Fox v. Holcomb
| Decision Date | 20 June 1876 |
| Citation | 34 Mich. 298 |
| Court | Michigan Supreme Court |
| Parties | Frederick Fox v. Henry L. Holcomb. [*] |
Heard June 7, 1876
Certiorari to Probate Court of Gratiot County.
Proceedings before the probate court quashed and held for naught, with costs.
Leonard & Scott, for plaintiff in certiorari.
Spaulding & Cranson, for defendant in certiorari.
Defendant in error presented a petition to the probate court of Gratiot county under Act No. 196 of the Session Laws of 1873, p. 486, praying for the appointment of commissioners to ascertain and determine the necessity of taking certain lands therein described for the purposes set forth in the petition. Defendant in error, in setting forth the facts in his petition, followed and complied with the provisions of section three of the act, but did not go beyond or set forth any other facts than as required bye that section. Section five permits all persons whose estates or interests are or may be affected by the proceedings to show cause against the prayer of the petition, and permits them to disprove any of the facts alleged therein. Beyond this however, they cannot go, so that the inquiry upon the hearing is restricted to the facts set forth in the petition. If, therefore, the petitioner is only required to set forth in his petition the facts referred to in section three of the act, some of the most important questions likely to arise in such cases could not be inquired into. The twelfth section provides that no dam shall be erected or raised to the injury of any mill existing either above or below it on the same stream, nor to the injury of any mill site, whether a mill-dam shall have been lawfully built or used thereon or not. If the petition does not negative this fact, the parties interested cannot disprove it, even although there should be a mill site upon the lands sought to be over flowed. Again, the petitioner cannot construct a dam across a navigable stream unless permitted by the board of supervisors of the proper county. He should, therefore, if the stream is a navigable one, set forth in his petition that he had obtained the requisite permission, so that issue could be taken thereon. It is true he may claim that the stream is a private one, that no such authority is necessary, and need not, therefore, be set forth in the petition. This may, however, be a disputed fact, and the petitioner should not be permitted, by omitting all...
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