Frost v. Leatherman

• Decision Date: 08 October 1884
• Citation: 20 N.W. 705,55 Mich. 33
• Court: Michigan Supreme Court
• Parties: FROST and others v. LEATHERMAN and others.

20 N.W. 705

55 Mich. 33

FROST and others v. LEATHERMAN and others.

Supreme Court of Michigan

October 8, 1884

Appeal from Kent.

Maher &amp Felker, for complainants.

Fletcher & Wanty, for defendants.

SHERWOOD J.

The bill in this case is filed to restrain, the collection of drain taxes, and thereby prevent the clouding the title of the complainants' land. No relief is sought against the defendant Lutz. The tax complained of was assessed as that part. of the expense which the commissioner made chargeable against the township of Gaines for the benefit of the public health and highways of the township. The injunction in the case was, on motion, dissolved by the circuit judge, and the defendant then demurred to the bill of complaint. The demurrer was sustained on the hearing, and complainants appeal.

The complainants, by their bill, ask to be relieved of the taxes assessed against them for the construction of two drains, known as the Hammond and Drakey drains. They were designed to be constructed under the drain law of 1881. The complainants are owners and in the actual possession of taxable property in the township of the value of $89,840 which was in the aggregate assessed for the purpose above stated; and that the sum of $13.32 was assessed upon the several parcels of land of complainants, and being that part assessed against the same for the public purposes aforesaid.

The bill of complaint avers, in regard to the Hammond drain, that the assessment is illegal and void, for the following reasons: "First, because it does not appear that application for the construction of such a drain was made to him in writing by five freeholders residing in the township or townships in which such drain, or the lands to be drained thereby, were situated; second, because the application made to said commissioner, and upon which he assumed to act, does not sufficiently designate or describe the character or dimensions of the proposed drain; third, because said drain commissioner did not proceed as soon as practicable, upon the filing with him of application under which he assumed to act to examine personally the line of the proposed drain; fourth because it does not appear that said drain commissioner was of the opinion that it was necessary and for the good of the public health that the application for said drain should be granted; fifth, because said drain commissioner did not, as a means of determining the necessity and practicability of said proposed drain, cause a survey and measurement of the line of the same to be made by a competent surveyor; sixth, the route of said drain as established by said drain commissioner did not follow the natural water-course mentioned in the application, but deviated therefrom, and thereby caused additional expense to a large amount for the construction of the same; seventh, said drain commissioner did not appoint a time and place of hearing upon the application made to him within the time limited, by the statute therefor; eighth, said drain commissioner did not make application to the probate court for the county of Kent for the appointment of special commissioners within the time limited by the statute therefor; ninth, the application made by said drain commissioner to said probate court did not show that application had been made to said drain commissioner for the construction of said drain by the requisite number of freeholders residing in the proper township or townships; tenth, said application to probate court did not show that said drain commissioner had caused a survey to be made of the line of the proposed drain referred to, or that it described the same according to such survey, or state the time and place of hearing upon the application made to said drain commissioner; eleventh, it does not appear that the special commissioners appointed by the probate court were properly sworn in respect to the performance of their duties as such special commissioners; twelfth, it does not appear that the application for the laying out of said drain, with minutes of the action of the drain commissioner thereon, so far as had, including a copy of the application to the probate court, with the citation annexed, and proof of service thereof, with the minutes of the survey signed by the surveyor, were present at the viewing and hearing had by the special commissioners; thirteenth, it does not appear that said special commissioners ascertained ...