Carr, J.
Plaintiffs have brought this suit against defendant State highway commissioner, seeking injunctive relief and also damages. They alleged in their bill of complaint that they are the owners of certain described real estate in Lenawee county which they acquired in 1934, that at that time the property was drained by tiles from their fields which emptied the surface water into a ditch along the north side of highway US-223, and that the drainage system as then existing was adequate to enable them to use their lands for agricultural purposes. Plaintiffs further averred that in 1942 the State highway department caused the highway in question to be widened and resurfaced, that in connection with the work of construction and maintenance certain tile drains of plaintiffs were disturbed, that the -existing ditch was also changed, and that, in consequence, the drainage facilities became inadequate.
Plaintiffs asserted in their pleading that in the making of the highway improvement referred to the State highway department, either alone or in con[490]*490junction with the Lenawee road commission, caused such changes in the drainage arrangement previously existing as resulted in unreasonable diversion of surface water, causing the same to spread over farm property owned by plaintiffs. Complaint was also made that the road construction work raised the crown of the highway, thereby causing a barrier to. the natural flow of surface water. For the purpose of obtaining relief plaintiffs sought action by the-State highway department, the Lenawee county road commission, and the drain commissioner of Lenaweecounty, to remedy the situation. Their claim in this respect as well as the nature of the relief that they were seeking was suggested by paragraph 11 of their pleading, which read as follows:
“Plaintiffs have attempted, through negotiation and friendly discussion over the several years, to. obtain relief and stand ready, willing, and able.at this date, to do equity in order to restore the'natural and pre-existing drainage or collaborate in a new drainage system which will bring about the desired relief.”
Because of the alleged interference with the drainage system as it existed prior to 1942, plaintiffs claimed that their property had been damaged, that they were entitled to injunctive relief restraining defendant from continuing to permit the alleged diversion of water from the highway surface, and water which would naturally flow through the adjacent ditch had it been left in its previous condition, upon plaintiffs’ property, and that they are entitled to recover damages for the loss of profits that they might have received from 5 acres of their land over a period of 16 years, in the total sum of $6,000, and also special damages amounting to $3,000 for “lost time, aggravation, medical expense, and legal fees [491]*491incident to the attempted correction of the defendant’s wrongdoing.”
To the bill of complaint the attorney general of the State, appearing on behalf of defendant, filed a motion to dismiss, claiming that said bill failed to’ state a canse of action against defendant, that the highway department, in carrying on the work of which plaintiffs complained, was engaged in a governmental function and, in consequence, immune' from suit and liability, and that the court was without jurisdiction to entertain such suit. The claim was also advanced that plaintiffs’ proper remedy for the alleviation of the condition claimed by them is afforded by the statutes of the State relating to the establishment of drains by the county drain commissioner. The motion further asserted that the conditions of which plaintiffs complained had existed for such period of time as to preclude the bringing of suit based thereon, and that neither statute nor common law authorized the granting of injunctive relief of the character sought, or an award of damages against defendant or the State of Michigan, because of the acts of the commissioner while engaged in the construction and maintenance of highways.
After a hearing before the trial court on the motion to dismiss the circuit judge concluded that said motion was well-founded and an order was entered accordingly dismissing plaintiffs’ bill of complaint. From such order plaintiffs have appealed, claiming that the trial judge was in error in holding that he was without jurisdiction to hear and determine the' issues sought to be raised.
It is apparent from the averments in plaintiffs’ pleading that they based their claimed cause of action primarily on what occurred in connection with the improvement of highway US-223 by the State highway department in 1942. We may take-[492]*492notice of the fact that the defendant in the present suit was not commissioner at that time, nor is there anything in the bill of complaint suggesting any affirmative act on his part that has operated to their detriment. It is obvious that the relief sought was predicated in the final analysis on the theory that defendant had permitted the previously created situation to continue, and that it was his duty to take action to restore the drainage conditions with reference to plaintiffs’ property that existed prior to the highway improvement operations in 1942. In other words, a mandatory injunction was sought against him for the purpose of requiring him to establish, or re-establish, drainage facilities of such nature and extent as would permit plaintiffs to make full use of their property. While certain averments of their pleading suggest that they were relying to some extent on the theory that their land had been taken by the State highway department for public use, it is apparent that their claim for relief was actually based on the theory that the property had been damaged by the wrongful acts of the State highway department in years past. The averments as to the damages that they had sustained are inconsistent with any other assumption.
The trial judge in his opinion on the motion to dismiss called attention to the decision of this Court in Manion v. State Highway Commissioner, 303 Mich 1, in which it was held that in operating a ferry across the Straits of Mackinac for the purpose of transporting vehicles, freight, and passengers, the State was performing a governmental function, citing in support of such conclusion Longstreet v. County of Mecosta, 228 Mich 542. The Court held that defendant was not liable, in an action instituted in the court of claims of the State, because of personal injuries sustained by plaintiff in a collision between 2 State ferries. It was declared that the [493]*493State had not waived its right to assert the defense of sovereign immunity from liability, and that there is a distinction between such liability and liability to suit.
In view of the nature of the relief sought by way of mandatory injunction the case of Minarik v. State Highway Commissioner, 336 Mich 209, is in point. There the plaintiffs sought a mandatory injunction against the defendant to require the cleaning out of a ditch and deepening it so as to restore it to the condition existing when dug. It was pointed out as the basis for denying relief that plaintiff was seeking an order equivalent to a writ of mandamus, and that under the statute (CL 1948, § 636.3 [Stat Ann § 27.2230]) the circuit court had no jurisdiction to issue a writ of mandamus against a State officer. The Court (p 213) declared that:
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Carr, J.
Plaintiffs have brought this suit against defendant State highway commissioner, seeking injunctive relief and also damages. They alleged in their bill of complaint that they are the owners of certain described real estate in Lenawee county which they acquired in 1934, that at that time the property was drained by tiles from their fields which emptied the surface water into a ditch along the north side of highway US-223, and that the drainage system as then existing was adequate to enable them to use their lands for agricultural purposes. Plaintiffs further averred that in 1942 the State highway department caused the highway in question to be widened and resurfaced, that in connection with the work of construction and maintenance certain tile drains of plaintiffs were disturbed, that the -existing ditch was also changed, and that, in consequence, the drainage facilities became inadequate.
Plaintiffs asserted in their pleading that in the making of the highway improvement referred to the State highway department, either alone or in con[490]*490junction with the Lenawee road commission, caused such changes in the drainage arrangement previously existing as resulted in unreasonable diversion of surface water, causing the same to spread over farm property owned by plaintiffs. Complaint was also made that the road construction work raised the crown of the highway, thereby causing a barrier to. the natural flow of surface water. For the purpose of obtaining relief plaintiffs sought action by the-State highway department, the Lenawee county road commission, and the drain commissioner of Lenaweecounty, to remedy the situation. Their claim in this respect as well as the nature of the relief that they were seeking was suggested by paragraph 11 of their pleading, which read as follows:
“Plaintiffs have attempted, through negotiation and friendly discussion over the several years, to. obtain relief and stand ready, willing, and able.at this date, to do equity in order to restore the'natural and pre-existing drainage or collaborate in a new drainage system which will bring about the desired relief.”
Because of the alleged interference with the drainage system as it existed prior to 1942, plaintiffs claimed that their property had been damaged, that they were entitled to injunctive relief restraining defendant from continuing to permit the alleged diversion of water from the highway surface, and water which would naturally flow through the adjacent ditch had it been left in its previous condition, upon plaintiffs’ property, and that they are entitled to recover damages for the loss of profits that they might have received from 5 acres of their land over a period of 16 years, in the total sum of $6,000, and also special damages amounting to $3,000 for “lost time, aggravation, medical expense, and legal fees [491]*491incident to the attempted correction of the defendant’s wrongdoing.”
To the bill of complaint the attorney general of the State, appearing on behalf of defendant, filed a motion to dismiss, claiming that said bill failed to’ state a canse of action against defendant, that the highway department, in carrying on the work of which plaintiffs complained, was engaged in a governmental function and, in consequence, immune' from suit and liability, and that the court was without jurisdiction to entertain such suit. The claim was also advanced that plaintiffs’ proper remedy for the alleviation of the condition claimed by them is afforded by the statutes of the State relating to the establishment of drains by the county drain commissioner. The motion further asserted that the conditions of which plaintiffs complained had existed for such period of time as to preclude the bringing of suit based thereon, and that neither statute nor common law authorized the granting of injunctive relief of the character sought, or an award of damages against defendant or the State of Michigan, because of the acts of the commissioner while engaged in the construction and maintenance of highways.
After a hearing before the trial court on the motion to dismiss the circuit judge concluded that said motion was well-founded and an order was entered accordingly dismissing plaintiffs’ bill of complaint. From such order plaintiffs have appealed, claiming that the trial judge was in error in holding that he was without jurisdiction to hear and determine the' issues sought to be raised.
It is apparent from the averments in plaintiffs’ pleading that they based their claimed cause of action primarily on what occurred in connection with the improvement of highway US-223 by the State highway department in 1942. We may take-[492]*492notice of the fact that the defendant in the present suit was not commissioner at that time, nor is there anything in the bill of complaint suggesting any affirmative act on his part that has operated to their detriment. It is obvious that the relief sought was predicated in the final analysis on the theory that defendant had permitted the previously created situation to continue, and that it was his duty to take action to restore the drainage conditions with reference to plaintiffs’ property that existed prior to the highway improvement operations in 1942. In other words, a mandatory injunction was sought against him for the purpose of requiring him to establish, or re-establish, drainage facilities of such nature and extent as would permit plaintiffs to make full use of their property. While certain averments of their pleading suggest that they were relying to some extent on the theory that their land had been taken by the State highway department for public use, it is apparent that their claim for relief was actually based on the theory that the property had been damaged by the wrongful acts of the State highway department in years past. The averments as to the damages that they had sustained are inconsistent with any other assumption.
The trial judge in his opinion on the motion to dismiss called attention to the decision of this Court in Manion v. State Highway Commissioner, 303 Mich 1, in which it was held that in operating a ferry across the Straits of Mackinac for the purpose of transporting vehicles, freight, and passengers, the State was performing a governmental function, citing in support of such conclusion Longstreet v. County of Mecosta, 228 Mich 542. The Court held that defendant was not liable, in an action instituted in the court of claims of the State, because of personal injuries sustained by plaintiff in a collision between 2 State ferries. It was declared that the [493]*493State had not waived its right to assert the defense of sovereign immunity from liability, and that there is a distinction between such liability and liability to suit.
In view of the nature of the relief sought by way of mandatory injunction the case of Minarik v. State Highway Commissioner, 336 Mich 209, is in point. There the plaintiffs sought a mandatory injunction against the defendant to require the cleaning out of a ditch and deepening it so as to restore it to the condition existing when dug. It was pointed out as the basis for denying relief that plaintiff was seeking an order equivalent to a writ of mandamus, and that under the statute (CL 1948, § 636.3 [Stat Ann § 27.2230]) the circuit court had no jurisdiction to issue a writ of mandamus against a State officer. The Court (p 213) declared that:
“No litigant can mandamus a State officer in the circuit court simply by using the term injunction instead of mandamus when it is the latter remedy that he seeks. The circuit judge correctly held that plaintiffs were seeking a mandamus under the guise or misnomer of a mandatory injunction.”
Counsel for appellants cites and relies on Hunt v. State Highway Commissioner, 350 Mich 309. That was a suit in equity to enjoin condemnation proceedings and to obtain specific performance of an agreement for the purchase of property for highway purposes. The trial court granted the relief sought and this Court affirmed. The proofs indicated that a contract had been entered into by the parties, that the defendant was bound thereby, and that the court of equity was empowered to grant the relief sought. No question of tort liability was involved, or of the issuance of a mandatory injunction equivalent to a writ of mandamus. The Hunt Case is not in point in the instant controversy.
[494]*494Counsel for appellants has also called attention to decisions involving suits brought against local authorities, including Sweeney v. Hillsdale County Board of Road Commissioners, 293 Mich 624, and Bennett v. County of Eaton, 340 Mich 330. It was conceded in the Sweeney Case that plaintiff could not recover damages against the defendant county board of road commissioners, resulting from flooding of his lands, because there was no statutory authority rendering said defendants liable in tort for damages caused while acting as agents of a municipality engaged in the performance of a governmental function. Under the facts presented it was held that plaintiff was entitled to injunctive relief. A like conclusion was reached in Bennett v. County of Eaton, supra, where it was held that Eaton county and the board of county road commissioners should be enjoined from unlawfully causing water to flow over plaintiffs’ property to the damage thereof. The proofs indicated that because of the installation of a culvert surface waters were diverted from their natural flow, creating the condition of which the plaintiffs complained. In neither of these cases was the question of jurisdiction of the circuit court involved. The granting of the injunctive relief sought was not precluded by the statutory inhibition invoked In Minarik v. State Highway Commissioner, supra, .and likewise in the present suit, affecting the jurisdiction of circuit courts to issue writs of mandamus to State officers.
It is apparent that the condition of which plaintiffs complained may be remedied by proper proceedings instituted under the drain code of 1956 (PA 1956, No 40, as amended [CLS 1956, § 280.1 ■et seq., as amended (Stat Ann 1960 Rev § 11.1001 ■et seg.)]).. The bill of complaint indicated that attempts had been made to interest the drain commissioner of" Lenawee ' county in plaintiffs’ problem, [495]*495but apparently no action was taken under tbe statute by proper petition to tbe commissioner to bring about the establishment of such drainage facilities as will obviate the condition of which plaintiffs complained. In other words, they were not without remedy except in a court of equity.
The circuit court properly dismissed plaintiffs’ bill of complaint and the order entered is affirmed, but without costs, questions of a public nature being involved.
Dethmers, C. J., and Kelly and Kavanagh, JJ., concurred with Carr, J.