#### Lowe C. Duncan et al., Commissioners of Highways of the Town of Montgomery, Appellees, v. Frank Fitch et al., Drainage Commissioners of the Birds Drainage District, Appellants.

(Not to be reported in full.)

Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.

Heard in this court at the October term, 1913.

Reversed and remanded with directions.

Opinion filed May 1, 1914.

Statement of the Case.

Petition by Lowe C. Duncan et al., Commissioners of Highways of the Town of Montgomery against Frank Fitch et ah, Drainage Commissioners of the Birds Drainage District, for mandamus to compel defendants to construct a bridge over a ditch that had been dug by them across a highway in the drainage district controlled by them. It appeared from the petition that the ditch" dug was on the right of way of a railroad company and was of the width of thirty feet and of the depth of ten feet and was not.cut in a natural water course or drain. To the petition two pleas were filed which were demurred to and the demurrers sustained. From the judgment defendants appeal.

George W. Lackey, for appellants.

Parker & Eagleton, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice McBride

delivered the opinion of the court.

*515Abstract of the Decision.

1. Drainage, § 93 * —duty of drainage commissioners to build bridges. Where drainage commissioners dig a ditch across a highway, ' not in a water course, they are required under the law to build a bridge sufficient for the convenience of public travel over such ditch and to restore the highway.

2. Drainage, § 94 * —when plea in mandamus to compel drainage commissioners to build bridge demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by the defendants at a point where such ditch crossed a highway, a plea setting up that a bridge had been constructed by petitioners and that the bridge furnished ample facilities and conveniences for public travel, held such plea, sufficient on demurrer.

3. Drainage, § 94 * —when plea in mandamus proceeding to compel drainage commissioners to build bridge not demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by defendants at a point where such ditch crossed a public highway, a plea stating that the commissioners condemned the right of way over and across the lands of a railroad company and that the ditch was constructed along the right of way as condemned against said railroad company and that by virtue of condemnation and payment of the sum found due the railroad company, the railroad was required to maintain necessary crossings for highways, held demurrable for the reason that the fact that the defendants had condemned the right of way as to the railroad company would not excuse the performance of their duty to build the bridge.