Kinnie v. Bare

• Decision Date: 25 April 1890
• Citation: 45 N.W. 345,80 Mich. 345
• Court: Michigan Supreme Court
• Parties: KINNIE v. BARE, Drain Commissioner.

45 N.W. 345

80 Mich. 345

KINNIE v. BARE, Drain Commissioner.

Supreme Court of Michigan

April 25, 1890

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

Huggett & Smith, for appellant.

Shriner & Fox, for appellee.

CAHILL J.

The defendant, who is drain commissioner of the township of Benton, Eaton county, has laid out and established a drain in that township on an application signed by more than five freeholders residing therein. The proceedings for laying out such drain were removed by certiorari to the circuit court for the county of Eaton, and on a hearing before that court the proceedings were affirmed. The case is now brought to this court by writ of error.

The objections to the proceedings, as shown by the affidavit for certiorari are as follows:

"(1) That the primary petition for the construction of said drain does not state that said drain is necessary for the public health or highways, or that the same is a public necessity." This is not required by the statute. Section 1, c. 3, Act 227, Laws 1885; Gillett v McLaughlin, 69 Mich. 547, 37 N.W. 551.

The second and third errors are abandoned.

"(4) That the application to the probate court is not sworn to or verified by affidavit of said commissioner or other person." The statute does not require the application to the probate court to be sworn to. Section 5, c. 3, Act 227 Laws 1885.

"(5) That said application does not give a description of the land traversed by said drain, as required by law. (6) That there is no description of said drain contained in the application to the probate court for the appointment of special commissioners." The application refers to the original determination of the commissioner, which is annexed to the application as Exhibit B, and which contains a description of the land traversed. It also contains a description of the drain. We think this is sufficient, and that the point made by plaintiff, that the application to the probate court, in terms, "nowhere makes the order of determination a part of such application," is not well taken.

"(7) That no petition was ever filed with the drain commissioner for the establishing of the drain mentioned and described in the order of determination of the commissioners." This point is covered by the case of Kinnie v. Bare, which is a review of former proceedings for the laying of this same drain, reported in 68 Mich. 625, 36 N.W. 672. It is no longer necessary that the petition for the drain should contain an accurate description of termini and route for proposed drain. Section 3, c. 3, of the act of 1885, expressly provides that "in locating such drain the commissioner shall not be limited or confined to the precise starting point, route, or termini set forth in the application." In this case the drain, as laid, started on the same line as asked for in the petition, but some rods short of the point asked for.

"(8) That no notice of the hearing of the appointment of special commissioners has ever been given or served upon all parties interested, as required by law." The plaintiff claims that the following persons did not have notice of this hearing: Ellen Louisa Abel, Sarah L. Abel, Sarah Marshall James Shepard, Fredland H. Burns, Sarah J. Potter, John Hartell, and Henry Thrall. Of these persons, it appears that Ellen and Sarah Abel, Sarah Marshall, and James Shepard are interested as mortgagees only; that Fredland H. Burns has a lease hold interest of five years' duration, given in 1886. We do not think these persons were entitled to notice, under this statute. Section 6 provides: "The court shall issue a citation to all persons whose lands are traversed by such drain, or who will be liable to assessments [assessment] for benefits in the construction thereof." Section 7 requires: "Such citations shall be personally served by the commissioner, or some other competent person, upon every person whose lands are traversed by such drain,...