Clay v. Penoyer Creek Improvement Co.

• Decision Date: 06 June 1876
• Citation: 34 Mich. 204
• Court: Michigan Supreme Court
• Parties: David P. Clay v. The Penoyer Creek Improvement Company

34 Mich. 204

David P. Clay v. The Penoyer Creek Improvement Company

Supreme Court of Michigan

June 6, 1876

Heard April 20, 1876

Certiorari to Probate Court of Newaygo County.

Proceedings in the probate court appointing commissioners quashed and held for naught, with costs to plaintiff.

Champlin & Filzgerald, for plaintiff in certiorari.

Hughes O'Brien & Smiley, for defendant in certiorari.

OPINION

Marston, J

Defendant in error is a corporation formed under "An act to authorize the formation of corporations for the purpose of improving the navigation of rivers," approved April 5, 1869, being chapter 85 of the Comp. Laws.

Upon the 10th day January, 1876, a petition was filed on behalf of said corporation in the probate court of Newaygo county, praying the court to appoint three commissioners to ascertain and determine whether it was necessary to the public interests to take certain lands therein described, owned by David P. Clay, for the purpose proposed in said petition, and if so, to ascertain and determine the amount of damages therefor.

The petition set forth the organization of the corporation, and that it was formed for the purpose of improving Pennoyer Creek; that the corporation had obtained the consent in writing of the governor and attorney general to the proposed improvement; that the necessary maps and plans had been submitted to and approved by the board of control of St. Mary's Falls Ship Canal; that in pursuance of their organization they had constructed three dams across said creek, and had at great expense cleared the stream of certain obstructions, also where necessary the bed had been deepened and straightened; that the stream is, and was before such improvements were made, a navigable stream, but that the practical navigation thereof was obstructed, which rendered it necessary to utilize and control the water in a lake at the head or source of the stream; that there were large quantities of pine along and around said stream and lakes which could be most economically got to market in no other way, and that the improvements made and contemplated would benefit the entire stream and the navigation thereof; that the improvements proposed would affect certain therein described lands, the property of said Clay, in that the water in said stream would be raised and backed up, and the use of said stream for water-power purposes be lost to the owner of said lands, which would at times be flooded, and that an easement therein or in a portion thereof was and would be necessary for the public use. The petition also alleged that they had attempted to agree with Clay upon the amount of compensation, but could not. Upon filing this petition, the 7th day of February, 1876, was fixed for the hearing thereof, and notice given by publication. At the time fixed, Clay appeared and filed objections to the jurisdiction of the court, which were overruled. An answer was then filed, a hearing had and commissioners appointed, when the proceedings were removed to this court by certiorari.

An objection was taken on the argument, that the writ of certiorari was improvidently issued, the order of the probate court being merely interlocutory. We do not so consider it. The appointment of the commissioners by the court was one of the essential steps in the case, and was, so far as that court was concerned, final. The commissioners, after being appointed, proceed independent of the court in the performance of their duties, and after they have made the necessary examination and agreed upon a decision, they are to make and sign a report of their doings and file the same with the clerk of the court by which they were appointed, and which, without any action of the court whatever, is final and conclusive upon all persons who shall not, within fifteen days thereafter, make and file with the clerk a motion to set the same aside. The proceedings upon this motion cannot well reach the question of their appointment. We think a party is not bound to wait, although he may do so, until after the commissioners have acted and made a report which has been confirmed, before testing the jurisdiction and power of the court to appoint them, but may do so at once upon the appointment having been made.

A number of interesting and important questions were raised and discussed, but as there are fatal objections to be met with at the outset in this case, and as it would seem that additional legislation will be necessary in order to perfect the statute under which this corporation was organized, and the proposed improvement authorized, we do not consider it proper to discuss all of them at this time, as they will likely be considered and removed should the legislature undertake to remedy the defects pointed out.

The act under which this corporation was formed, and the proceeding in this case taken, seems to contemplate the improvement of navigable rivers, and not the creation of navigable rivers out of creeks or streams which could not in their natural condition be considered "navigable in any sense of the term. The title of the act is to authorize the formation of corporations for the improvement of navigable rivers." The first section authorizes persons to associate for the purpose of improving the navigation of any river in this state. Indeed this question or idea of improvement of navigable rivers runs all through the act. Whether therefore, it applies to streams strictly private, might become important, as the powers granted by such statutes are not usually to be enlarged by intendment. But this is a question we need not pass upon in ...