assessment and for an annual assessment for repairs are separate and distinct proceedings and must be prosecuted as such. The fact that an additional assessment is ordered before a prior assessment has been spread and that the costs will be reduced by combining them as one proceeding is no justification for the procedure. The statute, and not expediency, must govern. Neither did section 18 of the Levee act confer any authority upon the jury to make the second assessment against the lands of the four plaintiffs in error last mentioned when they were spreading the third assessment and the annual assessment for repairs. That section only authorized prior assessments to be included with subsequent assessments when such prior assessments were void and unpaid on account of some irregularity in the proceedings in which they were attempted to be levied not affecting the merits of such assessments. The second assessment against these lands was unpaid because it was in part levied for a purpose not authorized by law and was spread by interested persons. These were not mere irregularities in the proceedings but affected the merits of the second assessment, and the only method by which the second assessment can be made against the lands of the four plaintiffs in error last named is by further proceedings under the petition for the second assessment in accordance with the mandate of this court in Vandalia Drainage District v. Hutchins, supra. The first assessment against the lands of Moses Hutchins is in the same condition. It is not unpaid because of a mere irregularity in the proceedings, but because the amount assessed against those lands included an assessment of benefits against about fourteen acres of land which the district has taken for right of way purposes. What portion of the first assessment was for benefits to the land taken for right of way and what portion was for benefits to the balance of the land cannot be determined. The only method by which the lands of Moses Hutchins can be assessed for their just proportion of the first assessment is by proceeding under

the mandate of this court in Hutchins v. Vandalia Drainage District, supra.

The town of Sefton contends that the Levee act, in so far as it authorizes an assessment against a town on account of benefits to the township roads, contravenes sections 9 and 10 of article 9 of the constitution of this State, and relies upon Morgan v. Schusselle, 228 Ill. 106, and the authorities there cited, which hold that the legislature is by those sections of the constitution prohibited from delegating the right of corporate or local taxation to any other than the corporate or local authorities of the district to be taxed, and from creating a debt against a municipal corporation for merely local purposes and subjecting property in such municipality to a tax for its payment without the consent of the tax-payers to be affected. The question here presented was not before the court for consideration in Morgan v. Schusselle, supra. Section 31 of article 4 of the constitution, which was adopted as an amendment to the constitution in 1878, expressly provides that the legislature may vest the corporate authorities of drainage districts with power to construct and maintain levees, drains and ditches by special assessment upon the property benefited thereby. The only limitation upon the property that may be assessed is that it must be property benefited by the improvement. If the highways of a town are benefited by the improvement they fall within the class of property that may be assessed therefor, such assessments, however, being enforceable against the town and not against the specific property benefited. Commissioners of Highways v. Drainage Comrs. 127 Ill. 581.

After the original assessment of benefits had been made the commissioners of the drainage district entered into contracts with plaintiff in error railroad companies, whereby, in consideration of the payment of certain sums of money paid by the railroad companies to the drainage district and the release by the Vandalia Railroad Company of a right

of way over its lands for levee purposes, the commissioners agreed to release the railroad companies from any further liability to pay to the district any further sums of money or other thing of value on account of any benefits which might accrue to the railroad companies by reason of the construction and completion of the improvements then in process of construction by the district, or on account of any litigation to which the district might be a party, or on account of any compensation for lands taken or damages to lands not taken in the construction of the improvements. A similar contract was made between the commissioners and the town of Sefton. The railroad companies and the town of Sefton contend that these contracts constitute a bar to any further assessments against their property, including annual assessments for repairs. This contention is without merit. Section 55 of the Levee act, upon which said plaintiffs in error rely, only confers authority upon the commissioners of drainage districts to contract with the corporate authorities of a town, or with a railroad company, with reference to the proportion of an assessment about to be made that shall be assessed against such town or railroad company. The commissioners have no more power to relieve railroad companies and towns from future assessments than they have to relieve other land owners from such assessments. The contracts under consideration can therefore be given no other effect than to fix the amount of the first assessment against the plaintiff in error railroad companies and the town of Sefton, and are no bar to an additional assessment or to an annual assessment for repairs against them.

The judgment of the county court will be reversed and the cause remanded to that court for further proceedings in conformity with the views expressed in this opinion.

Reversed and remanded.

WILLIAM C. GODFREY et al. Appellees, vs. THE DIXON POWER AND LIGHTING COMPANY et al. Appellants.

Opinion filed October 28, 1910–Rehearing denied Dec. 7, 1910.

1. RES JUDICATA—when judgment in ejectment is res judicata of ownership of dam. An action of ejectment to recover possession of land upon which a dam is erected directly involves the ownership of the dam as well as the title to the land, and a judgment against the plaintiffs is res judicata, as between the parties, as to the ownership of the dam, even though the title to the dam may have been severed from the title to the land.

2. EVIDENCE-deed without proof of possession is not evidence of title in grantor. A deed purporting to convey land on each side of a river and an undivided half of a dam in the stream is not evidence of title in the grantor, in the absence of any proof that he ever had possession of any of the premises described in the deed.

3. SAME declarations of one in possession of land are not competent to prove title in another. The declarations of a person in possession of land are admissible to show the character of his possession but not to prove title in another person.

APPEAL from the Circuit Court of Lee county; the Hon. OSCAR E. HEARD, Judge, presiding.

E. E. WINGERT, and A. C. BARDWELL, for appellants.

WILLIAM D. BARGE, for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court: The appellees recovered a judgment against appellants for $15,000. An appeal was taken to the Appellate Court, and that court, finding that a freehold was involved, transferred the cause to this court.

The action was for damages occasioned by the destruction of a certain dam across the Rock river and of the water power connected with it. A litigation between these same parties concerning this dam was before us at a former term. (Godfrey v. Dixon Power Co. 228 Ill. 487.)

The opinion in that case states many facts material to this controversy which will be referred to but not repeated here.

A dam was built across the Rock river at the place in question before 1851 and a race was constructed through the Mill block, on the south side of the river. Industries using water power were established on either side of the river and were supplied with power from the dam. Frequent and extensive breaks occurred in the dam and repairs were made from time to time, which were sometimes very expensive. The dam was originally constructed of trees and stones and was repaired with the same materials. In the course of time these rotted and washed out in places and leaks were large and constant. In the spring of 1904 the dam was in bad repair, with many leaks, and a break occurred that year which practically destroyed the power. The evidence indicates that the water practically all went through the break and that there was no power. Many of the mills and other buildings on the south side of the river which received power from the dam were destroyed by fire in 1880. After that time no power was taken or used by the appellees or their predecessor in title, but the dam and water power were possessed, controlled and used only by the appellants and their predecessors in title and all repairs were made by them at their own cost. After the breaking of the dam in 1904 no attempt was made to repair or rebuild the old dam. A new dam was built of cribs filled with stone. The distance of the cribs from the west line. of the old dam was about five feet, and the crest of the new dam was twenty-five or thirty feet west of the crest of the old dam. The abutments at the north and south ends of the old and new dams were practically in the same positions. The crests of the new dam and the old dam were of the same height. The plaintiffs claim to be the owners of an undivided half of the dam and of a large part of the water power created by it.