Commissioner of Highways v. Beebe

• Decision Date: 15 October 1884
• Citation: 20 N.W. 826,55 Mich. 137
• Court: Michigan Supreme Court
• Parties: COMMISSIONER OF HIGHWAYS v. BEEBE.

20 N.W. 826

55 Mich. 137

COMMISSIONER OF HIGHWAYS v. BEEBE.

Supreme Court of Michigan

October 15, 1884

Error to Schoolcraft.

W.F Riggs, for plaintiff.

Geo. K Newcombe, for defendant.

SHERWOOD J.

In the month of August, 1883, the commissioner of highways of the township of Thompson, in the county of Schoolcraft, laid out and established a highway on the quarter line running east and west through section 31, in said township, and as such commissioner, at the instance and request of the defendant and for certain compensation, employed him to make a survey of, locate, and properly designate the said quarter line, it being the center line of the highway, to enable the plaintiff to open and improve the same. The defendant entered upon the business of making the survey, and so negligently and unskillfully performed the work that he failed to ascertain or designate said quarter line by his survey, thus rendering it necessary to make a new survey, and abandon a large amount of road, constructed at large expense on the line designated by the defendant, before his mistake had been ascertained, to the great damage of the plaintiff, and to recover which he brought this action on the case. The defendant interposed a demurrer to the plaintiff's declaration, which was overruled by the circuit judge, and the defendant brings the case into this court, alleging error upon that ruling.

The demurrer was special, and the causes relied on were as follows: "(3) The said declaration, and the cause of action alleged therein, are double and not single; (4) the said action is brought against said defendant as county surveyor, and yet said declaration alleges a cause of action against said defendant individually; (5) the said declaration alleges no sufficient cause of action; (6) it does not appear, in and by said declaration, that the plaintiff was authorized by law to lay out and establish the highway described therein; (7) it does not appear, in and by said declaration, that said plaintiff was authorized by law to let any contract for the construction of said highway."

We do not think the demurrer is well taken. There is no question made but that the plaintiff has the right to maintain the suit. The declaration avers the laying out and establishing the highway in accordance with the statute upon the quarter line; the employment of the defendant to survey, ascertain and designate the line pursuant to the...