[417]*417Otis M. Smith, J.
On application to the Saginaw county drain commissioner in 1956, a number of freeholders in Saginaw township in said county petitioned the drain commissioner to locate and establish a drainage district under PA 1956, No 40. Petitioners appeared to be lot owners in various subdivisions in the area. In due course, the drain commissioner took steps to establish the drainage district, including survey by the engineer,-—an order designating the drainage district was noticed by publication describing the drain. Other necessary steps appear to have been taken according to the statute for establishing a new drainage district. Plaintiffappellee was notified and was represented by counsel in the proceedings. After the final order of determination by the drain commissioner, appellee, Winterstein, filed a bill in equity to enjoin the commissioner from proceeding with the drain assessment and construction of the drain, the latter to have been done by defendant construction company. Appellee claimed that the commissioner had no jurisdiction to establish a new drain because it would be constructed over a substantial portion of a public drain existing since 1899 and still in use. The old drain is known as the Winterstein drain and the proposed new drain would be known as the “Winterstein Drain and Branches.” The old Winterstein drain is of the open-ditch type suitable for draining lands used for farming. Winterstein who uses his lands for farming finds the old drain adequate for its original purpose. The proposed new drainage district which lies adjacent to the city of Saginaw encompasses, among other things, a large suburban development. The development includes 16 subdivisions containing over 1,000 lots and in 1956 had more than 300 resi[418]*418clential homes in the area. The new project proposes a closed, tiled, combination sewer and storm water drain, said to be necessary and suitable for this growing area.
After vigorous and protracted pretrial proceedings, hearings were held in 1959, and the matter decided early in 1960. In the pretrial statement of the court, after various motions and amendments with reference to pleadings, it was stated that the remaining issue to be tried was the legality of having “the proposed drain travel over a former properly established drain.” The trial judge found that the proposed new drain follows a course of the previously established drain; that the established drain was still in use, and had never been vacated or abandoned. He held that the case is controlled by our decision in the Township of Imlay v. Wurzel, 258 Mich 595. In Wurzel, the commissioner had ordered a new drain constructed over the course of an existing drain with extensions at the upper and lower ends of the existing drain, without vacating the existing drain or giving consideration to vested rights therein. It was found by the Court in Wurzel that the proposed new drain would not materially deepen or widen the old drain and would not afford abutting property owners any new benefits. It was also found that the new drain would disturb the old drain, only slightly, and that the whole purpose could be adequately attained by widening, deepening, extending and cleaning out the old drain as provided in the statute. Despite the findings in Wurzel which showed the new drain to be of doubtful need, of no benefit, there is language in Wurzel which suggests a broad interdiction against new drains being established and constructed in or about old drains which have not been formally vacated or abandoned. It is necessary therefore to reassert our interpretation of what the drain law requires. Any language in [419]*419Wurzel which extends beyond this opinion we decline to follow. The opinion in Wurzel reads in part as follows (p 600):
“In White v. Palmer, 233 Mich 32, it was said:
“ ‘Of course, a new drain cannot be located on the line of another drain until that drain has been either vacated or abandoned (Tomlin v. Newcomb, 70 Mich 358, 362), unless the old drain is recognized by the proceedings for the new drain.’ ”
We reaffirm our opinion that a new drain cannot be located on the line of another drain until that drain has either been vacated or abandoned, unless the old drain is recognized by proceedings for the new drain. Obviously, the key question is what constitutes “recognition.” An examination of the older cases does not yield a definitive statement as to what “recognition” means. There is a hint in Wursel (p 601) that 1 element of recognition would be “benefit to abutting proprietors having vested rights in an existing drain.” Other cases seem to indicate that the doing of some act such as cleaning out the old drain is sufficient to constitute recognition. It has been argued in this case by counsel for appellant that the drain commissioner’s order of determination which set forth, among other things, that a portion of the old Winterstein drain is to be tiled was sufficient to constitute recognition. It would seem that a proper definition of recognition would show an apportionment of benefits in a new drain to abutting owners, after consideration of the remaining benefits in the old drain. The assessing process involves computation of benefits reasonably to be anticipated from continued operation of the existing drain insofar as abutting owners to the existing drain are concerned. Of course, this contemplates satisfaction of all other statutory requisites for establishing and constructing a new drain. It is helpful to note that [420]*420legislative sanction lias been given to the principle of recognition in at least a portion of the drain law.
On objection of counsel for appellant, appellee was not permitted to present evidence having to do with apportionment of benefits. In the posture of the case at trial it is understandable why this ruling was made. The pretrial hearing had limited the issue to the jurisdictional question. Jurisdiction was based upon whether or not the old drain had been recognized. The earlier cases had not evolved a clear definition of what constituted recognition. Be that as it may, equity having taken jurisdiction on such a substantial question it must now accord full relief. Appellant argues in his reply brief that appellee waived the right to present evidence on the point of apportionment of benefits. The trial judge refused to accept testimony on this issue, in view of the posture of the case, and suggested that appellee wait later in the trial to see how things would develop. The court said at that time: “That request’ may remain on the record until a later time, when we see how it comes out.” In effect, appellant’s objection to the offer of such testimony constituted [421]*421a ruling against admissibility of the evidence. Appellee was under no duty to resurrect his request at a later point in the trial. This will necessitate remanding the case to the trial court for a determination of whether recognition was given the old Winter-stein drain. The existing decree is set aside. After hearing, a decree will enter in accord with this opinion.
Remanded. No costs, a question of statutory construction being involved.
Carr, C. J., and Dethmers, Kavanagh, and Souris, JJ., concurred with Otis M. Smith, J.
PA 1956, No 40, § 443 (CLS 1956, § 280.443, Stat Ann 1960 Rev § 11.1443) :
“See. 443.
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[417]*417Otis M. Smith, J.
On application to the Saginaw county drain commissioner in 1956, a number of freeholders in Saginaw township in said county petitioned the drain commissioner to locate and establish a drainage district under PA 1956, No 40. Petitioners appeared to be lot owners in various subdivisions in the area. In due course, the drain commissioner took steps to establish the drainage district, including survey by the engineer,-—an order designating the drainage district was noticed by publication describing the drain. Other necessary steps appear to have been taken according to the statute for establishing a new drainage district. Plaintiffappellee was notified and was represented by counsel in the proceedings. After the final order of determination by the drain commissioner, appellee, Winterstein, filed a bill in equity to enjoin the commissioner from proceeding with the drain assessment and construction of the drain, the latter to have been done by defendant construction company. Appellee claimed that the commissioner had no jurisdiction to establish a new drain because it would be constructed over a substantial portion of a public drain existing since 1899 and still in use. The old drain is known as the Winterstein drain and the proposed new drain would be known as the “Winterstein Drain and Branches.” The old Winterstein drain is of the open-ditch type suitable for draining lands used for farming. Winterstein who uses his lands for farming finds the old drain adequate for its original purpose. The proposed new drainage district which lies adjacent to the city of Saginaw encompasses, among other things, a large suburban development. The development includes 16 subdivisions containing over 1,000 lots and in 1956 had more than 300 resi[418]*418clential homes in the area. The new project proposes a closed, tiled, combination sewer and storm water drain, said to be necessary and suitable for this growing area.
After vigorous and protracted pretrial proceedings, hearings were held in 1959, and the matter decided early in 1960. In the pretrial statement of the court, after various motions and amendments with reference to pleadings, it was stated that the remaining issue to be tried was the legality of having “the proposed drain travel over a former properly established drain.” The trial judge found that the proposed new drain follows a course of the previously established drain; that the established drain was still in use, and had never been vacated or abandoned. He held that the case is controlled by our decision in the Township of Imlay v. Wurzel, 258 Mich 595. In Wurzel, the commissioner had ordered a new drain constructed over the course of an existing drain with extensions at the upper and lower ends of the existing drain, without vacating the existing drain or giving consideration to vested rights therein. It was found by the Court in Wurzel that the proposed new drain would not materially deepen or widen the old drain and would not afford abutting property owners any new benefits. It was also found that the new drain would disturb the old drain, only slightly, and that the whole purpose could be adequately attained by widening, deepening, extending and cleaning out the old drain as provided in the statute. Despite the findings in Wurzel which showed the new drain to be of doubtful need, of no benefit, there is language in Wurzel which suggests a broad interdiction against new drains being established and constructed in or about old drains which have not been formally vacated or abandoned. It is necessary therefore to reassert our interpretation of what the drain law requires. Any language in [419]*419Wurzel which extends beyond this opinion we decline to follow. The opinion in Wurzel reads in part as follows (p 600):
“In White v. Palmer, 233 Mich 32, it was said:
“ ‘Of course, a new drain cannot be located on the line of another drain until that drain has been either vacated or abandoned (Tomlin v. Newcomb, 70 Mich 358, 362), unless the old drain is recognized by the proceedings for the new drain.’ ”
We reaffirm our opinion that a new drain cannot be located on the line of another drain until that drain has either been vacated or abandoned, unless the old drain is recognized by proceedings for the new drain. Obviously, the key question is what constitutes “recognition.” An examination of the older cases does not yield a definitive statement as to what “recognition” means. There is a hint in Wursel (p 601) that 1 element of recognition would be “benefit to abutting proprietors having vested rights in an existing drain.” Other cases seem to indicate that the doing of some act such as cleaning out the old drain is sufficient to constitute recognition. It has been argued in this case by counsel for appellant that the drain commissioner’s order of determination which set forth, among other things, that a portion of the old Winterstein drain is to be tiled was sufficient to constitute recognition. It would seem that a proper definition of recognition would show an apportionment of benefits in a new drain to abutting owners, after consideration of the remaining benefits in the old drain. The assessing process involves computation of benefits reasonably to be anticipated from continued operation of the existing drain insofar as abutting owners to the existing drain are concerned. Of course, this contemplates satisfaction of all other statutory requisites for establishing and constructing a new drain. It is helpful to note that [420]*420legislative sanction lias been given to the principle of recognition in at least a portion of the drain law.
On objection of counsel for appellant, appellee was not permitted to present evidence having to do with apportionment of benefits. In the posture of the case at trial it is understandable why this ruling was made. The pretrial hearing had limited the issue to the jurisdictional question. Jurisdiction was based upon whether or not the old drain had been recognized. The earlier cases had not evolved a clear definition of what constituted recognition. Be that as it may, equity having taken jurisdiction on such a substantial question it must now accord full relief. Appellant argues in his reply brief that appellee waived the right to present evidence on the point of apportionment of benefits. The trial judge refused to accept testimony on this issue, in view of the posture of the case, and suggested that appellee wait later in the trial to see how things would develop. The court said at that time: “That request’ may remain on the record until a later time, when we see how it comes out.” In effect, appellant’s objection to the offer of such testimony constituted [421]*421a ruling against admissibility of the evidence. Appellee was under no duty to resurrect his request at a later point in the trial. This will necessitate remanding the case to the trial court for a determination of whether recognition was given the old Winter-stein drain. The existing decree is set aside. After hearing, a decree will enter in accord with this opinion.
Remanded. No costs, a question of statutory construction being involved.
Carr, C. J., and Dethmers, Kavanagh, and Souris, JJ., concurred with Otis M. Smith, J.
PA 1956, No 40, § 443 (CLS 1956, § 280.443, Stat Ann 1960 Rev § 11.1443) :
“See. 443. When in any consolidated district it shall be necessary to construct a new drain on or near the line or any part of the line of an existing, operating drain so as to make the old existing drain in whole or in part unnecessary, recognition and eredit shall be given for such existing drain or part thereof as follows:
“The assessing authorities shall make a determination of the value of benefits which, except for the construction of the new drain, could reasonably have been anticipated from the continued operation of the existing drain or part thereof.
“The property or municipal corporation which paid the assessment for the existing drain or part thereof shall be exempt from any special assessment to pay for the now drain to the extent of the value so determined.
“The assessing authorities, in assessing for benefits and apportionment of costs and expenses for any new drain in a consolidated district which has been laid on or near the line or any part of the line of an existing, operating drain so as to make the existing drain in whole or in part unnecessary, shall give effect to this exemption.”