Hinkley v. Bishop

• Decision Date: 31 January 1908
• Citation: 114 N.W. 676,152 Mich. 256
• Parties: HINKLEY et al. v. BISHOP, County Drain Com'r, et al.
• Court: Michigan Supreme Court

152 Mich. 256

114 N.W. 676

HINKLEY et al.

v.BISHOP, County Drain Com'r, et al.

Supreme Court of Michigan.

Jan. 31, 1908.

Appeal from Circuit Court, Hillsdale County, in Chancery; Guy M. Chester, Judge.

Suit by Nelson W. Hinkley and others against S. Chase Bishop, as county drain commissioner of Hillsdale county, and others. From a decree in favor of defendants, complainants appeal. Reversed as to certain complainants, and affirmed as to the others.

Argued before McALVAY, C. J., and CARPENTER, MONTGOMERY, OSTRANDER, and HOOKER, JJ. Barre, Smith & Chase and B. E. Sheldon, for appellants.

Clayton A. Powell and Spencer D. Bishopp, for appellees.

HOOKER, J.

The complainants in this cause are some of many whose premises have been assessed for benefits in proceedings to lay out and construct what is called the ‘Pleasant Lake Drain,’ in Hillsdale county. The lands assessed are held in severalty, except as a few are held by husband and wife by entireties, and one or two parcels are land of a deceased person, which has not been partitioned. Counsel for complainants stated upon the hearing at circuit that they did not question the validity of the drain, except so far as it should affect the assessments upon complainants' lands, from which, and the further fact that the bill contains no prayer that the drain shall be decreed invalid, we conclude that the object of the bill is, as its prayer indicates, only an injunction restraining any steps to enforce such assessments against the several complainants and their lands. The prayer fails to ask any other relief, except general relief. We must conclude, therefore, that the important question raised is whether these complainants, or some of them, should be relieved from their several assessments. Complainants' claims for relief are made to rest (1) on alleged want of jurisdiction on the part of the commissioner to lay out the drain, and irregularities alleged to have caused a loss of jurisdiction if he acquired it: (2) Want of jurisdiction over the complainants or some of them; (3) fraud in making these assessments. The drain in question starts in the vicinity of Pleasant lake, in the neighborhood of complainants' lands. It extends to and enters Pleasant lake, and is treated as continuing through it to a point practically opposite its entrance (see Comp. Laws, § 4339), where it leaves Pleasant lake and runs a devious course through other lands lying north and east of said lake, to the St. Joseph river. Its effect is to lower Pleasant lake.

Counsel say that the application was insufficient to confer jurisdiction upon the commissioner to establish a drain, and that therefore no valid assessment could be made. The briefs contain an extended discussion of this and other questions relating to the regularity of the proceedings up to and including the final order of determination. We are able to say that the defendant Bishop was acting drain commissioner; that he undertook to lay out this drain; that he took steps pointed out by the statute, and made an order establishing the drain; and that no person owning land traversed by the drain undertook to review the proceedings by certiorari, and no such person complains or asks in this cause relief from the appropriation of the land for the drain. An examination of the drain law shows that persons liable to be assessed for benefits were not considered necessary parties to the proceedings up to this point, and they are not in terms given any right to be heard in, or to appeal from, or review them. They are first brought in by a notice of the letting of the drain after its establishment and the designation of their lands as part of an assessment district. We considered this question in the case of Roberts v. Smith, 115 Mich. 5, 72 N. W. 1091, where we held that such persons had no constitutional right to be heard upon the necessity for the drain. See, also, Borgman v. Detroit, 102 Mich. 261, 60 N. W. 696, where we are not only held that a landowner might waive the questions of necessity and compensation, but that persons assessed for benefits were not prejudiced thereby. See, also, Scotten v. Detroit, 106 Mich. 564, 64 N. W. 579;Crandall v. McElheny, 146 Mich. 191, 109 N. W. 261. We are of the opinion that none of the questions referred to are open to the complainants, unless it be the claim that the proceedings are absolutely null and void for want of a lawful application.

Our understanding of the complainants' position is that no authority exists to establish a drain, except it be based upon a valid application, without which any effort to do so is futile, and the proceeding null and void, and that it necessarily follows that an assessment for benefits having nothing to stand upon is also void. It is said that this application was defective for the reasons (1) that it was not signed by the requisite number of freeholders; (2) that it did not definitely describe the drain. The testimony shows that the application was signed by a sufficient number of persons, if they were freeholders. Some of them owned land by entireties, and it is said that such are not freeholders, and cannot be counted unless both husband and wife signed the petition. We are cited to the case of Auditor General v. Fisher, 84 Mich. 128, 47 N. W. 574. In that case, under an act requiring a petition signed by the owners of certain property, it was held that, when husband and wife held land as joint vendees in a land contract, the signature of the husband alone was insufficient, those of both being necessary to a signing by ‘the owner.’ In this case, however, the signature by a definite number of freeholders is required. Every tenant by entireties has an estate for life, and is therefore a freeholder under our statute (Comp. Laws, § 8787), although he may have a common interest with another. In either case the quality of the estate of each person may be in the nature of a freehold, sufficient to comply with the law requiring the signature of freeholders, but not sufficient to meet a requirement that the owner of certain land shall sign the application. One does not own it, though each has a qualified freehold interest. We think, therefore, that the application was not void for want of signatures. See, also, Godwin v. Board of Education, 38 Mich. 95.

Again counsel seek to exclude certain names upon the claim that at the time they were signed their owners had no deed or land contract of record. The statute does not appear to require the record of a deed to constitute the grantee therein a freeholder. Again, if, as claimed, some of the admitted freeholders signed the application under a misapprehension of its effect, that fact (not appearing on the fact of the paper) could not render it ineffective to confer jurisdiction, although the proceedings might perhaps be attacked for that reason in the way pointed out by statute, if such persons should not choose to waive the point. See Patterson v. Mead, 148 Mich. 659, 112 N. W. 742. We are of the opinion that the application gave a ‘general description of the beginning, the route, and the terminus' of the drain, which is all that the law requires in that particular. Kinnie v. Bare, 68 Mich. 625, 36 N. W. 672, s. c., 80 Mich. 345, 45 N. W. 345;Brady v. Hayward, 114. Mich. 330, 72 N. W. 233. It follows that the application conferred jurisdiction upon the commissioner to act, and we need not therefore decide whether the complainants could maintain their suit under the circumstances of this case, were the petition defective, and we intend no intimation of opinion upon that question.

Jurisdiction having been acquired, however, subsequent defects, so far as they affect the condemnation proceedings alone, do not concern these complainants, who are not parties to them, as already shown. See Roberts v. Smith, supra. The drain must be considered to have been legally established, and complainants interested only in the apportionment of benefits. The law provides that the final order establishing the drain shall designate the lands constituting the assessment district, and contain an apportionment of benefits, and it provides for notice thereof, and of a day when this apportionment will be reviewed. Comp. Laws, §§ 4340, 4324; Cook v. Covert, 71 Mich. 249, 39 N. W. 47. These complainants were entitled to this notice, and without it have the right to question their respective assessments by proper proceedings. Some of them apparently had notice, some of them appeared at the...