(after stating the facts). The drain does not flow through the complainant’s land, which is located some distance away. It was constructed about the year 1871, and had never been cleaned out prior to 1904, when the complainant entered upon the lands of the defendants for that purpose. It naturally became filled to a considerable extent by accretions and other means. No one, however, had complained or had taken any steps to secure its cleaning until about the year 1900, when the complainant presented a petition to the then drain commissioner, praying that the drain be cleaned out. The commissioner denied the petition, and no further action was taken under it.
Complainant claims that he afterwards had a talk with defendant Dickinson, the drain commissioner, about taking out the obstructions, and that the commissioner said to him, “Why, you have a right to go and take them out. ” That is the sole authority under which complainant claims the right to enter upon the lands of the defendants and others and clean out the drain. The effect of his work was to lower the lake from 9 to 10& inches. The *34defendants had érected cottages and had a summer resort near the mouth of the drain. They claim that the lowering of the lake has done great damage to their property.
The drain for many years had been in substantially the same condition as when complainant cleaned it out. The amount of water that passed through it depended upon the amount of the rainfall. In some dry seasons no water flowed through it. It is evident that there would be accumulations during that period. The only evidence of its depth as originally constructed was that of some witnesses who testified that, when the bridge was built, the plank were laid at the bottom or bench of the ditch as fixed by the commissioner. The complainant’s bill alleged that he “had been unable to find the original petition and the survey bill for said drain or any copies thereof.” Upon the hearing it was conceded to be “a public and legal drain for all the purposes of this suit.”
Complainant introduced no evidence of the loss of the record of the proceedings for establishing and constructing it. The statute (2 Comp. Laws, § 4381) provides:
“Any drain that has been established for ten years shall be conclusively deemed to have been regularly established, and it shall be the duty of the county drain commissioner, where no records of such drains have been preserved, to see that the récords of such drains are made in the most practicable manner in the drain- records of their respective counties.”
There is no evidence that the commissioner had performed this duty. Whether "complainant in cleaning it out had dug deeper than the original bench or bottom is in dispute; but that he dug it wider than it originally was is well established. Three disinterested witnesses testified that it was several feet wider. This case is, in my opinion, a proper one for proceedings under 2 Comp. Laws, § 4379.
If, however, it be conceded that the complainant had the right to enter upon the lands of the defendants and clean out this drain (a right which I very much doubt), he *35was limited in that right to the original dimensions of the drain. He failed to establish such dimensions, and therefore has failed in his proofs. Before doing this, he should have secured from the drain commissioner a compliance with the statute above quoted, restoring the records as far as practicable. Whether the complainant could be authorized by the. commissioner to enter upon lands other than his own and clean out the drain through its full length, which had lain for nearly 35 years untouched, and meanwhile had become filled with natural accretions, is a question we need not determine.
Decree reversed, and the .bill dismissed, with costs of both courts, but without prejudice, inasmuch as the merits of the case cannot be determined upon this record.
Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.