Milton v. Wacker
| Decision Date | 31 January 1879 |
| Citation | 40 Mich. 229 |
| Court | Michigan Supreme Court |
| Parties | Joseph Milton v. Frederick H. Wacker, Drain Commissioner, and Peter F. H. Schars, Clerk of the Township of Chesterfield |
Submitted January 15, 1879
Certiorari. Submitted January 15. Decided January 31. The facts are in the opinion.
Proceedings quashed.
Crocker & Hutchins for plaintiff in certiorari.
George M. Crocker for defendants in certiorari.
This certiorari is brought to review proceedings by a township drain commissioner. The record charges many errors, but only one ground of complaint will be specially noticed. Several objections are unimportant, and one defect which plaintiff's counsel suggested when the case was submitted is not alleged as error.
The drain commissioner was unable to obtain conveyances of the land necessary and releases of damages and was hence compelled to call a jury or obtain the appointment of commissioners. He elected to apply for commissioners, and June 17, 1878, the judge of probate appointed them. They were sworn, and on the 3d of July, 1878, they made their written determination, which, with other proceedings, was filed with the township clerk July 19.
Throughout these proceedings the ditch is described only as a line. In no place is there any description of its "width and average depth."
So far as appears the special commissioners had no knowledge of the required dimensions and no means of judging how much land would be needed at any point, or the amount of expense to be incurred, or of the benefit or injury to individuals so far as it would depend upon the size and depth of the ditch generally or in localities or of the necessity for the "good of the public health," in so far as that might turn upon the extent and features of the designed improvement. In Kroop v. Forman, 31 Mich. 144, this subject was referred to. But defendants' counsel observes that the amendment of 1875 has made that case inapplicable and has removed all necessity for specifications in the proceedings or in the record or for any thing more definite than the description of a line. We cannot concur in this view. The function of these commissioners is one of high import. It is expressly provided for by the constitution. They are required to determine upon oath the necessity for taking private property for the public good, and to ascertain and fix the amount of damage or compensation, and this implies that they shall know what the conditions are on which their judgments must be exercised.
The result may depend wholly upon the dimensions, and it cannot be intended the Legislature designed to leave commissioners without the means to enable them to discharge their high duty...
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Null v. Zierle
...too indefinite and uncertain to form the basis of any action by the commissioner. Kroop v. Forman, 31 Mich. 144;Milton v. Drain Com'rs, 40 Mich. 229. There are other grave errors disclosed in the record, but as the commissioner obtained no jurisdiction to establish the drain in question, it......
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Nugent v. Erb
...no such description of the property to be taken as required. The case is governed by Kroop v. Forman, 31 Mich. 144;Milton v. Commissioner, 40 Mich. 229. As the proceedings are shown to be defective in this respect, we need not pass upon the other point. The proceedings being so defective th......