was a mere conclusion of the commissioners. This court held in People v. City of Peoria, supra, where the issue was raised by similar pleadings, that the findings of the city council of the city of Peoria of the facts constituting statutory conditions

under which the city exercised the power of annexing territory, together with the proof of the ordinance reciting such facts, did not make out a prima facie case for the defendants in a quo warranto proceeding. In People v. Karr, supra, and People v. McDonald, supra, this court laid down this same rule, stating that the drainage commissioners could not show that they had a valid title by giving in evidence their own findings and conclusions that the district was legally organized. A drainage district cannot be legally organized, in whole or in part, out of the territory of another legally organized district, and the legality of a district so organized can be inquired into by quo warranto. (People v. Lease, 248 Ill. 187; People v. Crews, 245 id. 318.) This finding of the commissioners being the only proof to support the averment of the plea in question, the court should have instructed the jury, on this record, to find for appellant on this issue. Nothing is said in Hepler v. People, 226 Ill. 275, where certain averments of the plea were not put in issue by replications, or in People v. Burns, 212 Ill. 227, which was disposed of on demurrer, that in any way conflicts with the conclusions here laid down.

The further question was raised by the pleadings and submitted to the jury as to whether all the owners of lands included in the boundaries of the proposed district had by voluntary action constructed ditches which formed a continuous line or lines and branches, as required by said section 76 of the Farm Drainage act. The lands as to which there can be on this point any serious question under the evidence, are located in the southern end of the district, south-easterly of the Wabash railroad. The following plat shows approximately the location of such lands, the rest of the district being situated north and west of the railroad. The heavy dotted line shows the boundary of the southeasterly portion of the proposed district. The small circular lines indicate where low spots in the land are situated.

Some of the witnesses called some of these low spots buffalo wallows, or sloughs:

This court has held that the legislature did not intend by said section 76 that any and all lands whose surface water naturally drained into a common outlet, could, merely because of such surface drainage into such common outlet, be

brought into a drainage district under the provisions of the said section. (People v. McDonald, supra; People v. Karr, supra; People v. Strandstra, 238 Ill. 341.) Under these authorities the owners of the lands to be brought within the district must voluntarily, by the construction of artificial ditches, connect their lands in a common outlet, also artificially constructed. This section must receive a reasonable construction. Of course, it was not intended that every foot of land in the district should have an artificial drain constructed by the owners, connected with a common outlet. It is sufficient if the owner of land included in the district has constructed in it an artificial ditch connecting with the common outlet which for all practical purposes will take care of the surface drainage of such land. If the surface drainage of a portion of such land, whether it be a low spot or not, when it runs off over the surface does not flow into this artificial ditch, then that portion of the land of the owner should not be considered as being connected by such artificial ditch with a common outlet. In view of the evidence in this record we are disposed to think that instruction 6 given for appellees was liable to mislead the jury on this point, and was certainly in conflict with instruction 5 given for appellant.

The appellant insists that some of the instructions were misleading because they omitted the word "constructed," in referring to drains and ditches voluntarily connected with a common outlet by land owners. The word should have been included in the instructions in question, but we do not think its omission was so misleading as to amount to reversible error.

One of the most serious questions raised on this branch. of the case is as to whether the evidence shows that all of the tracts of land were connected by artificial drains or ditches, voluntarily constructed, with a common outlet of the proposed district. Counsel for appellant contend that the low spot just south of the center of section 33, shown