cient as an acceptance, but is also a rejection of the proposal, and a termination of the liability of the proposer, to be bound by a subsequent acceptance conforming to the terms of his proposal."

These rules have been frequently applied in this court. We are of the opinion that no valid contract was made on November 12, 1915, and the theory of the bill failed.

There seems to have been nothing in the pleadings or evidence that warranted the court in making the decree a lien upon the entire property of the Occidental Club. The decree below must be reversed, but the case will be remanded to the lower court to enable the plaintiffs to proceed, if they desire, for an accounting to wind up the copartnership that existed between Mrs. Lee and the defendant. The plaintiffs, as Mrs. Lee's sole heirs at law, have a right to such accounting. That court will be able to make any amendments of the bill of complaint that may be necessary for that purpose. The appellant will recover his costs to be taxed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, and KUHN. JJ., concurred.

WABASH RAILWAY CO. v. OTTGEN.

1. DRAINS-ESTABLISHMENT-CONCLUSIVENESS-FRaud. The finding of special commissioners of the necessity of establishing a drain upon private property, and the compensation therefor, under section 4883, 1 Comp. Laws 1915, is final, in the absence of fraud.

Where, on appeal from a decree dismissing plaintiff's bill to enjoin the establishment of a drain along plaintiff's right of way, under section 4894, 1 Comp. Laws 1915, the evidence shows that a drain had previously been maintained on plaintiff's right of way, and to place it elsewhere would be more expensive, and there is no evidence of fraud, either actual or constructive, on the part of the special commissioners, the decree below wil be affirmed.

Appeal from Lenawee; Hart, J. Submitted January 11, 1918. (Docket No. 54.) Decided March 27, 1918.

Bill by the Wabash Railway Company against Conrad Ottgen, drain commissioner of Lenawee county, to enjoin the construction of a drain. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Baldwin, Alexander & Russell, for plaintiff.
Leland F. Bean, for defendant.

STONE, J. This is an appeal from a decree in the circuit court for the county of Lenawee, in chancery, dismissing plaintiff's bill of complaint.

The proceedings which plaintiff seeks to enjoin contemplate the construction of a tile drain two and one-half feet below, and in the bottom of another county drain already established and existing on plaintiff's right of way. Upon a proper application, defendant determined that the proposed drain was nec

essary and practical, and in his order of determination set forth the route of the drain. The route as surveyed is upon the right of way of the plaintiff for a distance of about 875 feet as indicated by the accompanying plat, which was attached as exhibit "A" to the bill of complaint.

The plaintiff was requested to release the right of way for the drain as proposed, which it refused to do, whereupon special commissioners were appointed by the probate court to determine the necessity for said drain, and for the taking of private property for the use and benefit of the public for the purpose thereof, and to determine the just compensation to be made therefor, in accordance with the provisions of section 4883, 1 Comp. Laws 1915.

Special commissioners met and viewed the route of the drain, and more especially where it was upon plaintiff's right of way, and made a determination and finding that it was necessary to lay said drain upon the right of way of plaintiff, as proposed, for a distance of about 875 feet, and that it was necessary to take a strip of land 50 feet in width on each side of the line of the proposed drain for the purposes thereof, along the right of way of the plaintiff, and fixed the compensation to the plaintiff at the sum of one dollar; and that the drain was to be a tile drain on the right of way of the plaintiff, and an open drain from the point where it leaves the plaintiff's right of way at the westerly end.

The right of way of plaintiff, at the point where it is proposed to construct the tile drain in question, is 100 feet wide, and there are now upon it at this point the main and side tracks of the Detroit, Toledo & Ironton Railroad Company, in addition to plaintiff's main track, and its track connecting plaintiff's main track with the main track of the Detroit, Toledo & Ironton Railroad Company. There is at the present

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time an open ditch known as the "Savage drain," on plaintiff's right of way on the northerly and westerly side of its main and connecting tracks, and the northerly or westerly slope of the track embankment makes the southerly or easterly slope of said ditch, the right of way of which open drain has heretofore been secured from the plaintiff. The drain as proposed on plaintiff's right of way follows the course of the pres

ent open ditch, and it is proposed to lower the grade of the present ditch about 211⁄2 feet and put in tile. The land lying north and west of plaintiff's right

of way is farm land, owned by private parties, and on a straight line between point marked "A" and point marked "C" on exhibit "A"; it is practically of the same level as the natural level of the lands on plaintiff's right of way, where the tile drain is proposed to be located. There is a tile drain ending at point "A"; also a tile drain known as the "Waltermire drain," which passes under the plaintiff's tracks and has its outlet near the point marked "C," and empties into the present open drain.

By the bill of complaint, the regularity of the proceedings is not questioned; and the sole ground for relief is alleged to be that the special commissioners acted fraudulently in determining that it was necessary to take plaintiff's right of way for the purpose of the drain, and in not finding that the same could equally well be laid upon private lands.

The defendant by his answer denied all fraudulent and illegal action charged in the bill, and stated that there is at present, along the right of way of said railroad, on the line of said proposed drain, an open ditch, heretofore established as a county drain, and that said ditch is approximately 15 feet in width at the top, and between five and seven feet deep, varying in places, according to the bank; that the specifications of said proposed drain on plaintiff's right of way, require a tile drain to be placed in the bottom of said open drain already existing, and that excavating in the bottom of said existing drain will not exceed 212 feet, and only so much as is necessary to lay the tile required by said specifications, the same being 20-inch tile.

At the hearing it was claimed by the plaintiff that the construction of the drain upon its right of way would injure it for railroad purposes, and that it could equally well be laid upon private lands, and there was testimony tending to support said claim; and it