H.C. Mounger, for appellant. In reference to the expenses of opening the track and removing obstructions, the drainage district is only to pay what it thinks fit and proper. "An itemized bill of the expenses of the railroad company for opening its track shall be made and presented to the commissioners." The bill here presented is a bill for erecting a new bridge, not opening its track. To pay the expenses of opening the track was left to the discretion of the commissioners. They should pay such part as they saw fit and proper. Under the circumstances the commissioners did not see fit and proper to pay any of the bill presented. They might have paid some of the bill for opening the track, if such bill had been presented, but no such bill is here presented. The commissioners probably reasoned that this was a natural drain across the track, had been so from time immemorial to be taken care of by the railroad company, had been taken care of by the railroad company before the district was organized, and should be now. There is no law compelling the district to pay this bill. This question has not been passed on by our court; that is, there is no decision construing this statute, if in fact it needs any construction. There are numerous decisions from other states bearing on this question, a few of which we wish to call to the attention of the court. See Chicago B. Q. Railroad Company v. Illinois, 200 U.S. 561 , 50 L.Ed. 597; Chicago, Burlington Q. Railway Co. v. Board of Supervisors of Appanoose County, 31 L.R.A. (N.S.) 117 and n.; Chicago E. Railway Co. v. Luddington (Ind.), 91 N.E. 939; Mason City Ft. D.R. Co. v. Wright, 144 Iowa, 10, 121 N.W. 39; Chicago, etc., Railway Co. v. Minneapolis, 115 Minn. 460 , Ann. Cas. 1912d 1029; Wabash v. Jackson (Ind.), 95 N.E. 311. It makes no difference whether the water passed over, has a well-defined channel, is a watercourse, or whether there was any watercourse there at all or not, if the drainage ditch is put through. Nor does the statute say anything about a watercourse. It may be noted that this same statute puts the duty of providing for the expense of bridges over highways on the board of supervisors. It does not put it on the drainage district. So that neither under the common law nor under this statute is the expense of constructing a new bridge for the railroad company placed on the drainage district. The court should have allowed the bill of the drainage district for removing the obstructions which the railroad company had placed in the ditch and over the drain. No bill is presented here by the railroad company for the expense of opening its tracks as the statute provides. The whole bill is for the erection of a new bridge. We do not think that either under the common law or under the statute, the placing of the cost of the new bridge on this little district is contemplated. Reasoning by analogy, the law places the burden upon the railroad to make proper and easy grades upon the highways, and to erect bridges and keep them in order — Hemingway's Code, sections 7903 (6677). The duty to erect and maintain a bridge applies to a highway laid out after the railroad was constructed. The section is within the police power and so construed does not deprive owners of a previously constructed road of property without due process of law nor impair charter rights. Illinois Central Railroad Co. v. Copiah, 81 Miss. 685 , 33 So. 502. The fact that a railroad company had constructed its track and put the same in operation before a highway was laid out does not relieve it of its duty under this section to erect a bridge over the track or grade approaches for the highway. Illinois Central Railroad Co. v. Swalm, 83 Miss. 631 , 36 So. 147. Under sections 7912 (6686), Hemingway's Code, it is the duty of every railroad company to construct and maintain all necessary or proper stock-gaps and cattle-guards where its track passes through enclosed land; and to make and to maintain convenient and suitable crossings over its track for necessary plantation roads. See authorities cited under this section. Burch, Minor McKay, and Chapman, Moody Johnson, for appellee. There seems to be no controversy of fact in the case but merely a question of law. The brief of learned counsel for the appellant confines itself to a discussion of the single proposition that the drainage district has the right to require the railroad company to open up its roadbed for the passage of a dredge boat and to project its ditch across the railroad right of way and that the entire expense incident thereto and resulting therefrom must be borne by the railroad alone. The rule of uncompensated obedience is invoked. Before discussing this proposition of law there are several facts we wish to emphasize. First, there was no natural watercourse here; second, the former opening was ample; third, the drainage district changed this mere depression to an artificial watercourse and brought more water to the point. The meaning of the term "watercourse" is fairly well established. There must be well-defined banks, a channel emptying into some other stream or body of water, a bed, and it must take care of something more than the mere surface drainage in that particular locality. These essentials have been emphasized by the courts many times. Webb v. Carter (Mo.), 98 S.W. 776-7; Hoyt v. Hudson, 27 Wis. 661 ; Hutchison v. Watson, 16 Idaho, 484; Rait v. Furrow, 74 Kans. 101; St. Louis Co. v. Schultz, 226 Ill. 409 ; Quinn v. Railroad, 23 S.D. 126 ; Erwin v. Railroad, 90 N.Y. Sup. 317; Ferris v. Wellborn, 64 Miss. 29 . The first principal case relied upon by the opposition is that of C.B. Q.R. Co. v. Illinois, 200 U.S. 561 , 50 L.Ed. 597. That case is distinguishable from the case at bar in three important particulars: (1) The bridge there in question crossed a recognized watercourse and not, as in the case at bar, a mere depression or slough. That this ground of distinction is important and sound is indicated by a subsequent Illinois case presently to be reviewed. (2) The Illinois statute expressly provided that the expense in question should be borne by the railroad company. In Mississippi, as will be presently shown, no such statute exists. On the contrary, our statute expressly provides for compensation to the railroad company. (3) It was conceded by the railroad company that the drainage project would "not divert or carry waters which by nature or force of gravity would flow or drain into any other natural watercourse in the drainage district or the vicinity thereof." In the case at bar the drainage project brings to the crossing in question a very large amount of water which in a state of nature would go elsewhere. This difference is made the plainer when it is remembered that in a state of nature the water coming to this crossing could be and was taken care of by a three-foot culvert while, under the drainage project, a ditch ten feet deep, twelve feet wide at the bottom and thirty-two feet wide at the top is required. That the right of the drainage district to place the expense of a new bridge on a railroad company, even when the statute expressly provides therefor, is confined to cases where such a change is necessary to take care of water passing there in a state of nature is emphatically stated by the Illinois supreme court in a later case, viz., People v. C. E.I.R. Co., 262 Ill. 501 , L.R.A. 1915B. 492. The case of C.B. Q.R. Co. v. Illinois, 200 U.S. 561 , which is appellant's principal reliance here, was, it should be remembered, an affirmance by the Federal supreme court of the decree of the Illinois state court. The holding of the Federal supreme court was merely, of course, that the decree of the Illinois court conflicted with no provision of the Federal Constitution. A similar question arose in a later case in Illinois and a quite different conclusion was reached on the ground already alluded to — that the drainage ditch in the latter case so changed the original channel as to convert it from a mere stream into a river and reversed the natural flow of the water. The court held in the latter case that the statute which required the railroad company to enlarge its bridge over a stream along which a drainage ditch is located, where the span is not sufficient to accommodate the natural flow of the stream, does not require the enlarging of a bridge span at the expense of the railroad company over a stream to accommodate the flow of a river which is to be diverted into this channel. The court referred to the earlier case of C.B. Q.R. Co. v. Illinois, and pointed out that the petition of the drainage district in that case (which was demurred to) alleged specifically that "by the proposed system of drainage no water other than the water that has its natural drainage in Rob Roy Creek will be carried through the same." People v. C. E.I.R. Co., supra. The cases of C.B. Q.R. Co. v. Board (C.C.A.), 182 Fed. 291; 31 L.R.A. (N.S.) 1117; Mason City v. Wright, 114 Iowa, 10; Chicago, etc., R. Co. v. Minneapolis, 115 Minn. 460 ; Ann. Cas. 1912D; Chicago, etc., R. Co. v. Luddington, 91 N.E. Rep. 939; Wabash v. Jackson (Ind.), 95 N.E. Rep. 311, relied on by appellant may be easily distinguished from the case at bar by an analysis thereof. In none of the cases relied upon by the appellant here was there a statute which, like the Mississippi statute, required the drainage district to pay the damage sustained by the railroad. On the other hand, in all of them (with one exception) there was an express provision to the contrary. As to distinction between ordinary drainage districts on the one hand and sanitary drainage districts and road improvement districts on the other, see People v. C. E.L.R. Co., supra; Hinton v. Mayo Drainage Dist., 120 Miss. 535 ; Witte v. Drainage Dist., 120 Miss. 645 . Not an exercise of police power. In the C. E.I.R. Co. case, supra, the court disposed of the claim that the right of the drainage district to impose expense of this character on the railroad company would be regarded as an exercise of the police power. See, also, Bradbury v. Vandalia Dist., 236 Ill. 48 , 19 L.R.A. (N.S.) 999. The question has twice arisen in Michigan and in each instance the court held that it was a violation of the constitutional rights of the railroad company to compel it to bear the expense incident to the crossing of its track by a drain. Chicago, etc., R. Co. v. Chappel, 124 Mich. 72 ; Peremarquette v. Weilman, 157 Mich. 699 . Argued orally by H.C. Mounger, for appellant, and H.D. Minor, for appellee.

Cook.

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