"There is a public drain lying along the south side of my 40 called the Southwest Blendon drain. It doesn't carry off the water because it is not wide enough. It is deep enough.

"Q. But not wide enough?

"A. The water cannot go away; it just fills up and stays that way.

"Q. It isn't cleaned out, is that the reason? "A. No, just filled up and stayed that way.

"Q. Because there isn't enough fall, or what is it? "A. No place where it can go to.

"Q. Because the sand has filled it in?

"A. No, it just stayed there, nice and clean; the water just stayed there.

"Q. What I am trying to find out why is it that the water from your land there doesn't go through the Southwest Blendon drain?

"A. Well, it can't.

"Q. Why not?

"A. There ain't no room for it; it don't want to go west.

"Q. It goes onto Chris De Jonge's land?

"A. That is just the only place.

"Q. That is west, isn't it?

"A. Yes, that is a little west.

"Q. If this Southwest Blendon drain was widened and cleaned out, wouldn't that take the water? "A. Well, of course it would."

Mr. Fellows, the county drain commissioner, testified:

"These are private drains, two or three of them that run into the Southwest Blendon drain. It brings in oceans of sand from the fill and makes great bars and shuts up the flow of the Southwest drain. The water goes over the top onto Mr. De Jonge's land and down the Bosch & Hultz drain.”

After the defendant built the ridge, no steps were taken to clean out the Southwest Blendon drain, but an attempt was made to change the private drain of the defendant into a public drain. To this the defendant objected unless the outlet of the Bosch & Hultz drain should be enlarged sufficiently to take care of the increased flow of water, and stated:

"Q. Would you be willing, if the outlet of the Hultz, the Bosch & Hultz drain is opened, to have your private drain made into a public one, so that Huyser and Bowens can get rid of their water?

"A. Yes, sir; if they widen the Hultz drain in proportion.

"Q. So as to get rid of the water?

"A. Yes."

A study of this record is convincing that if the Southwest Blendon drain were properly cleaned out the natural flow of the waters along the highway under ordinary conditions would be taken care of, and that unless this is done the waters are forced onto the defendant's land, where they have no sufficient outlet, which results in damage to the defendant. We agree with the circuit judge:

"That the complainant has failed to establish a right by prescription to empty the water from the public drain through this culvert upon the lands of the defendant."

Under these circumstances, neither the public, nor a private individual, where waters gather through neglect to take the proper steps to cause them to flow along their natural course, can turn the waters upon the lands of another, to his damage.

In Elliott v. Carter, 140 Mich. 303, 305 (103 N. W. 600), this court said:

"That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled. 2 Farnham on Waters & Water Rights, 960; McAskill v. Township of Hancock, 129 Mich. 74 [88 N. W. 78], 55 L. R. A. 738); Breen v. Hyde, 130 Mich. 1 [89 N. W. 732], and authorities there cited; Smith v. Township of Eaton, 138 Mich. 511 [101 N. W. 661]."

The decree is affirmed, with costs to the defendant.

MCALVAY, C. J., and BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

WANNEBO v. STONE.

1. SALES-PRINCIPAL AND AGENT-CONTRACTS-LOGS AND LOGGING. Where the owner of certain lands agreed with a contractor to finance the cutting and marketing of the timber and the contractor agreed, for a compensation stated, to carry on the operations and to cause the lumber to be scaled and graded on the docks at Grand Marais, Minn., the contract providing that title should remain in the proprietor and the contractor should have a lien on the product to secure his advances, and that he should assist the owner to find a purchaser, but no sale should be made without the consent of the owner, a sale made by the contractor at a price to which the owner of the lumber made no objection, the transaction, being later confirmed in correspondence with the purchaser of such lumber, was sufficient to pass title.

2. SAME-TROVER AND CONVERSION-AGENCY.

Plaintiff's letter advising the purchaser that the contractor had no title to the lumber, that all his right was simply a lien and stating "that the full value of the lumber must be accounted for and paid to me, and not to Mr. Mayhew (the contractor)," amounted to an affirmance of the sale, in the absence of any showing that plaintiff objected to the price at which the lumber was sold or that it was too low or was unsatisfactory, and defeated any right of the owner to bring an action of trover against the buyer.

Error to Wayne; Hally, J. Submitted April 17, 1914. (Docket No. 65.) Decided July 24, 1914.

Trover by Hans Wannebo against Fred J. Stone for the conversion of certain lumber. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.

Davis & Bromley, for appellant.
Fred H. Aldrich, for appellee.

This is an action of trover brought by the plaintiff against the defendant to recover the value of a ship

load of lumber, about 517,000 feet, taken by defendant from piles on the dock at Grand Marais, Minn., on or about November 15, 1911. The claim of plaintiff is stated as follows:

"It was the claim of the plaintiff, Hans Wannebo, that on or about November 15, 1911, he was the owner of about 517,000 feet of pine lumber piled upon the dock at the village of Grand Marais, Minn., and that one George Mayhew, under an agreement in writing with the plaintiff, dated May 31, 1911, had cut and hauled the timber for said lumber to the sawmill, and had caused the same to be sawed into lumber, and had caused the same to be hauled and piled on the dock at Grand Marais, Minn., and that for the expense thereof, with certain other interests therein, was to have had a lien thereon, and that in the sale of said lumber the said Mayhew should assist the said plaintiff in finding a purchaser or purchasers at the highest prices for which the same could be sold, but no sale should be made, except with the consent and approval of the said plaintiff, Hans Wannebo; and it is the further claim of the plaintiff that on or about November 15, 1911, the said George Mayhew, without the consent and approval of the said plaintiff, Hans Wannebo, sold all of said lumber to the said defendant, Fred J. Stone, who took possession thereof and converted it to his own use, and the plaintiff having proven such facts as claimed by him, by a fair preponderance of the evidence in the case, then he was entitled to recover a verdict in this case for the value of his interest in the lumber at the time of such conversion by the said defendant, Stone."

The contract, in terms, is as follows:

"This agreement, made and entered into this 31st day of May, 1911, by and between George H. Mayhew, of Grand Marais, Minnesota, and Hans Wannebo, of Duluth, Minnesota.

"Witnesseth, whereas, said Wannebo is the owner of the southeast quarter of the southeast quarter of section 20, the south half of the southwest quarter of section 21, and the north half of the northwest quarter of section 28, in township 62 north, of range 1 east, of the 4th P. M., upon which is considerable timber

which he desires cut and made into lumber and then sold, but is without financial ability to carry on said transaction; and whereas, said Mayhew desires to finance said operations and cause the same to be carried on at the mutual profit of both of said parties:

"Now, therefore, this witnesseth, that said Mayhew agrees to immediately commence and to continue in a proper, workmanlike, and business way to the completion thereof and cause all the standing and down pine and spruce timber on said land which will make a log six inches or more at the top, and suitable for lumber, to be cut into appropriate lengths and drayed or wagon-hauled to the portable saw-mill herein stated; to cause to be immediately erected at some suitable place on said land a portable sawmill with a daily capacity of about 12,000 feet, and there cause said mill to be continuously operated in a business and workmanlike manner, and said logs to be sawed into merchantable lumber, and of dimensions which may be most profitable, and thereupon to cross-pile the same and there keep it until weather conditions shall permit of its being hauled on wagons during the present season to Grand Marais; that thereupon he will wagon-haul all of said lumber, except that which grades either numbers 4 or 5, but including all of said spruce lumber, to the dock at Grand Marais, Minnesota, and there properly grade, correctly scale, and stock-pile the same; to furnish said Wannebo correct duplicates of said scale at different times as said lumber is so scaled; to employ one * * * or some other competent person agreeable to said Wannebo, whose duty it shall be to supervise and direct said sawing, so that the same shall make merchantable lumber of the greatest market value, and whose duty it shall also be to properly grade, assort, and scale the same; to make prompt and punctual payment for all bills and claims which may be incurred on account of said entire work, so that no lien shall accrue against any of said lumber, and to indemnify and save said Wannebo harmless from all costs and liability which may arise by reason of any of said work herein contemplated; to finance said entire operation, that is to say, that he will promptly furnish and provide all moneys necessary to promptly and efficiently carry on the same to a sale of said products,