upon the lands of Monroe Stinchcomb, and of the defendants, comprised the system of drainage of lands owned by these parties until the fall of 1913, and that those drains did not afford sufficient drainage for their said lands, and especially for the lands of defendant Stinchcomb, which contained several basins and low places where water collected and stood at times at considerable depth.

It was in evidence that in the fall of 1913 defendant Stinchcomb, without the knowledge or consent of complainant, constructed a new tile drain, extending from the south line of his long 40 northerly, and west of the center line of said 40, to the above-mentioned culvert in the highway, thus discharging the water from said drain to and upon complainant's low lands. This drain is from 4 to 6 feet in depth, except at its commencement and terminus, where it is 30 inches in depth, and the tile that were used were 8-inch tile, except for a distance of about 60 rods at the south end, where 6-inch tile were used. At the time of the construction of this tile drain, two branch tile drains of 4-inch tile were extended easterly therefrom, both located on the north 20 acres of said long 40. One of said branch drains was about 30 rods south from said highway, and the other one about 50 rods south therefrom. Complainant testified that in February, 1914, defendant Chamblin told him that he had agreed to pay defendant Stinchcomb $60, or the difference between 6 and 8-inch tile, for the privilege of an outlet from said Chamblin's land through said tile drain. In their answers both defendants denied any such offer or arrangement, but defendant Chamblin admits in his testimony that there was such a proposition, and that he so told complainant.

It is the claim of the complainant that the effect of this new tile drain was to bring water from the several parcels of land above mentioned in larger quantities,

and more rapidly than ever before, upon said low land of complainant, without providing any outlet or drainage for such additional water, to his great damage. This is strenuously denied by the defendants, and may be said to be the main issue in the case. The questions presented by the record are mainly upon the facts. The trial court saw and heard the witnesses testify, and was better able to judge of the credibility of the witnesses whose testimony was conflicting, than we are. A decree was entered for complainant in accordance with the prayer of the bill. Both defendants have appealed. They claim a prescriptive right of flowage, and also that by the new drain the defendant Stinchcomb has not in any manner increased the flow of water from his land to and upon the land of complainant. While there is testimony to support this claim, we gather from the record that the effect, if not the purpose, of the construction of the new tile drain was, and only could be, to rid defendants' lands of the surplus waters accumulated thereon, and to cast such waters upon the lands of complainant, and in larger quantities and much more rapidly than before, thus at times inundating complainant's land.

While one has a right to drain and dispose of the surface water upon his land, yet he cannot lawfully concentrate such water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor. It is also wellestablished that a prescriptive right of drainage can only be exercised in the manner and to the extent that it has been used during the prescriptive period, and this rule is applicable here. Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Chapel v. Smith, 80 Mich. 100 (45 N. W. 69); Bruggink v. Thomas, 125 Mich. 9 (83 N. W. 1019); Breen v. Hyde, 130 Mich. 1 (89 N. W. 732); Township of Merritt v. Harp, 131 Mich. 174 (91 N. W. 156); Id., 141 Mich. 233 (104 N. W. 587, 108 N. W.

746); Cranson v. Snyder, 137 Mich. 340 (100 N. W. 674); Smith v. Township of Eaton, 138 Mich. 511 (101 N. W. 661); Fraam v. Covell, 170 Mich. 366 (136 N. W. 505).

We are of opinion that the equities of the case are with complainant, and that his claim is not only sustained by a preponderance of the evidence, but is more in accord with reason and the conceded conditions than is that of the defendants.

The decree of the circuit court is affirmed, with costs to complainant.

BROOKE, C. J., and PERSON, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

SCEBA v. MANISTEE RAILWAY CO.

1. EVIDENCE-STREET RAILWAYS-NEGLIGENCE-INFANTS. In an action for killing plaintiff's daughter, who was hit by defendant's car at a street crossing, and who was shown to be only five years and three months old at the time of the injury, it was error to exclude interrogatories of plaintiff's attorney as to what was the disposition and tractability of the child and what was the difference between the value of her help and the expenses of clothing and other necessaries; also whether her assistance would grow more valuable as she became older.1

2. SAME-VALUE OF SERVICES-MINOR.

Testimony that tended to throw some light upon what the pecuniary loss resulting from an infant's death might be

'On damages in action by parent for death of child, see note in 17 L. R. A. 77.

was admissible, and it has been held that some showing of injury or loss must appear.

3. SAME-PRESUMPTION.

The law presumes, in the case of an infant's death by wrongful act, that there has been a loss for which compensation may be given under the statute, and the loss may be estimated from the facts proved, in connection with the knowledge and experience possessed by all persons, in relation to matters of common observation.

And it was improper to rule out testimony of the child's teacher as to her disposition and habit of obedience, upon the alleged ground that it related to the school only.1

5. SAME-DAMAGES-VERDICT.

On error to review the denial of a motion for a new trial, the size of a verdict for plaintiff amounting to $71, covering the evidence relating to funeral and burial expenses only, was not so greatly insufficient as to require the court to reverse the case.

Error to Manistee; Withey, J. Submitted October 18, 1915. (Docket No. 146.) Decided December 21, 1915.

Case by Joseph Sceba, as administrator of the estate of Rosalia Sceba, deceased, against the Manistee Railway Company for the wrongful death of plaintiff's intestate. Judgment for plaintiff for an inadequate amount. Plaintiff brings error. Reversed.

Thomas Smurthwaite, for appellant.

Peter T. Glassmire (Max E. Neal, of counsel), for appellee.

STONE, J. This is an action on the case brought under the "Death Act" (3 Comp. Laws, §§ 10427, 10428), to recover damages by reason of an injury resulting in the death of plaintiff's decedent. At the time of the

'As to evidence of habits or character of person killed as affecting damages, see note in 1 L. R. A. (N. S.) 198.

injury complained of, the defendant owned and operated an electric street railway line in and through the city of Manistee. It was laid upon Eighth street, two blocks, from Kosciusko street on the west, to Vine street on the east. Englemann street crosses Eighth street one block east of Kosciusko street, in a wellsettled neighborhood, where there were many people, including children, passing. The closed cars used by the defendant at that time were known as "pay as you enter” cars, and one man performed the duties of conductor and motorman. The plaintiff, with his wife and two children-a boy about seven years old, and Rosalia, a girl aged five years and three months-resided on the east side of Englemann street about 200 feet north of Eighth street. He owned a house and lot there. Plaintiff was a laboring man, and had steady employment only a part of the time. In September, 1914, the child Rosalia began going to school, attending the kindergarten department, located south and west of the home. The usual course traveled by the little girl in going to school was south from the home, crossing the street railway track to the south side of Eighth street, then west one block to Kosciusko street, and thence south one block to the schoolhouse. She usually returned by the same route. Her school hours consisted of the forenoon session only. On October 28, 1914, Rosalia went to school at the usual hour and remained during the session, was released at about 11 o'clock, and started for home. One witness, who saw her, said she was "tripping" along on the sidewalk on the south side of Eighth street. She arrived at the corner of Englemann and Eighth streets, and took a diagonal course from the southwest to the northeast corner. While crossing the track she was overtaken and struck by one of the defendant's east-bound cars, described as above, and was instantly killed. It was a bright, clear day, and there were no objects to prevent