Lane v. Burnap

• Decision Date: 21 November 1878
• Citation: 39 Mich. 736
• Court: Michigan Supreme Court
• Parties: Henry Lane v. George W. Burnap, drain commissioner

39 Mich. 736

Henry Lane v. George W. Burnap, drain commissioner

Supreme Court of Michigan

November 21, 1878

Submitted October 31, 1878

Certiorari to drain commissioner.

Proceeding quashed.

J. C Sawyer, John Whitbeck and Millerd & Bean for plaintiff in certiorari.

Moore & Moore for defendant in certiorari.

OPINION

Graves J.

This is a certiorari to review proceedings taken under color of the township drain law, to make a ditch or drain and apportion and raise the expense. The proceedings in question were begun in July, 1877, but the writ of certiorari was not taken out until January, 1878. The respondent's counsel, noticing these and some other dates, objects that there has been unreasonable delay and amounting to laches in commencing this proceeding, and he contends that the writ ought to be dismissed for such reason.

In bringing forward this point the counsel must have overlooked the material fact in the return, that the last statement of the jury summoned by the commissioner was not made until the 21st of December, or nineteen days only before the writ issued. The commissioner must therefore have considered the proceedings as still going on until within a few days of the writ. The objection has no force.

The general rules of law applicable to this class of proceedings have been repeatedly explained and enforced, and it is useless to repeat our previous expositions. A great body of cases will be found collected in Paul v. Detroit, 32 Mich. 108, and several of later date may be easily referred to.

The present record is full of errors, but it would be a waste of time to go through the case and notice each material defect. A reference to one so glaring as to forbid discussion will be sufficient.

The commissioner either had or had not a case before him which he was authorized to entertain and carry forward, and if he had not such a case, that is an end of the whole matter. But if he had, it was one in which an "examination" was necessary, and consequently one in which it was indispensable for him to appoint a time and place for such "examination," and to give the notice thereof required by the statute to all persons interested. He proceeded to appoint the time and place for the "examination," but there is no evidence of lawful notice. The statute governing the subject is very special §§ 2 and 3 of Act 140, Pub. Acts, 1875, p. 166. On coming to the case where an "examination" is required, the provision (§ 2) defines the commissioner's duty in these terms: "he shall at once appoint a time and place for an examination upon such application, and shall give notice thereof, in writing, to all persons interested in such ditch, or drain, or watercourse who reside in such township, which notice shall be served upon each of such persons at least five days before the day appointed as aforesaid, by delivering a copy to such persons, or by leaving a copy at the residence of such persons, with some person of suitable age; and when any person or persons interested in such watercourse, ditch, or drain, reside out of such township, or any minor, minors, insane, or incompetent person or persons are interested in such watercourse, ditch, or drain, the drain commissioner shall publish such notice once a week for three successive weeks, next before such day appointed, in a newspaper of general circulation in the county in which such township lies, or when there is no newspaper in said county, in a newspaper of general circulation in an adjoining county, unless he shall serve written notice as above provided, on all such persons living out of such townships, and on the guardian or...