Chicago & Grand Trunk R. Co. v. Chappell

• Decision Date: 15 May 1900
• Citation: 82 N.W. 800,124 Mich. 72
• Parties: CHICAGO & GRAND TRUNK RY. CO. v. CHAPPELL, Drain Com'r.
• Court: Michigan Supreme Court

82 N.W. 800

124 Mich. 72

CHICAGO & GRAND TRUNK RY. CO. v. CHAPPELL, Drain Com'r.

Supreme Court of Michigan

May 15, 1900

Certiorari to circuit court, Eaton county; Clement Smith, Judge.

Proceedings by C. E. Chappell, drain commissioner of Eaton county, to deepen, widen, and straighten a drain which crosses the right of way of the Chicago & Grand Trunk Railway Company. From an order requiring the company to lower a culvert, it brings certiorari. Reversed.

L. C Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellant.

Le Roy Jones (Fred A. Baker, of counsel), for appellee.

MONTGOMERY C.J.

In 1893 proceedings were instituted to deepen, widen, and straighten the Harris drain, so called. The drain crosses the right of way of the plaintiff in certiorari, and plaintiff was required to lower the iron culvert now extending through its roadbed two feet, at an estimated cost of $111. The sole question presented is whether the company can be required to do this without compensation. The statute under which the order was made is section 4334, Comp. Laws 1897, and reads as follows: 'Whenever it is necessary to run a drain across a right of way or roadbed of any railroad the same proceedings shall be had throughout in all respects as in cases provided in this act for obtaining private lands for the construction of drains, except as hereinafter provided. It shall be the duty of the railroad company when notified by the county drain commissioner so to do, to make and maintain the necessary opening through said roadbed, and to build and maintain a suitable culvert. Notice in writing to make such opening and to construct such culvert, shall be served upon such company by leaving a copy thereof with the ticket of freight agent, or general officer of said railroad company, at least thirty days before such railroad company shall become liable.' We agree with the counsel for the appellee that this statute shows a legislative intent to require the company to make such improvement without compensation. The question is, has the legislature power to require this? The learned counsel for the appellee presents an argument of great force in favor of such power, and cites numerous cases from other states which go far towards sustaining his contention. While some of the cases cited may be distinguishable, all of them are not; and, were we at liberty to consider this question as not concluded by our previous holdings, the authorities cited would certainly be entitled to great weight. We find, however, that legislation entirely analogous has been declared unconstitutional by this court in numerous cases. People v. Lake Shore & M. S. Ry....