Gillett v. McLaughlin
| Decision Date | 20 April 1888 |
| Citation | 69 Mich. 547,37 N.W. 551 |
| Court | Michigan Supreme Court |
| Parties | GILLETT v. MCLAUGHLIN, DRAIN COMMISSIONER, ET AL. |
Appeal from circuit court, St. Joseph county, in chancery; RUSSEL R PEALER, Judge.
The complainant, Daniel Gillett, brought an action against William McLaughlin, drain commissioner, et al., to set aside proceedings to establish a drain. Judgment for defendants. Complainant appeals.
J I. Stanton, (H. H. Riley, of counsel,) for appellant.
A M. Graham, for respondents.
This is a bill filed by the complainant against the county drain commissioner, for the purpose of setting aside proceedings taken by the commissioner and township treasurer in laying out and establishing a ditch known as the "Gillett Drain," in the townships of Burr Oak and Fawn River, in said county, and to remove the cloud upon the title to complainant's land created by the tax levied for the consttruction of the drain. The bill alleges various reasons why the proceedings should be set aside, and which complainant claims all go to the jurisdiction of the commissioner, all of which, and some others, are relied upon. Counsel in this court claims: (1) That the application for the drain fails to state any public necessity therefor, or that it will be of benefit to public health; that the drain was simply a private concern, and of no public interest. (2) That the petition does not sufficiently describe the place for the location of the drain. It describes it as follows (3) That the petition is not signed by five resident freeholders. [These three are the objections to the petition in the case.] (4) That neither the final order of determination of the commissioner, nor the notice of letting of contracts, contains a description of the width or the depth or the proposed drain. (5) There was a second letting of contracts for the construction of the drain, and no notice was published or posted of such second letting, as required by statute. (6) It is claimed by the appellant that on the 14th day of June, 1886, Edward Troyer, one of the parties interested, took an appeal to the township board from the assessment made by the commissioner to have it reviewed; that the meeting of the board was called for the 26th of June, but that the meeting was held the 25th; and the township board of Fawn River proceeded to review the assessments made, and changed the per cent. of the benefits apportioned to that town from 20 per cent. to 5 per cent., and placed the 15 per cent. upon the lands belonging to the complainant; and that such action of the board was illegal, and unjust to complainant; and the complainant further claims that the statute authorizing such appeal is unconstitutional. (7) That the tax could not be legally assessed, and entered upon the assessment roll, until after proceedings of the drain commissioner had been filed with the county clerk, and that this was never done. These are the several positions taken either in the bill, or by the complainant's counsel upon the argument. The defendants both appeared, and made answer to the bill, and say that the petition was sufficient in all essential particulars to give the commissioner jurisdiction to act, and that his action was regular and according to the statute, and deny all illegal acts or omissions charged in the bill on the part of the commissioner. They admit the taking of the appeal by Mr. Troyer, and aver that it was heard on the day and place appointed by the board, and that the review of the assessment was in all respects according to the statute, and that the determination of the board is in accordance with justice. They further deny that the complainant was in any way injured by the action of the board. They further claim that the complainant is not entitled...
To continue reading
Request your trial