Conrad v. Smith

• Decision Date: 19 October 1875
• Citation: 32 Mich. 429
• Court: Michigan Supreme Court
• Parties: Miles H. Conrad v. John J. Smith and others. [1]

32 Mich. 429

Miles H. Conrad v. John J. Smith and others. ^[1]

Supreme Court of Michigan

October 19, 1875

Submitted on Briefs, June 17, 1875

Appeal in Chancery from Wayne Circuit.

Decree reversed, and the relief prayed for granted, with costs of both courts to complainant, and cause remanded.

S Larned and F. A. Baker, for complainant.

Henry M. Cheever, for defendants.

Graves Ch. J. Campbell, and Marston, JJ., concurred. Cooley, J concurred.

OPINION

Graves, Ch. J.:

Complainant filed this bill against defendants, who were highway commissioners of Ecorse, in Wayne county, to restrain them from causing a ditch or drain to be dug on the side of the highway upon the front of his land.

The court below heard the case on pleadings and proofs, and dismissed the bill, and the complainant appealed.

An understanding of the case requires a reference to some of the main facts, but a precise idea of the situation is not attainable without a diagram.

Complainant owns an eighty acre lot in Ecorse, fronting on a public highway situated on the line between Ecorse and Monguagon, the lot being on the north side of the highway, and the complainant's title going to the center.

On the southwest part of the lot, and extending across the highway, and down the lands in Monguagon, there is a tract of low, wet land, and which receives the surface water from the surrounding high grounds, and holds more or less water the greater portion of the year. The case calls this the west swale.

On the southeast part of the lot is another and similar swale, which likewise crosses the highway.

Somewhere between fifty and a hundred rods south of the highway, and running nearly parallel with it, opposite complainant's front, as appears from a diagram, is a stream called Monguagon creek, or county ditch, and the last mentioned swale, which is known in the case as the east swale, discharges into it. The west swale bends round to the northeast, and the east swale to the northwest, so that far back on complainant's land they come near together in low water, and at high water the west swale vents a portion into the east swale at this point. In the wet seasons, and at other times of great and sudden rain-falls, the east swale is subject to overflow and to cover parts of complainant's land otherwise dry.

Complainant claims, and the weight of proof is that way, that formerly the west swale had a natural outlet at the southwest on William Otto's land, but that this outlet has latterly become obstructed in consequence of a wagon way made and used across it. The complainant occupies the lot in question. He has a house some distance back from the road, on the east side of the place, and not far from the east swale, and a barn a little farther back and more exposed to the overflow of the swale. The two swales, of which the east one is the lowest, are about forty-six rods apart along the road, and each has a small wood culvert or sluiceway over which the traveled bed of the road passes. Between these swales the land is high and dry.

The defendants being highway commissioners of Ecorse, ordered a ditch or drain to be cut from the west swale to the easterly one, about forty-six rods long. It was required to follow the complainant's side of the road, and to be cut within a few feet of his fence, and it was meant that it should have sufficient capacity to carry all the water which might accumulate in the west swale, along complainant's side of the road and into the east swale. The dimensions already fixed for this ditch or drain are not very precisely given. But it may be gathered that it was expected to be from two to five feet deep, and of an average width at the top of six feet, and at the bottom of two.

The case shows distinctly that the project did not originate with the defendants, but was prompted in the first place by William Otto, who was much interested in getting the water of the west swale away from his land. He prepared a petition to the defendants, which was presented to them with several names to it he had procured.

The defendants now deny that their final action was based upon the petition, and, on the contrary, insist that in ordering the ditch or drain, they had nothing in view except the improvement of the highway, and that they acted in the matter under the authority of § 1246 C. L. They further allege that the job was regularly offered at public bidding; that complainant became a bidder, and being found the lowest, it was struck down to him; that he made no objection, but afterwards refused to enter into articles, and commenced this suit.

The explanation which complainant gives of his bidding is, that he wished to control and keep the work in abeyance until he could have time to file his bill, and that he resorted to a bidding to guard his rights and secure this very short delay.

The main ground of complainant's case is, that the defendants as highway commissioners, in assuming to order the ditch in question to be made, exceeded their power and acted without legal right, and that the acts threatened, if done, would involve a repetition of trespasses and irreparable injury.

The authority of highway commissioners must find its limits in the nature of the trust confided to them, and in the kind and extent of duties imposed upon them. This trust and these duties concern public ways, and relate, when such ways are once established, to their continuance, repair and improvement; and the commissioners are entitled to exercise a reasonable discretion, and without judicial interference so long as they proceed regularly, and keep within the sphere allotted to them.

But they may not, under color of power to preserve, repair and improve a highway, go outside and enter upon any work they may think of general utility, and practically usurp the power and right pertaining to another public agency.

Their general powers and duties touching the care of roads and bridges are specified in chapter 23, Comp. L.

They are to have the care and superintendence of highways and bridges, and it is made their duty to give directions for repairing them. They are to regulate roads already laid out, and cause highways and bridges over streams intersecting highways to be kept in repair.-- § 1192, Comp. L. Section 1214 points out the course required to be observed when particular repairs are needed on town-line roads and the highway work is insufficient. And section 1246, which the defendants cite as that under which they assumed to act, directs the course to be pursued where the commissioners decide to use any portion over ten dollars of the moneys accruing to the township on account of non-resident highway taxes, in the repairing or construction of roads or bridges.

Under and subject to these regulations, commissioners may provide for such ordinary highway ditches and culverts as the good of the road shall dictate; but they cannot lawfully depart from this object, which is the beginning and end of their authority, and, under color of ditching to improve a road proceed to cut drains to promote the health of the neighborhood and improve the surrounding lands and increase their value. The power to ditch and drain for road purposes is necessarily very limited, and its exertion is only...