On Petition for Rehearing.
Monks, J.7. Appellant concedes in its petition for a rehearing that the duty of railroads as to highway crossings, whether established before or after the railroad was built, was correctly stated in the opinion of the court, but insists that, the duty of railroads as to public drains, where the railroad crosses said public drains, is not now the game as it is at highway crossings, because the common law was changed as to such drain crossings by section three of the drainage law of 1907 (Acts 1907 p. 518, §6142 Burns 1908).
The part of said section necessary to the determination of this question requires the drainage commissioners to “ assess the benefits or damages as the case may be to each separate tract of land to be affected thereby, and to easements held by railway or other corporations, as well as to cities, towns, or other public or private corporations, including any land, rights, easements or water power injuriously or beneficially *42affected and to report to the court, under oath, as directed.”
Substantially the same provision in regard to assessing the “ benefits or injury ” to easements held by railroads was contained in section three of the drainage law of 1881 (Acts 1881 [s. s.] p. 397, §4275 R. S. 1881), and in section three of the drainage law of 1885 (Acts 1885 p. 129).
There is nothing in said drainage laws of 1881, 1885 and 1907 that in plain and unequivocal terms changes or abrogates the common law as to the duty of railroads when the railroad crosses public drains. Does §6142, supra, by implication abrogate the common law as to said duty of railroads?
8. Since 1807 the common law has been in force in this State by virtue of legislative enactment. §236 Burns 1908, §236 R. S. 1881. See Stevenson v. Cloud (1839), 5 Blackf. 92.
9. It will be presumed that the legislature does not intend by a statute to make any change in the common law beyond what it declares either in express terms or by unmistakable implication. The construction of a statute will be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the act in question. Endlich, Interp. of Stat. §127; Black, Interp. of Laws 110; 2 Lewis’s Sutherland, Stat. Constr. (2d ed.) §§454, 455; Maxwell, Interp. of Stat. (2d ed.) 96; 26 Am. and Eng. Ency. Law (2d ed.) 662-665; 8 Cyc. 373-376; State v. Wilson (1862), 43 N. H. 415, 82 Am. Dec. 163, 164; Chadbourn v. Chadbourn (1864), 91 Mass. 173; State v. Pulle (1866), 12 Minn. 164; Jennings v. Commonwealth (1835), 34 Mass. 80; State v. Norton (1850), 23 N. J. L. 33; Goodwin v. Thompson (1849), 2 G. Greene (Iowa) 329; State v. Dalton (1908), 134 Mo. App. 517, 525-530, 114 S. W. 1132, and cases cited.
As was said in the case of Chadbourn v. Chadbourn, supra, at page 173: “Repeals are not to be favored by implica*43tion, and courts of law are scrupulously careful not to sanction such repeals, unless the intention of the legislature to abrogate the previously-existing law is clearly manifest. Whenever it is apparent that a different purpose may be attained without essentially impairing the effect of the operative words of the statute, that construction is to be adopted which will leave the common law or an earlier enactment in force.”
It ivas said in the case of State v. Norton, supra, at page 40: “When the common law and a statute differ, the common law gives place to the statute, only where the latter is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. 1 Blackstone’s Comm. *89. It is a rule of exposition that statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature intended to make any innoA^ation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced, for if the parliament had had that design, it is naturally said they would have expressed it. Dwarris, Statutes 695.”
7. There is nothing in §6142, supra, showing any intention on the part of the legislature to repeal the common law as to the duty of railroads at public drain crossings, but said section can be construed under the authorities before cited so that the common law as to such duty of railroads and said section can both stand. It is evident therefore that §6142, supra, did not repeal the common law as to the duty of railroads at public drain crossings, as claimed by appellant.
Petition for rehearing overruled.