Kinnie v. Bare

• Decision Date: 02 March 1888
• Court: Michigan Supreme Court
• Parties: KINNIE v. BARE, TOWNSHIP DRAIN COMMISSIONER.

36 N.W. 672

68 Mich. 625

KINNIE v. BARE, TOWNSHIP DRAIN COMMISSIONER.

Supreme Court of Michigan

March 2, 1888

Error to circuit court, Eaton county; HOOKER, Judge.

On the 15th of November, 1886, a petition was filed with the defendant, L. M. Bare, as township drain commissioner, for the purpose of constructing a drain across and upon certain land, among others, of plaintiff, John L. Kinnie, in township of Benton, Eaton county. The commissioners ordering the drain, and the right of way not being given by plaintiff, an application was made to the probate court for the appointment of three special drain commissioners to determine the necessity of the drain, of taking private property therefor and the just compensation to be made. The plaintiff opposed such application on account of the defective proceedings which, however, were held good by the probate judge, and commissioners were appointed; whereupon the plaintiff sued out a writ of certiorari to the circuit court, and the proceedings being again held valid, the plaintiff brought the case to this court for review upon a writ of error.

CHAMPLIN J.

Proceedings purporting to be instituted under act No. 227 of the Public Acts of 1885 were taken for the purpose of laying out and establishing a drain in the township of Benton, Eaton county. A petition was presented to the defendant, as drain commissioner of the township, signed by five freeholders of the township requesting him to locate and establish a drain substantially as follows: "Commencing at about 84 rods north of the southeast corner of section twenty-three, in said township number three north, of range number four west; thence north-westerly across said section twenty-three, and north-westerly across the north-east quarter of section twenty-two, and ending on the Thornapple river, about 45 rods north of where the said river crosses the section line between sections sixteen and twenty-two."

It is alleged in behalf of plaintiff that this petition is insufficient to confer jurisdiction upon the drain commissioner to act, for the following reasons: " First, that the description is so definite as to leave it to him to determine the direction it shall take; second, that it describes merely a line, instead of the land required for the construction of the drain; third, that it states neither a starting nor ending point therefor; fourth, that it is wholly void in not stating a description of the drain,-the beginning, the route, and the terminus thereof,-as required by law; fifth, that it does not show the same to have been signed by five resident freeholders of the township of Benton."

Several changes were made in the act of 1885 from the laws previously in force relative to laying out and establishing drains. The present law is a new enactment, and all other laws inconsistent with it are repealed, saving rights and proceedings commenced thereunder. Act 227 does not require that the petitioners shall be residents of the township; it is sufficient if they are freeholders thereof. The present law also contemplates that the course of the drain may be described by its center line. Chapter 2, � 8; c. 3, � 3. The width of the drain, and land in addition upon which to deposit the excavation, is described on each side of this center line. Such description, under the law, is sufficiently certain. It is contemplated by the provisions of act No. 227 nor is it longer necessary, that the petition for the drain should contain an accurate description of the termini and route of the proposed drain. It could not be well done without the petitioners first went to the expense of a survey, in order to determine the feasibility of the route. This the law does not require. What it contemplates is that the termini and route shall be approximately described for the information of the drain commissioner; and it is left for him to ascertain and determine the practical route and termini. To accomplish this, he is authorized to employ a surveyor, and it is made his duty to cause an accurate survey to be made, which shall embrace the termini, route, width, length, and depth thereof; and it is expressly provided that "in locating such drain the commissioner shall not be limited or confined to the precise starting point, route, or terminus set forth in the application." Chapter 3, � 3. After receiving the petition, his first step is to proceed as soon as practicable, and personally examine the route of the proposed drain, and to determine whether it is necessary and conducive to the public health that the application should be granted; and if it is, then he shall cause the survey to be made, and if he finds from such survey the drain to be practicable, he shall then make his order of determination, in writing, in accordance therewith. His next step is to procure a release of the right of way, and of damages from all those who are willing voluntarily to give it. Up to this point the proceedings are ex parte by the drain commissioner, and without notice to parties interested. If any owner over whose lands the route of such drain is laid refuses or neglects for 20 days to release the right of way then the law provides for the commencement of adverse proceedings to condemn the land for such right of way. Such proceedings can be authorized by the legislature only under the police power of the state. Drain laws which take from the citizen his private property against his will, can be upheld solely upon the ground that such drains are necessary for the public health. They proceed upon the basis that low, wet, and marshy lands generate malaria, causing sickness and danger to the health and life of the people; that when they are of such character as to injure the health of the community, they become and are public nuisances, which ought to be abated, and the legislature have the right, under the police power inherent in every government, to protect the people from plague and pestilence, and to preserve the public health. But drainage for the purpose of private advantage, such as improving the quality of the land, or rendering it more productive or fit for cultivation, cannot be justified under the police power. Neither public convenience nor public welfare, independent of considerations of the public health, will justify the legislature in the enactment of laws "for the construction and maintenance of drains, and the assessment of taxes therefor." It is evident that where the public health is not affected by the existence of low, swampy land, the only object to be accomplished by their drainage is the improvement of the land itself. The state is prohibited from engaging in such schemes of internal improvement by article 14, � 9, Const., which provides: "The state shall not be a party to, or interested in, any work of internal improvement; nor engaged in carrying on any such work, except in the expenditure of grants to the state of land or other property." Ryerson v. Otley, 16 Mich. 269; People v. Salem, 20 Mich. 452; Bay City v. State Treasurer, 23 Mich. 499; Thomas v. Port Huron, 27 Mich. 320; Hubbard v. Springwells, 25 Mich. 153; Benjamin v. Improvement Co., 42 Mich. 628, 4 N.W. 483; Anderson v. Hill, 54 Mich. 477, 20 N.W. 549. If private interests are solely involved, no authority exists in the legislature to tax any person, either to compensate the owner for lands taken, or to pay for constructing the drain. People v. Salem, 20 Mich. 452; Anderson v. Hill, 54 Mich. 477, 20 N.W. 549. The constitution has wisely placed a limitation upon the exercise of the police power for the purpose of taking from the owner his property under the exercise of the right of eminent domain. It is there declared that, "when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law." Article 18, � 2. Consequently, when proceedings are instituted to establish a drain, if private property is to be taken therefor, it cannot be done until the commissioners appointed by a court of record, or the jury, if one is demanded, has, under...