On Rehearing.
Bruce, J.A petition for a rehearing has been filed, which calls our attention to a specific finding of the trial court that the piles of the bridge in question did in fact impede the natural flowage of the river, and which insists, that since the proceeding before us is one in mandamus we are bound by such finding of fact upon this appeal. Counsel is entirely correct in this contention, and to that extent we erred, and must modify our original opinion, as there was at least some evidence in support of the finding.
Counsel also complains of our statement that the action was brought for the benefit of the contractors, rather than of the drainage board, and calls our attention to the fact that in its original contract the board had agreed to be responsible for the removal of the bridges. In this also he is correct, and our language was, perhaps, unfortunate. Instead of saying, as we did, that it was our belief that the action was brought ufor the benefit of the contractor, and not of the drainage board or of the counties interested,” we should have been content with the latter portion of the statement, which was “that the proceedings were brought *640not for removing the nuisance of the alleged obstructions to the stream as a drainage conduit, but to allow the dredge and houseboats of the contractor to pass under the same.”
Although these concessions do not materially affect our ultimate conclusions, they must and should result in a modification of the writ, rather than in the quashing thereof, which we heretofore ordered.
Counsel also further emphasizes the cases of Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175, affirming 212 Ill. 103, 72 N. E. 219, and Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, together with other additional cases and claims that the easement of drainage along and through an unnavigable water course carries with it the easement of navigating dredges and barges on such course and through bridges which are lawfully built and which otherwise are adequate and accommodated to fully carry off the waters of the drain, and to tear down such bridges at the expense of the owner in order to allow the boats and dredges to pass, even though they accommodate such waters, provided that the use of such dredges and barges is reasonably necessary to the economical construction of the drain.
We have carefully examined the cases cited by counsel for respondent, and in none of them do we find authority for the whole contention of counsel; that is to say, that it is the duty of the railway company not only to make provision for the drainage of the stream, but for its navigability also. It may be true that drainage is an exercise of the police power, and that under that so-called power, and in the promotion of the public health and interest, the public may require the removal of all artificial obstructions to the drainage of non-navigable rivers. It by no means, however, follows that it may compel one property owner to bear a cost of the improvement of the stream or of the drain, which is not borne by others. It may be conceded that the use of the flatboats was economical and intended to reduce the cost of the improvement of the stream to all of the property owners who were assessed for the improvement. Why, however, a railway company or a municipality should be compelled to remove at its own expense valuable property which is not an obstruction to the stream, so that the cost of the improvement may be reduced to these others, it is difficult for us to see. None of the cases cited by counsel in fact bear out his proposition. The ease *641of Chicago, B. & Q. R. Co. v. Illinois, supra, on which much reliance is placed, certainly does not. In this case it was shown that the buttresses of the bridge and the foundations of the bridge obstructed the drainage, and were themselves an obstruction in the stream. They bore the same relation in that case that the piles do in the present case. All that was attempted to be done was to compel the removal of these obstructions, not that the boats might pass the bridge, but that the drain itself might be cleared and excavated. It was never intended or claimed that, if the buttresses could have been removed and the channel broadened without tearing down the bridge, the removal of the whole bridge could or would have been ordered; that is to say, that the removal of the whole bridge could or would have been ordered, not because the buttresses interfered with the drainage or themselves created or constituted an obstruction to the stream, but because the superstructure of the bridge prevented the passage of the dredges and boats.
The case of New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 452, 49 L. ed. 831, 25 Sup. Ct. Rep. 471, is also not in point. In that case gas pipes were constructed in the street of a city, the fee •of which was in the public. The removal of these gas pipes was necessary in order that a drain might be constructed. In other words, the gas pipes were in the channel of the drain. All that the court held was that the gas company could be compelled to remove its pipes.
The case of Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48, is also not in point. In this case navigation was involved. All that was held was that a pier which is erected by the United States on land submerged under navigable water, the title to which is owned by the riparian proprietor, and which permanently ■destroys such proprietor’s “access to the navigable waters, does not entitle him to any compensation, under U. S. Const. 5th Amend, prohibiting property to be taken for public use without just compensation, since the title to the land, whether owned by the riparian owner or by the state, was acquired subject to the rights which the public have in the navigation of such waters.”
The case, too, of Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, on which counsel for respondent bases so much of his argument, in no way supports his proposition. Counsel ignores the fact that this case was commented on and explained in the later case of *642State ex rel. Fadley v. Henry County, 151 Ind. 96, 60 N. E. 939, and that in this later case the court said.: “After giving the required notice the drainage commissioner is by the statute authorized to let the construction of the ditch to the lowest and best bidder. Burns’s Bev. Stat. 1894, § 5626. In this case, however, for some reason, it appears, it was stipulated in the contract that the contractor should be relieved of the expenses and duty of removing these bridges. But conceding, without deciding, that the relator had the authority to embrace such a stipulation in the contract, he certainly by so doing could not cast the burden and. duties upon the appellees, or either of them, of removing the bridges at the expense of the public. The mere fact that the highways of which the bridges were essential parts may have been assessed with benefits in the drainage proceedings would not make it the duty of appellees, or any of them, to remove these bridges. If their removal became necessary in order to enable the contractor to successfully carry out his contract, it certainly was no more the duty of the board of commissioners or township trustees to incur the expense of their removal than it would have been to cause the removal of trees or other obstructions along the course or route of the proposed drain. Counsel for appellant relies in support of his contention upon the decision, of this court in the case of Lake Erie & W. R. Co. v. Cluggish, supra. In that case the commissioner of drainage, together with the contractor, sought to enjoin the railroad company from interfering with or preventing them from removing a bent supporting a bridge belonging to the railroad company. It was not contended in that appeal thai the company should remove the bent and open the bridge at its own expense in order to accommodate the contractor in dredging in or along the stream spanned by the railroad bridge. No question of that character was presented or decided in that cause. The claim of the drainage commissioner and of the contractor was that they had the right, in the construction of the drain, to go through the bridge, and whatever damages resulted therefrom to the railroad company must be considered as satisfied by reason of a certain reduction which had been made in the amount of benefits assessed against the company in the proceedings to establish the ditch. The question presented and decided on the facts in that appeal, and the one here involved, are materially different, and consequently that decision lends no support to appellant’s contention.”
*643The case of State ex rel. Fadley v. Henry County, supra, indeed, holds fairly and squarely against the contention of respondent. Its holding is: “Mandamus will not lie at the suit of the drainage commissioner against the county commissioners and township trustees to compel them at public expense to remove iron bridges over a water course in the county, in order that the contractor appointed by the drainage commissioner to construct the ditch may proceed with the work, though the necessary dredging machines can neither pass under nor around the bridges.” The case, it is true, is one against the county commissioners, and involves a municipal bridge, but it must be clear to all that if the drainage board is held by this court to have the power to compel the removal of a railroad bridge at the expense of the railway company under circumstances such as those before us, it must also be conceded to have the power to compel the removal of municipal bridges at the public or municipal expense.
The riparian owners whose rights were injuriously affected would undoubtedly have had the power to require the company to remove the artificial obstructions to the flow of the water, and, if it refused to comply with the request, the power to do so themselves at the expense of the company. The commissioners, perhaps, had the same fight where the obstructions were artificially created, that is to say, to require the removal of artificial obstructions, though the removal of the dirt itself should have been done at the expense of the drainage fund, as it was for that very purpose that the fund was created. Where, however, is there authority for holding that the company should or can be compelled to remove at its own expense a structure which was lawfully erected in furtherance of a quasi-public undertaking, and which does not in any way impede the passage of the water ?
An examination of the record in the case at bar can indeed lead to but one conclusion, and that is that what the commissioners principally desired was the removal of the bridge to allow the dredges to pass, and not the removal of the bridge to accommodate the flowage of the river. The stipulated facts show conclusively that the removal of the superstructure was not necessary to the removal of the obstruction to the flowage, and that the railway company could, if left alone, have removed that obstruction to the flowage for at least $800 less than the cost of the removal of the whole bridge. The stipulated facts are as *644follows: “That said trestle and bridge is built upon piles and timbers driven into and sunk in the bed of the said river and in the banks thereof adjacent thereto; that said trestle and bridge so built as aforesaid is now owned, controlled, and operated by the said defendant as a part of its said line and as the means and method of crossing said river; that said bridge and trestle consists of the following parts, that is to say: (1) The piles and other timbers sunk, driven, or extending into and through the water and into the bed of the stream or other ground adjacent thereto; (2) the superstructure consisting of stringers laid on caps on top of said piles, which said stringers support the ties, rails, and other materials and substances which may be called the superstructure, and constitutes the roadway proper upon which the trains of the defendant are operated; that said superstructure has no support other than, and could not stand or exist or serve any purpose without, the support of the piling referred to in No. 1 unless otherwise supported. That said piles forming the support of the superstructure are set in rows of five each, with 14 feet 6 inch centers, that is, the centers of the piles in said rows are 14 feet and 6 inches from the center of the closest adjacent row; that said piles average from 9 inches to 18 inches in diameter, and are sunk or driven approximately 22 feet into the ground; that the greatest depth of water in the stream at the bridge is approximately 4 feet, and that the surface width is approximately 125 feet.” It is further stipulated “that the piling now supporting the bridge are driven to such a depth that the removal of the earth across the right of way, under the bridge, without removing or disturbing the piling to the depth and width, could be done by the joint drainage board, and not impair its strength or carrying capacity, and would not impose any expense on the railroad company in repairing or maintaining the bridge. . . . That it would be possible to excavate earth material in the channel of said stream underneath and about the bridge of the defendant at an expense of $500, such work to be done by men upon small boats or wading in the channel, or other methods; that it would be possible to remove the piling and other supports for said bridge at an expense of $300, and substitute therefor piling and supports which would conform to the requirements of said drainage board, at the expense of $350; that the cost of removing the superstructure and replac ing it upon the piles and supports placed as required by the said boart *645is the sum of $800. . . . That the defendant’s superstructure over the Mouse river at the point in question is so located that it never has obstructed the natural ivater flow of said river at any time; that said superstructure is supported by a large number of boats or rows of piling, eighty-seven in number; that by reason of the manner of supporting said superstructure a large opening is left underneath the same, so that all water which accumlates in said river can and always has passed under said superstructure without interference other than by said roius of piling; that all the additional flowage resulting from the proposed improvements can and will flow under said superstructure freely and without interference therefrom.”
Much is said by counsel concerning the right of the drainage board to use economical means of construction, and to thus lessen the cost of such construction to those who would be assessed for the improvement. Why, however, in the case of a drain which is primarily for the benefit of the lands of the abutting owners, and to enhance the value thereof, and for the benefit only of those abutting owners, a common carrier engaged in both intra and inter • state commerce should be compelled to pay for the cost of the economical method, and to remove a structure which is not only property, but which is constructed in furtherance of its franchise and of its public duties, and which is for the benefit of the public as much as for itself, it is difficult to see. Expenses involved by reason of an economical improvement should, it would seem, be borne by those benefited thereby. Any other rule would put a stop to the construction of durable bridges across all of our water courses, not merely by railway companies, but by municipalities as well, as in such case the municipalities would and could never know what future machinery might not be invented and become economical and necessitate the tearing down of the improvements which they might make.
The title of the railway company in the stream and in the land over which the stream runs is a title in fee, subject only to the right of the upper riparian owners to the free flowage of the water thereover, and of the lower riparian owners also to have that flowage unobstructed. The rule is laid down in the case of Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570, where it is said: “Section 210 of the Constitution does not prohibit the diversion of a portion of a non-navigable water *646course, where such diversion is needed for a public use, the substantial integrity of the stream not being thereby impaired. Under the statute of this state, the right of the riparian owner to have a natural stream flow over his land is such property as may be condemned for railroad purposes.” “It is next urged that the statutes relating to eminent domain do not authorize the condemnation of .the riparian rights of the owner of land through which flows a water course. The provisions of our statutes on this subject do not sustain this contention. Rev. Codes, § 5958, Subdiv. 6, declares that ‘all classes of private property not enumerated may be taken for public use when such taking is authorized by law.’ Rev. Codes, § 2947, subdiv. 3, provides that railroad corporations authorized to operate or maintain railroads in this state shall have power to acquire, under the provisions of the chapter on eminent domain, all such real estate and other property as may be necessary for the construction, maintenance, and operation of the road, etc. Here is distinct authority to condemn any kind of property that is necessary. See also 1 Rorer, Railways, 444; Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155. Surely, it will not here be claimed that the riparian rights of these defendants do not constitute property. If they are not property, on what principle can the defendants claim damages for their destruction? Indeed, there is eminent authority for the doctrine that such a right is real estate. Johnson v. Jordan, 2 Met. 234. See also St. Helena Water Co. v. Forbes, 62 Cal. 182, 45 Am. Rep. 659. That real property may be condemned does not admit of question. Rev. Codes, § 2947,. subdiv. 3; Id. § 5958, subdiv. 1. Under statutes similar to ours, riparian rights have been condemned. St. Helena Water Co. v. Forbes, supra. See also Rumsey v. New York & N. E. R. Co. 133 N. Y. 79, 15 L.R.A. 618, 28 Am. St. Rep. 600, 30 N. E. 654. . . . That the company could, under our statute, condemn the riparian rights without also taking the fee of these lands, does not admit of doubt. See St. Helena Water Co. v. Forbes, supra. It is also contended that if our statute permits the diversion of a water course, such a statute is repugnant to the state Constitution. Section 210 of the Constitution provides that ‘all flowing streams and natural water courses shall forever remain property of the state for mining, irrigation, and manufacturing purposes.’ It was conceded in the argument of this case that this section *647of the original law does not impair the property rights of a riparian owner in the waters of a natural stream. At common law the owner of land through which a non-navigable stream flowed was possessed of the title to the bed of the stream, as well as the right to a reasonable use of the water. The land under the water was his. The right to a reasonable use of the stream was as much his property as the land itself. The course of the stream could not be so diverted as to cause it to cease to flow in its accustomed channel upon his property. Gould, Waters, § 4; Angelí, Watercourses, §§ 1-4; Green Bay & M. Canal Co. v. Kaukauna Water Power Co. (Patten Paper Co. v. Kaukauna Water Power Co.) 90 Wis. 370, 28 L.R.A. 443, 48 Am. St. Rep. 937, 61 N. W. 1121, 63 N. W. 1019 and cases cited. These doctrines of the common law were in force in the territory of Dakota at the time of the adoption of the Constitution of this state. By virtue of them, the riparian owners in the territory were vested with the specified property rights, in the bed of all natural water courses, and in the water itself. Such rights were under the protection of the 14th Amendment to the Federal Constitution, which protects property against 'all state action that does not constitute due process of law. It follows that § 210 of the state Constitution would itself be unconstitutional in so far as it attempted to, destroy those vested rights of property, if it should by construction be given a scope sufficiently wide to embrace such matters. For this reason we feel constrained to hold, despite its broad language, that § 210 was not framed to devest the rights of riparian owners in the waters and bed of natural water courses in the state.”
In addition to this we have § 4808, Bev. Codes 1905, which provides: “The owner of land in fee has the right to the surface and everything permanently situated beneath or above.” Section 210 of the state Constitution provides: “All flowing streams and natural water courses shall forever remain the property of the state for mining, irrigating, and manufacturing purposes.” Section 1837, Bev. Codes 1905, provides': “Drains may be laid along, within the limits of, or across, any public road, and when so laid out and constructed, or when any road shall thereafter be constructed along or across any drain, it shall be the duty of the board of county commissioners, or township supervisors, as the case may be, to keep the same open and free from *648all obstructions. A drain may be laid along any railroad when necessary, but not to the injury of such road; and when it shall be necessary to run a drain across a railroad it shall be the duty of such railroad company, when notified by the board of drain commissioners to do so, to malee the necessary opening through said road, and to build and keep in repair suitable culverts or bridges.”
Paragraph 3 of § 7575, Bev. Codes 1905, seems clearly to provide that the right of eminent domain can be used for draining any county, incorporated city, village, or town, raising the banks of streams, and removing the obstructions therefrom, and widening, deepening, or draining their channels.
It may be conceded that the drainage board had the right, as agents of the parties interested and' perhaps of the state as a whole, to require the removal of any material and artificial obstructions to the flowage of the water in the stream. It may also be conceded that the upper riparian owners would'have had the right, in case of an obstruction which was injurious to them, or in case of the failure of the railway company to remove the same, to themselves enter upon the land of such company, and to remove it at its expense. Beyond this, however, the law does not seem to go.
The order of the district court, therefore, which required the removal of the entire bridge, went altogether too far. After considering the petition on rehearing, we are constrained to withdraw what we said in the principal opinion as to the obstruction offered by the piles of the bridge to the flow of the river, as the trial court found the issue against the defendant and appellant, and we must be governed by this finding, as there was at least some creditable evidence in support thereof. All, however, that the court should have ordered, and could have legally ordered, was the removal of these artificial obstructions to the flowage of the water. It had no right to order the removal of “the 100 feet of its trestle and bridge, and the piles and timbers supporting the same at the point thereof, where said removal is necessary and required to permit the passing down the Mouse river of the dredge and boats of the France Dredging & Construction CompanyWe are by no means sure that in the case at bar the removal of the piles constituting the obstruction to the flowage would not necessarily involve the removal of the superstructure also, and that there could be *649no other means adopted to support that superstructure during the necessary changes, but this, however, is a matter of detail which we cannot well here determine. All that the record shows, indeed, is that the superstructure is now supported by these piles, and it is silent upon what procedure would be necessary or possible in the case of the making, of the improvements, and whether temporary supports could be furnished or not. The important thing, anyway, is the rule of law, and that we have endeavored to announce.
The judgment of the District Court is reversed, and the cause remanded, with directions to enter a judgment and to modify its writ in conformity with the conclusions of this supplemental opinion.