Lanning v. Palmer

• Decision Date: 12 July 1898
• Citation: 76 N.W. 2,117 Mich. 529
• Parties: LANNING ET AL. v. PALMER, COUNTY DRAIN COM'R.
• Court: Michigan Supreme Court

76 N.W. 2

117 Mich. 529

LANNING ET AL. v. PALMER, COUNTY DRAIN COM'R.

Supreme Court of Michigan

July 12, 1898

Error to circuit court, St. Joseph county; George L. Yaple, Judge.

Certiorari on the application of Ezra Lanning and others to Charles A Palmer, drain commissioner of St. Joseph county. Writ dismissed, and petitioners bring error. Affirmed.

Hugh P. Stewart and Burritt Hamilton, for appellants.

George H. Arnold (Alfred Akey, of counsel), for appellee.

LONG J.

Certiorari to review the proceedings of the defendant, as county drain commissioner, to clean out what is known as "Section Sixteen Drain" in St. Joseph county. The cause was heard in the circuit court, and comes into this court by writ of error. The court below dismissed the writ of certiorari. It appears that on March 1, 1897, all the plaintiffs in the writ of certiorari but Falkenstine petitioned the county drain commissioner, stating in the petition that the "said drain needs cleaning out from the north line, south one hundred and seventy rods or more to the half-section line that such cleaning out and deepening is a necessity by reason of agricultural purposes. And your petitioners do hereby make application, and respectfully request, that said section sixteen drain may be cleaned out in accordance with the provisions of Act No. 227 of the Public Acts of 1885, as amended." Such proceedings were thereafter had that contracts were let, the drain cleaned out, and an assessment made for the cost of the drain. While several grounds of error are set out in the affidavit for the writ, we shall notice those only which are discussed in the brief of plaintiffs' counsel. It is claimed that no notice was given, as required by the statute, of the time and place of letting by serving personal notice upon every person whose lands were affected by such assessment. The proceedings were had under the provisions of Act No. 227 Pub. Acts 1885, as amended by Act No. 203, Pub. Acts 1893. Section 1 of chapter 8 of the latter act provides for the cleaning out of established drains upon the application of a majority of the owners of the lands assessed for the original construction; that the assessment for the work in cleaning out the drain may, in the discretion of the commissioner, be upon the same per cent. fixed for the original construction thereof. This same section provides whenever any such drain shall need widening or extending, the same proceedings shall be had throughout in every respect as provided in this act for locating and constructing a drain in the first instance. While the petition suggests the deepening of the drain, yet the petition and the subsequent proceedings show that it was intended to ask only a cleaning out of the drain; and the commissioner returns...