delivered the opinion op the Court.
This is an appeal from a decree requiring appellant to restore tile taken up by him, and to remove the earth from an open ditch filled up by him, and enjoining him from thereafter interfering with the same as a drain from appellees’ lands.
It was shown that James Wilson and appellant owned for many years adjoining lands. There was a highway on the line between them. There was a pond on Wilson’s land, and appellant’s land was lower and in the direction of the natural drainage. Each party made and maintained an open ditch on his land by plowing and scraping it out as an outlet for the water which passed along the ditch and through a culvert in the road. By this means the water in the pond was lowered, but the pond was not entirely drained. In the fall of 1890, a son of James Wilson, at the instance of his father, went to appellant to make an arrangement to drain the pond by laying tile on appellant’s land to a low place along the line of the open ditch where there had been a well which had been filled up. Appellant consented, and paid for the tile, and Wilson hauled the tile and put them in. In the fall of 1893, appellant found that the water from the tile had washed the open ditch below to a depth of two feet and about ten feet wide, a,nd was dissatisfied with that result. He commenced taking up the eight inch tile and substituting four inch tile. This suit followed, and appellant afterward filled up the open ditch below the tile and planted it in corn with the rest of the field.
It is claimed that appellant’s consent or agreement was conditional, and that the condition was that the tile should not do him any harm. The evidence justified the court, in our opinion, in the finding that there was no such condition.
The second claim is that the license only extended as far as the tile was laid, and that there was no agreement that the water might flow from the end of the tiling across appellant’s land, and therefore he could shut up the outlet. The open ditch existed from the end of the tiling when it was laid, and it is clear that the understanding was that the title would discharge water into it, which would be conducted by that means across appellant’s land. The act concerning ditches constructed by license, in force July 1,1889, prohibited appellant from filling it up or in any manner interfering with it, without the consent of all the parties to the arrangement. 3 Starr & Curtis’ Stat. 475.
Appellant filed an amendment to his answer claiming the benefit of the statute of frauds, and it is argued that the license in question, not being in writing, was within the statute. This contention is met by the act of 3 889 above referred to, which provides that such license, consent or agreement need not be in writing but may be verbal, and may be inferred from the acquiescence of the parties in the construction of such drain.
It is said that the tile extended beyond the pond which was to be drained, but the evidence shows the contrary.
Appellees are owners of the lands of said James Wilson, who died since the making of the agreement and construction of the drain, and devised the lands to them. We see no error in the record and the decree is affirmed.