Drain Com'r v. Palmer

• Decision Date: 25 June 1884
• Citation: Drain Com'r v. Palmer, 54 Mich. 270, 20 N.W. 49 (Mich. 1884)
• Parties: DRAIN COM'R v. PALMER and others.
• Court: Michigan Supreme Court

20 N.W. 49

54 Mich. 270

DRAIN COM'R v. PALMER and others.

Supreme Court of Michigan

June 25, 1884

Error to Lapeer.

Geer &amp Williams, for plaintiff.

Moore &amp Bentley, for defendants.

CHAMPLIN J.

The plaintiff was drain commissioner of the township of Imlay, in Lapeer county. The defendants are residents of Imlay. Sometime in May, 1882, the defendants applied in writing to the plaintiff, as drain commissioner, to construct a water-course or open ditch in the township of Imlay, as follows: "Commencing at the crossing of Belle river by the Chicago & Grand Trunk Railway; thence south-easterly along the course of said Belle river to the crossing of said river by the Ross road bridge, on section 33." On receiving this application the plaintiff proceeded to examine personally the line of the proposed drain, and decided that it was necessary for the good of the public health that the application should be granted. He afterwards caused a survey to be made, and established a ditch, which in some places was from 40 to 70 rods from the course of Belle river, and in one place providing for a cut-off 149 rods long and 16 feet wide. He was unable to get releases of the right of way from all the parties through whose land the drain was laid, and thereupon applied to the judge of probate for the appointment of three special commissioners, who reported that they did declare it to be their opinion that it was necessary and practicable, and for the good of the public health, and the drain should be constructed as prayed for in the application therefor, and they inserted the application made by the defendants verbatim.

The petition for the appointment of these commissioners described the drain as surveyed and laid by the commissioner, which, as before stated, differed in some parts materially from that applied for, and respecting which they made no finding or report. Thereupon the plaintiff, on the thirteenth day of November, 1882, made the following order, viz.:

"Whereas heretofore, to-wit, on the nineteenth day of May, A.D.1882, application was made to me, the undersigned, township drain commissioner in and for the township of Imlay, in the county of Lapeer, to construct a drain in said township as hereinafter set forth: Whereupon, three special commissioners were appointed, by and in the manner above specified, and, upon the findings of said special commissioners, it was declared and determined that there was not sufficient cause for making such application, and that such drain was not necessary and practicable, and that the said applicants, to-wit, Byron Deneen, George Leniker, George R. Manwaring, F.M. Dodge, C.A. Mosher, N.B. Eldredge, E.E. Palmer, Jacob Cohn, R. Murphy, Charles Palmer, and Stephen R. Dodge, are jointly and severally required to pay to me

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