Mathias v. Drain Com'r

• Decision Date: 31 October 1882
• Parties: MATHIAS v. DRAIN COM'R.
• Court: Michigan Supreme Court

13 N.W. 818

49 Mich. 465

MATHIAS v. DRAIN COM'R.

Supreme Court of Michigan

October 31, 1882

Where an application for the laying out of a drain, and a petition to the probate judge for the appointment of commissioners described the line, but failed to state the width, and the bounds of the lands to be taken were first shown in the report of the commissioners, which proposed the taking of three feet in width on each side of the line described in the preceding papers, such proceedings cannot be supported, as the description of the land to be taken is not sufficiently definite.

Certiorari to commissioners.

Alfred Russell, for plaintiff in certiorari.

Turner & Turner, for defendants in certiorari.

COOLEY J.

The defect in these proceedings is that they do not with sufficient certainty define the land to be taken for the purposes of the drain. The application for the laying out of a drain gave a line merely, without indicating the width. The petition to the probate judge for the appointment of commissioners gave a more particular description of the line, but like the application, gave no width, and the bounds of the land to be taken are first given in the report of the commissioners which proposed the taking of three feet in width on each side the line described in the preceding papers. Where land is to be taken from the owner for public purposes, the description should be as definite as is necessary in a deed; and if several successive steps are to be taken, in the course of which the land must be identified and described, the description should be sufficient in every instance, that it may be seen, that the successive steps are not referable to different premises. The importance of this is especially manifest when, as in this case, a negotiation with the owner with a view to an agreement if possible is contemplated as a preliminary step; for if no precise description of land appears till a later stage of the proceedings, it can never be known from the record whether the negotiation was or was not for the land finally described or whether the negotiation would have failed if the owner had been notified what the precise limits were of the land proposed to be taken.

In this case if it was competent to take 6 feet in width under papers which gave a line merely, it would have been equally competent to take 50. But it is plain that a proceeding so wanting in certainly cannot be supported. It will...