Bruce, J.
(after stating the facts as above). We have carefully examined the evidence as to the fifth finding, and are fully satisfied that the obstruction furnished by the bridge is negligible. T. R. Atkinson, the state engineer who made the original survey, and who has since been in charge of the work, testifies that no change has occurred in the channel since 1907; that no excavation will be required under the bi’idge; that he never saw an ice gorge at the bridge; that under the bridge and over the right of way the water is swifter than for a considerable distance either above or below the bridge; that the pilings, in fact, increase and accelerate the flow of water at the bridge and increase its velocity.
These facts are borne out by the testimony of several other witnesses, and all that can be derived from the testimony of the other witnesses is that stated in defendant’s proposed findings Nos. 18, 19, and 21, and which are as follows: “That the Mouse river varies in width from 150 to 200 feet; that it is a shallow stream, varying from about 2 inches to about 3 feet in depth; that it has a mud bottom on which grow, during the summer season, weeds, grass, reeds, and rushes. During the winter season it freezes in many places to the bottom, freezing the earth and weeds and frequently earth in the ice; that when the snow and ice melt in the spring the ice breaks up; the most of it follows the course of the stream, some of it lodges upon the banks where the ice melts, (and no doubt, according to our view of the evidence, but not according to the proposed finding, some of it is impeded by the piles, and tends to temporarily, at least, obstruct the flow of the water). The melting ice leaves more or less debris in the stream and on the banks where the ice melts. The bottom of the stream is of varying elevation. The bottom of the stream across defendant’s right of way is lower and the current is swifter there, and the water has a greater depth, than at any point for more than half a mile above the bridge and for more than a mile below the bridge; that is, there is less deposit [635]*635in the stream across defendant’s right of way than within the distances just stated. The said stream hás a fall of 1.65 feet in the 5 miles above the bridge, and the same fall in the 5 miles below the bridge.
In the spring of 1906 or 1901 when the ice broke np, it lodged against the piling, and backed up for about a quarter of a mile, and remained there for about a week. In a later year the ice lodged against the piling, and backed up for a few yards, and remained there for a day •or two. The last three years it has not blocked against the piling; that no complaint has been made to the railroad company of ice jams; that where bridges supported by piling such as this bridge are in danger from ice jams, they are protected by driving a piling above each row up stream for protection; that it has never been found necessary to drive .such a protecting piling in this stream; that the piling bears no marks of having been jammed by ice; that ice obstructions are readily removable by breaking the cakes of ice, or, in case of an extensive gorge, by dynamiting the same; that one of the chief purposes of the proposed drain, if not its chief purpose, is to remove from the channel of the stream the debris left in the channel of the stream by the ice and from other causes; that the earth under the bridge as it now is could be removed without impairing the strength of the bridge, and without imposing any additional expenses upon the railway company to strengthen its bridge.
One cannot, indeed, read the record in this case without being impressed with the belief that the action at bar is one for the benefit of the contractor, and not of the drainage board or of the counties interested, and that the proceedings were brought not for removing the nuisance of the alleged obstructions to the stream as a drainage conduit, but to allow the dredge and houseboats of the contractor to pass under the same. It is to be remembered, indeed, that the river is not navigable, and that the right of way of the railway company is owned in fee by that company. It is also to be remembered that the railway company is engaged in an important public service and in the carriage of not only intra, but inter, state passengers, freight, and mail. The question, indeed, is an important one. It is extremely necessary to the public that streams shall be crossed by railways, and that the bridges and approaches shall be as thoroughly and permanently constructed as is possible. The right of both the lower and upper riparian owners to the [636]*636unimpeded passage of tlie water, as far as the water is concerned, is of course, conceded, even in unnavigable streams, as well as the right of the public to condemn property for drainage purposes if such condemnation is necessary. Where, however, the natural flow is not to any material extent impeded, and where, as we believe is the fact in this case, a .comparatively small expenditure in the removal of piling could remove the obstruction without requiring the removal of the railroad bridge, and where, indeed, the only purpose of the order seems to be to allow the dredges and machinery which are used in digging or deepening the channel to pass by, — in other words, where the only purpose of the proceeding is to lessen the cost of a portion of the digging and to benefit the contractor, — it seems hardly right to interfere with the property rights of private owners. The case, indeed, is no different than if the railroad bridge had been a municipal bridge, a mill, a farmer’s bridge, or some other similar structure.
It is stipulated, indeed, in this case, that the earth can be removed across the right of way under the bridge for $500 without disturbing the piling. The piles can be removed at a cost of $350. If other piling must be put in, it is stipulated that-this can be done for $350. In other words, the evidence seems to show that the railway company for an expense of $850 could remove the dirt so that the channel would be in conformity with the rest of the drainage, and also remove the piling so that there would be no obstruction to the ice, if obstruction there ever was. It has, however, been ordered to remove the whole superstructure at an additional cost of $800, not in order that the stream may be free from obstruction and that the adjacent country may be drained, but that the particular dredges and flatboats of the contractor may be accommodated. Where, indeed, will be the limit ?
The distinction between a navigable and an unnavigable stream has been long recognized. The adjacent property owner must take into consideration the unnavigability, and the duty of accommodating himself to that unnavigability. He has the right, however, to assume that in the case of an unnavigable stream the rights of the riparian owners are the only ones which he must respect. If, for instance, the railroad bridge was 300 feet above a stream, would it be necessary to remove such bridge merely because some contractor had constructed some modern derrick whose mast projected hundreds of feet into the air?
[637]*637We find,- indeed, no ease in the books where any such high-handed procedure has been tolerated, except those in which the railroad company was assessed for benefits on account of the construction of improvements, and on such assessment was given credit for the injury to its property. Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743.
The case of State ex rel. Fadley v. Henry County, 157 Ind. 96, 60 N. E. 939, is very much in point.
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Bruce, J.
(after stating the facts as above). We have carefully examined the evidence as to the fifth finding, and are fully satisfied that the obstruction furnished by the bridge is negligible. T. R. Atkinson, the state engineer who made the original survey, and who has since been in charge of the work, testifies that no change has occurred in the channel since 1907; that no excavation will be required under the bi’idge; that he never saw an ice gorge at the bridge; that under the bridge and over the right of way the water is swifter than for a considerable distance either above or below the bridge; that the pilings, in fact, increase and accelerate the flow of water at the bridge and increase its velocity.
These facts are borne out by the testimony of several other witnesses, and all that can be derived from the testimony of the other witnesses is that stated in defendant’s proposed findings Nos. 18, 19, and 21, and which are as follows: “That the Mouse river varies in width from 150 to 200 feet; that it is a shallow stream, varying from about 2 inches to about 3 feet in depth; that it has a mud bottom on which grow, during the summer season, weeds, grass, reeds, and rushes. During the winter season it freezes in many places to the bottom, freezing the earth and weeds and frequently earth in the ice; that when the snow and ice melt in the spring the ice breaks up; the most of it follows the course of the stream, some of it lodges upon the banks where the ice melts, (and no doubt, according to our view of the evidence, but not according to the proposed finding, some of it is impeded by the piles, and tends to temporarily, at least, obstruct the flow of the water). The melting ice leaves more or less debris in the stream and on the banks where the ice melts. The bottom of the stream is of varying elevation. The bottom of the stream across defendant’s right of way is lower and the current is swifter there, and the water has a greater depth, than at any point for more than half a mile above the bridge and for more than a mile below the bridge; that is, there is less deposit [635]*635in the stream across defendant’s right of way than within the distances just stated. The said stream hás a fall of 1.65 feet in the 5 miles above the bridge, and the same fall in the 5 miles below the bridge.
In the spring of 1906 or 1901 when the ice broke np, it lodged against the piling, and backed up for about a quarter of a mile, and remained there for about a week. In a later year the ice lodged against the piling, and backed up for a few yards, and remained there for a day •or two. The last three years it has not blocked against the piling; that no complaint has been made to the railroad company of ice jams; that where bridges supported by piling such as this bridge are in danger from ice jams, they are protected by driving a piling above each row up stream for protection; that it has never been found necessary to drive .such a protecting piling in this stream; that the piling bears no marks of having been jammed by ice; that ice obstructions are readily removable by breaking the cakes of ice, or, in case of an extensive gorge, by dynamiting the same; that one of the chief purposes of the proposed drain, if not its chief purpose, is to remove from the channel of the stream the debris left in the channel of the stream by the ice and from other causes; that the earth under the bridge as it now is could be removed without impairing the strength of the bridge, and without imposing any additional expenses upon the railway company to strengthen its bridge.
One cannot, indeed, read the record in this case without being impressed with the belief that the action at bar is one for the benefit of the contractor, and not of the drainage board or of the counties interested, and that the proceedings were brought not for removing the nuisance of the alleged obstructions to the stream as a drainage conduit, but to allow the dredge and houseboats of the contractor to pass under the same. It is to be remembered, indeed, that the river is not navigable, and that the right of way of the railway company is owned in fee by that company. It is also to be remembered that the railway company is engaged in an important public service and in the carriage of not only intra, but inter, state passengers, freight, and mail. The question, indeed, is an important one. It is extremely necessary to the public that streams shall be crossed by railways, and that the bridges and approaches shall be as thoroughly and permanently constructed as is possible. The right of both the lower and upper riparian owners to the [636]*636unimpeded passage of tlie water, as far as the water is concerned, is of course, conceded, even in unnavigable streams, as well as the right of the public to condemn property for drainage purposes if such condemnation is necessary. Where, however, the natural flow is not to any material extent impeded, and where, as we believe is the fact in this case, a .comparatively small expenditure in the removal of piling could remove the obstruction without requiring the removal of the railroad bridge, and where, indeed, the only purpose of the order seems to be to allow the dredges and machinery which are used in digging or deepening the channel to pass by, — in other words, where the only purpose of the proceeding is to lessen the cost of a portion of the digging and to benefit the contractor, — it seems hardly right to interfere with the property rights of private owners. The case, indeed, is no different than if the railroad bridge had been a municipal bridge, a mill, a farmer’s bridge, or some other similar structure.
It is stipulated, indeed, in this case, that the earth can be removed across the right of way under the bridge for $500 without disturbing the piling. The piles can be removed at a cost of $350. If other piling must be put in, it is stipulated that-this can be done for $350. In other words, the evidence seems to show that the railway company for an expense of $850 could remove the dirt so that the channel would be in conformity with the rest of the drainage, and also remove the piling so that there would be no obstruction to the ice, if obstruction there ever was. It has, however, been ordered to remove the whole superstructure at an additional cost of $800, not in order that the stream may be free from obstruction and that the adjacent country may be drained, but that the particular dredges and flatboats of the contractor may be accommodated. Where, indeed, will be the limit ?
The distinction between a navigable and an unnavigable stream has been long recognized. The adjacent property owner must take into consideration the unnavigability, and the duty of accommodating himself to that unnavigability. He has the right, however, to assume that in the case of an unnavigable stream the rights of the riparian owners are the only ones which he must respect. If, for instance, the railroad bridge was 300 feet above a stream, would it be necessary to remove such bridge merely because some contractor had constructed some modern derrick whose mast projected hundreds of feet into the air?
[637]*637We find,- indeed, no ease in the books where any such high-handed procedure has been tolerated, except those in which the railroad company was assessed for benefits on account of the construction of improvements, and on such assessment was given credit for the injury to its property. Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743.
The case of State ex rel. Fadley v. Henry County, 157 Ind. 96, 60 N. E. 939, is very much in point. In it it was held that “mandamus will not lie at the suit of the drainage commissioner against the county commissioners and township trustees to compel them to remove iron bridges over a water course in the county, in order that a contractor .appointed by the commissioners to drain the water course may proceed with his work, though the necessary dredging machines cannot pass under or around the bridges.” “If their removal,” said the court, “became necessary in order to enable the contractor to successfully carry out his contract, it certainly was no more the duty of the board of commissioners or township trustees to incur the expense of their removal than it would have been to cause the removal of trees or other obstructions along the course or route of the proposed drain. Counsel for appellant relies in support of his contention upon the decision of this court in the case of Lake Erie & W. R. Co. v. Cluggish, supra. In that •case the commissioner of drainage, together with the contractor, sought to enjoin the railroad company from interfering with or preventing them from removing a bent supporting a bridge belonging to the railroad company. It was not contended in that appeal that the company should remove the bent and open the bridge at its own expense in order to accommodate the contractor in dredging in or along the stream spanned by the railroad bridge. No question of that character was presented or decided in that cause. The claim of the drainage commissioner and the contractor was that they had the right, in the construction of the drain, to go through the bridge, and whatever damages resulted therefrom to the railroad company must be considered as satisfied by reason of a certain reduction which had been made in the amount of benefits assessed against the company in the proceedings to establish the ditch. The question presented and decided on the facts in that appeal, and the one here involved, are materially different, and consequently that decision lends no support to appellant’s contention. [638]*638The petition does not state a cause of action against appellees, or either of them. Therefore the demurrer of each was properly sustained.”
We have carefully read the case of Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175, and in which case it was held that the railway company could be compelled to pay for the cost of removing and reconstructing its bridge, but could not be compelled to pay for the cost of removing the soil and widening the channel. That case, however, is materially different from the one at bar. It was shown that the bridge would materially interfere with the increased flowage of the stream, and it was held that it was the duty of the railway company crossing a natural water course to' adjust itself to the proper uses of that water course, and that this was a continuing duty. In the case at bar we believe that it has been shown that the removal of the bridge as a whole, and especially of the superstructure, is not necessary to the accommodation of the increased flow-age of the stream, but that such can be accommodated in a much cheaper manner, and, at the most, by the removal of some dirt and piles.
We are ready to concede the propositions that if a railway company constructs its tracks over a highway it must restore the same, and the duty is continuing, and that if a railway crosses an unnavigable stream which serves for the drainage of any given area of land it must accommodate itself to the drainage that may be reasonably anticipated, both present and prospective. It by no means follows, however, from these concessions, that a railroad which crosses an unnavigable stream is held to the same liability as if the stream.were navigable, and that it must accommodate itself to the traffic of barges and dredges. It may not, in short, obstruct the flow of the water and of the drainage area, even though that flow is the result of modem improvements and the draining into the stream of areas which, though belonging to the general district, did not formerly flow readily into the stream, and for the accommodation of which the improvements are made. .This, however, is as far as its duties go, and all that can be required of the company in this case is that it shall remove its obstructions to the flow of the water. It is not its duty to make the stream navigable. It is perfectly clear to us, though, that the removal of some of the piling may be necessary, and this work the defendant seems to be ready to do. [639]*639The removal of the superstructure, however, is not necessary to the free flow of the waters of the river nor to the efficiency of the drainage project.
It is really difficult to see how this small overflowage of upper lands, if overflowage there was, would entitle the drainage commissioners to proceed against the defendants in the present proceeding. It is true that the obstructing the flow of a running stream, whereby land of other riparian owners is injured, is the creation of a nuisance, which may be abated by proper proceedings and by the interested parties; but the proceedings in the case at bar are not of this nature nor are the plaintiff's the proper parties to bring them. The commissioners, in short, are not public health officers or agents of the riparian owners, but constitute a particular board which is created for a specific purpose, and whose duties are defined and limited by the statute which creates them.
The judgment of the District Court is reversed, and the cause remanded, with directions to quash the writ.