City of Coldwater v. Tucker

Decision Date06 June 1877
Citation36 Mich. 474
CourtMichigan Supreme Court
PartiesThe City of Coldwater v. Chester S. Tucker

Heard April 11, 1877

Appeal in Chancery from Branch Circuit.

Decree affirmed, with costs.

Loveridge & Barlow and Upson & Thompson, for complainant.

J. H McGowan and Ashley Pond, for defendant.

OPINION

Campbell, J.:

The bill in this case was filed to restrain defendant from obstructing a ditch through his lands adjoining the city of Coldwater, which he is alleged to have attempted in violation of an agreement whereby a right was assured to the city to use it for an outlet of drainage.

It appears that in 1862, or thereabouts, a county ditch was laid out through defendant's lands and lands north of them to a branch of Coldwater river. The city of Coldwater, lying immediately south of Tucker, had by drainage, partly natural and partly artificial, turned the surface water of a considerable tract into the county ditch. A lawsuit having grown out of this action, a compromise was effected; and on the 9th of March, 1867, an agreement in writing was made, which, among other things, provided that Tucker would allow the ditch across his premises to be enlarged so as to carry off the water from the city ditch, upon condition that the city should enlarge and straighten his ditch and the continuation of it northerly, so as to provide for carrying off all water without overflowing or saturating his land. The city was to keep the ditch in repair and keep up a good bridge across it on his premises, and the cross-ditches were not to be injured or obstructed. All damages were to be arbitrated.

The active work to be done was all to be done by the city, as well in maintaining and repairing as in enlarging the ditch. The city could at any time terminate its obligations by shutting off the flow from its own territory.

It is not denied that Tucker has obstructed the flow of the water. His defense is: First, That the city is in default; and second, that it had no authority to make the contract and cannot, therefore, enforce it or be compelled to carry it out.

The charter of the city,--which was granted in 1861,--contains no express authority to execute drainage works beyond the city limits. It does contain general authority over drainage. It is not insisted that any right would have existed to turn the drainage in question upon Tucker's land, if there had been no ditch across it, or in such case to dig such a ditch without his consent. The case shows that the ditch existing there was dug as a county ditch after the city was incorporated, and was not designed, and was not adequate, in its original shape, to serve the purpose provided for in the contract.

At the time when the county ditch was dug, there was no statute in force providing for any combined action between the drain commissioners and the city authorities, or authorizing county ditches to extend into cities. In February, 1867, an amendatory statute was passed, giving commissioners authority, with the consent of the corporate council or trustees, to extend ditches into cities and villages and assess the expense as in other cases.--L. 1867, pp. 3, 4. How far this statute operated in leading the parties to a settlement immediately after its passage, we are not informed. But they seem to have preferred arrangements of their own to leaving the matter to be managed by the commissioners.

By this contract the city undertook to do certain work outside of its own limits, where its power to secure the result bargained for depended on its power to make a private contract with outside landowners, and not upon any statutory or chartered authority. The ditch itself was laid out under the supervision of the drain commissioners, and the right to enlarge it without the consent of the landowners, could only be obtained by statutory proceeding under their authority. And whether enlarged or not, the work was not under city jurisdiction. If the contract was valid, the city acted, so far as this work was concerned, in the same right as a private person, contracting to do work on the land of another.

The general doctrine is clear that a municipal corporation cannot usually exercise its powers beyond its own limits. If it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. There are cases where considerations of public policy have induced the legislature to grant such power. The commonest instances are, where a supply of water can only be obtained from a distance. Where the city erects its own works or lays its own pipes for such a purpose, it has usually been found necessary, in order to furnish adequate safeguards for the preservation of the property, to pass special statutes to cover the case. There would be serious difficulties attending the management of expensive public works situated in one town or city, and owned by another, unless expressly provided for. If a city cannot regulate and protect its public works against injuries and interference, they are liable to serious dangers. The noted case of Bailey v. Mayor, etc., of New York, 3 Hill 531, and 2 Denio 433, illustrates some of the complications arising from the necessity of going beyond the limits of a city for water. In the absence of any sufficient legislation to overcome the difficulty, the power to...

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  • Trimont Land Co. v. Truckee Sanitary Dist.
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    • California Court of Appeals
    • 25 Julio 1983
    ...necessary or manifestly desirable. (McBean v. City of Fresno, 112 Cal. 159, 53 Am.St.Rep. 191, 31 L.R.A. 794, 44 P. 358; City of Coldwater v. Tucker, 36 Mich. 474; Cochran v. Village of Park Ridge, 138 Ill. 295, 27 N.E. 939; 4 McQuillin on Municipal Corporations, sec. 1434.) McQuillin, in h......
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    ...necessary or manifestly desirable. McBean v. City of Fresno, 112 Cal. 159, 44 P. 358, 31 L.R.A. 794, 53 Am.St.Rep. 191; City of Coldwater v. Tucker, 36 Mich. 474; Cochran v. Vilage of Park Ridge, 138 Ill. 295, 27 N.E. 939; 4 McQuillin on Municipal Corporations, § 1434.' Ebrite v. Crawford, ......
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