delivered the opinion of the court:
The counsel for the complainant, in their brief filed in this court, call our attention to the fact that the Appellate Court was laboring under a misapprehension when it assumed that the order of September 6,1890, modifying the injunction so as to permit the defendant to proceed with the construction of its road-bed and the completion of its track in the manner proposed by it and at the place mentioned in the bill, was entered upon the suggestion and proposition of the complainant. We have examined the record and find that it contains no evidence that the injunction was modified in the manner indicated with the consent of the complainant, but the modifying order seems to have been entered wholly on the motion and at the instance of the defendants. The misapprehension probably arose from a statement in the complainant’s brief filed in that court, in which, by a typographical error, as is now claimed, the word “appellant” was used in place of the word “appellee.”
It appears, however, that after the injunction had been modified the complainant filed its supplemental bill, in which, after setting out the modified injunction order, it was alleged that the defendant had failed to comply with the order in this, that it had failed to construct its artificial ditch as deep as and on a level with the bottom of the channel of the original water-course, and of equal capacity with such original water-course; and the supplemental bill prayed, among other things, that the defendant be required, within a reasonable time to be fixed by the court, to construct its artificial ditch,for conveying the water, as deep as and on a level with the bottom of, and having the same capacity as, the original water channel.
It seems to us to be very plain that the allegations and prayer of the supplemental bill constituted a conclusive admission by the complainant of the propriety of the amended injunction order. The complainant, by that bill, asked the court to enforce the amended order, and if a decree had been entered in accordance with the prayer of that bill the complainant would have been clearly estopped to claim that the order of which it had thus obtained the enforcement was improper and erroneous. And the court having found, from the evidence, that the order had already been fully complied with, and having refused a decree for that reason, the admission to be implied from the.filing and prosecution of the supple-' mental bill is, so far as we can see, no less conclusive. The complainant can not be permitted, after having attempted to enforce the order as a proper and valid order, and failed to obtain the decree prayed for, to turn around and insist that the order ought not to have been entered. We therefore reach practically the same result at which the Appellate Court arrived, viz., that the complainant is estopped to question the propriety of the amended order. The complainant is as fully concluded by the admissions to be implied from the filing and prosecution of its supplemental bill as it would have been if the order had been originally entered on its motion or by its request.
The only question presented, then, is one of fact, viz., whether the evidence sustains the finding of the court that the artificial ditch, as constructed by the defendant railway company, was in substantial compliance with the order of the court amending the original injunction. We have examined the evidence with care, and while we find it to a considerable degree conflicting, we are unable to find any such preponderance in favor of the complainant as would justify us in disturbing the finding of the circuit court. And especially is this so in view of the fact that the chancellor, in addition to hearing the evidence preserved in the record, visited the premises at the request of the parties, for the purpose of viewing and examining them for himself, and of determining from actual inspection whether the artificial ditch was constructed in conformity with the order of court. What he learned from such examination was not, and from the nature of the case could not be, preserved in the record, but was matter proper to be considered by him in passing upon the issues presented by the pleadings. Under these circumstances we would be justified in setting aside his finding only upon considerations of the clearest and most satisfactory character. It is scarcely necessary to say that no such considerations are presented by this record.
Counsel for the complainant have presented an elaborate array of the authorities bearing upon the rights of riparian proprietors upon natural water-courses to have such water-courses continued and allowed to run in their natural channels. We have no doubt that the law is substantially as they claim, and a riparian proprietor who stands upon his rights is entitled to have those rules enforced and applied. But the complainant in this case, by seeking to compel the defendant railway company to construct an artificial ditch in a certain manner, to take the place of the natural water-course, virtually abandoned its rights in the natural water-course, and can not now invoke rules of law applicable to rights which it has thus abandoned.
We are of the opinion that the decree of the circuit court was warranted by the evidence, and the judgment of the Appellate Court affirming the decree will accordingly be affirmed.
Judgment affirmed.