Barker v. Vernon Tp.

• Decision Date: 04 November 1886
• Citation: 30 N.W. 175,63 Mich. 516
• Court: Michigan Supreme Court
• Parties: BARKER and others v. VERNON TP. and others.

30 N.W. 175

63 Mich. 516

BARKER and others v. VERNON TP. and others.

Supreme Court of Michigan

November 4, 1886

Appeal from Shiawassee. In chancery.

Mathew Bush, Jr., (G.R. Lyon, of counsel,) for complainants and appellants.

CAMPBELL C.J.

Complainants as severally and not jointly aggrieved, filed their bill in the circuit court for the county of Shiawassee, to set aside clouds on their titles alleged to have been created by the return of unpaid assessments on their lands for the expense of clearing out a township drain. The court below dismissed the bill, which had been taken as confessed, chiefly for the reason that the money had not been paid into court, and complainants appeal. When the bill was filed, all the action of the drain commissioner had come to an end, and the taxes had been returned to the county treasurer, and advertised with the other ordinary taxes. The township, as a corporation, the drain commissioner, (who is not the one that did the work,) and the county treasurer, are all joined as defendants.

In order to determine the position of the controversy, and of the parties, some attention should be paid to the peculiar state of the facts. The commissioner's proceeding was not to ascertain the necessity, and provide for the construction of a drain involving the appropriation of lands and other extraordinary action. The drain was already in existence, and only needed clearing out. The propriety of having an existing drain cleared out does not necessarily need to be determined by commissioners or juries, unless involving more than cleansing. While the statute provided that the rules which applied to making drains should apply to some cases of improving them, it is only where there is a "proceeding affecting the rights of persons or property." How.St. �� 1719, 1732. Just how far the proceedings in the course of opening and cleansing drains must correspond we need not consider. Section 1732 provides that, where no assessment of benefits has been made, the commissioner shall make the assessment.

It is evident that, where a drain has once been legally made, there is at least a presumption that, if necessary at all, it should be kept in reasonable order; and that usually the points in which contributing parties are interested are on the amount of entire cost, and the ratio of assessment among the contributors. All are interested in having the cost moderate. Each one is separately interested in reducing his own burdens, and having as much as possible of the general burden put upon the others. Parties who ask aid from equity in such a case must show some injustice threatened or done them in the method or extent of charging them. The case is somewhat different from that of general taxation or assessment, spread upon a uniform apportionment, which may be in some cases a clear usurpation, and against which parties cannot join in complaining, unless for some grievance underlying the whole proceeding, while as to that they sometimes may join. Here there is no averment that the Holly drain was not an established drain, and no averment of fact to show how...