Elba Twp. v. Gratiot Cnty. Drain Comm'r

CourtSupreme Court of Michigan
Citation493 Mich. 265,831 N.W.2d 204
Docket NumberDocket No. 144166.,(Calendar No. 6).
Decision Date09 April 2013

493 Mich. 265
831 N.W.2d 204


Docket No. 144166.
(Calendar No. 6).

Supreme Court of Michigan.

April 9, 2013.

[831 N.W.2d 205]

Smith Bovill, P.C., Saginaw (by David B. Meyer and Elian E.H. Fichtner), for Elba Township, David L. Osborn, Mark Crumbaugh, Cloyd Cordray, and Rita Cordray.

Clark Hill PLC (by James E. Brenner, Detroit and Douglas R. Kelly, Birmingham) and Fahey Schultz Burzych Rhodes PLC, Okemos (by Stacy L. Hissong and Stephen J. Rhodes) for the Gratiot County Drain Commissioner.

The Hubbard Law Firm, P.C., Lansing (by Michael G. Woodworth, Andria M. Ditschman, and N. Banu Colak), for the Michigan Association of County Drain Commissioners.

Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C., Kalamazoo (by John K. Lohrstorfer), for the Michigan Townships Association.


[493 Mich. 268]The issues presented here are (1) whether the lower courts properly exercised equitable jurisdiction with regard to this case and, if so, (2) whether the Drain Code requires 5 or 50 signatures for a drainage-district consolidation petition, and (3) whether the notice given regarding a drainage “board of determination” hearing satisfied the constitutional requirements of due process. We conclude that the lower courts improperly exercised equitable jurisdiction over the signature-requirement question but properly exercised such jurisdiction over the question of notice. The former question is purely statutory and, as such, there were no grounds on which the lower courts could properly exercise equitable jurisdiction. Though the exercise of equitable jurisdiction over the latter question was proper, we conclude that constitutional due process did not entitle plaintiffs to receive notice of the “board of determination” hearing. Accordingly, we reverse the judgment of the

[831 N.W.2d 206]

Court of Appeals and reinstate the trial court's order granting summary disposition for defendant.

[493 Mich. 269]I. DRAIN CODE

The first drain laws were enacted before Michigan became a state. See 2 Territorial Laws, Act of March 30, 1827, § 19, p. 325. Amended frequently during the nineteenth and early twentieth centuries, our drain laws have historically served the public purposes of promoting the productive use of the state's land resources and combatting the spread of water- and mosquito-borne diseases, such as cholera and malaria. See 1846 RS, ch. 131, § 1 (stating that before a ditch may be constructed through an individual's land against his will, the township board must inquire whether the “marsh, swamp or other lands [to be drained by the ditch] are a source of disease to the inhabitants, and whether the public health will be promoted by draining the same”); Kaplowitz & Popp, Occupying the same wetland: Michigan's Drain Code and the federal Clean Water Act, 77 U. Det. Mercy L. R. 779, 781–785 (2000). In light of the importance of these functions, those governmental officials charged at various stages of our state's history with overseeing the construction and maintenance of drains have been accorded fairly sweeping powers subject only to limited judicial review. The present Drain Code (the Code), based in large part on these early statutes, retains these characteristics. MCL 280.1 et seq. That the Code is based on these early statutes is likely also one of the reasons why the Code constitutes one of the more arcane portions of Michigan statutory law. See Eyde v. Lansing Twp., 109 Mich.App. 641, 645, 311 N.W.2d 438 (1981) (“[T]he Drain Code of 1956[is] an exceedingly complex statute, the provisions of which apparently are known by few in the profession and understood by far fewer.”) (citations and quotation marks omitted) (emphasis omitted). Thus, before proceeding[493 Mich. 270]to the facts and procedural history of this case, we first discuss applicable portions of the Code.

Under the Code, a “drain” is essentially any watercourse (whether natural or artificial, above or below ground) and the structures or mechanical equipment used to control the flow of that watercourse (excluding certain power-generating dams and the flowage rights used in connection therewith). MCL 280.3. A “drainage district” is the area in which the drain operates. It is “a body corporate with power to contract, to sue and to be sued, and to hold, manage and dispose of real and personal property, in addition to any other powers conferred upon it by law.” MCL 280.5. But the distinction between a drain and a drainage district is not as clear as this definitional scheme might suggest. In fact, the two terms are often used interchangeably. Both the Court of Appeals and litigants at times use the terms interchangeably, and even the Drain Code itself sometimes fails to distinguish between the two concepts. See, e.g., MCL 280.446 (discussing consolidation of a “drain” with a “consolidated drain” in chapter 19 of the Drain Code, entitled “Consolidated Districts”).

When an existing drain needs maintenance or improvement, property owners “whose lands shall be liable to an assessment for benefits of such work” may petition for the work to be done. MCL 280.191. If consolidation of drainage districts is sought, property owners whose lands lie within the districts that would be consolidated may also petition for consolidation. MCL 280.441(1). In either situation, after the petition is submitted, the county drain commissioner “may appoint a board of determination composed of 3 disinterested property owners,” MCL 280.72(1) and MCL 280.441(1), to determine, in the case of proposed maintenance

[831 N.W.2d 207]

or improvement, whether the maintenance or [493 Mich. 271]improvement would be “necessary and conducive to public health, convenience, or welfare,” MCL 280.72(3), or in the case of proposed consolidation, the “necessity of the consolidation,” MCL 280.441(1), and whether the consolidation would likewise be “conducive to public health, convenience, or welfare,” MCL 280.441(3).1

If the “board of determination” (the Board) makes the requisite findings of necessity and conduciveness, then, in the case of a consolidation of drainage districts, an order of consolidation is given to the county drain commissioner, who files the order and gives the new consolidated district a name or number. MCL 280.441(3). In the case of drain maintenance or improvement, once the Board has made its findings, the county drain commissioner then files a final order of determination specifying the precise work to be done. MCL 280.151. The drain commissioner also then apportions the benefit created by the maintenance and improvement among the benefitted properties on a percentage basis.2MCL 280.151. “All apportionments of benefits ... shall be upon the principle of benefits derived.” MCL 280.152. The assessment of taxes to pay for the drain work is then based on these percentage apportionments. MCL 280.151.

Once this apportionment process is complete, each person who owns property within the district to be [493 Mich. 272]assessed is given notice that a public meeting (i.e., a day of review) will be held to review the apportionment of benefits.3MCL 280.154(3) and MCL 280.191. Anyone aggrieved by the apportionment may “appeal therefrom and ... make an application to the probate court ... for the appointment of a board of review....” MCL 280.155. A party aggrieved by any part of “[t]he proceedings in establishing any drain and levying taxes therefor” can also seek certiorari review. 4MCL 280.161. But

[a] writ of certiorari for any error occurring before or in the final order of determination shall be issued within 10 days after a copy of such final order is filed in the office of the drain commissioner ..., and for any error occurring after such final order of determination, within 10 days after the day of review, or if an appeal has been taken within 10 days after the filing of the report of the board of review. [MCL 280.161.]
No other avenue of review is contemplated by the statute.
“If no certiorari be brought within the time herein prescribed,

[831 N.W.2d 208]

the drain shall be deemed to have been legally established, and the taxes therefor legally levied, and the legality of said drain and the taxes therefor shall not thereafter be questioned in any suit at law or equity[.]” Id. But by long-established precedent, discussed more thoroughly later in this opinion, aggrieved parties nevertheless have been permitted to [493 Mich. 273]challenge drain proceedings in equity on the sole bases of fraud or constitutional infirmity.


The No. 181–0 drain is a major, established drain located in Gratiot County. It is fed by dozens of established tributary drains, each of which lies within its own separately established drainage district. Each of these tributary-drain drainage districts in turn lies within the boundaries of the separately established No. 181–0 drain drainage district. This appeal involves a challenge to maintenance and improvements on the No. 181–0 drain and several of its tributaries, along with the consolidation of all the tributary-drain drainage districts and the No. 181–0 drain drainage district into a single new drainage district.

In March 2009, Dennis Kellogg filed with defendant, the Gratiot County Drain Commissioner (the Commissioner), a petition signed by five property owners from North Star Township. The Kellogg petition sought the consolidation, maintenance, or improvement of the “# 181–0 Drain and all established tributary drains located and established in the Townships of Northstar, Washington & Elba, in the County of Gratiot, State of Michigan.” Prior to receiving the Kellogg petition, the Commissioner had received two petitions for consolidation, maintenance, or improvement of two drains that are tributaries to the No. 181–0 drain. A petition for consolidation, maintenance, or improvement of yet another tributary drain to the No. 181–0 drain was received after the Kellogg petition. In response to...

To continue reading

Request your trial
46 cases
  • People v. Bosca
    • United States
    • Court of Appeal of Michigan — District of US
    • March 26, 2015
    ...property without due process of law. U.S. Const.Am. V ; U.S. Const.Am. XIV ; Const. 1963, art. 1, § 17 ; Elba Twp. v. Gratiot Co. Drain Comm'r, 493 Mich. 265, 288, 831 N.W.2d 204 (2013). Michigan's Due Process Clause is construed no more broadly than its federal equivalent. People v. Sierb,......
  • Gillette Commercial Operations N. Am. & Subsidiaries v. Dep't of Treasury, Docket Nos. 325258
    • United States
    • Court of Appeal of Michigan — District of US
    • September 29, 2015
  • Rental Props. Owners Ass'n of Kent Cnty. v. Kent Cnty. Treasurer
    • United States
    • Court of Appeal of Michigan — District of US
    • December 18, 2014
    ...whether a party has been afforded due process is a question of law subject to review de novo on appeal. Elba Twp. v. Gratiot Co. Drain Comm'r, 493 Mich. 265, 277, 831 N.W.2d 204 (2013) ; In re Moroun, 295 Mich.App. 312, 331, 814 N.W.2d 319 (2012) (opinion by K.F. Kelly, J. ). In addition, t......
  • Bank of Am., NA v. First Am. Title Ins. Co., Docket No. 149599.
    • United States
    • Michigan Supreme Court
    • April 13, 2016
    ...part).11 Bank of America, NA v. First American Title Ins. Co., 497 Mich. 896, 855 N.W.2d 747 (2014).12 Elba Twp. v. Gratiot Co. Drain Comm'r, 493 Mich. 265, 277–278, 831 N.W.2d 204 (2013).13 Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999).14 Id.15 Id.16 Manuel v. Gill, 481 Mich......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT