Moore v. McIntyre

• Citation: 110 Mich. 237,68 N.W. 130
• Court: Michigan Supreme Court
• Decision Date: 21 July 1896
• Parties: MOORE ET AL. v. MCINTYRE, DRAIN COMMISSIONER, ET AL.

68 N.W. 130

110 Mich. 237

MOORE ET AL. v. MCINTYRE, DRAIN COMMISSIONER, ET AL.

Supreme Court of Michigan

July 21, 1896

Appeal from circuit court, Ingham county; Rollin H. Person, Judge.

Action by William S. Moore and others against George H. McIntyre drain commissioner, and George Dell, township treasurer. Decree for defendants, and complainants appeal. Affirmed.

A. M Cummins, for appellants.

Lawton T. Hemans, for appellees.

MONTGOMERY J.

This bill is filed to set aside certain drain proceedings, and to compel the refunding of a tax paid under protest. The decree of the court below dismissed the bill of complaint, and complainants appeal. The drain in question is an extensive improvement in the interior of Ingham county involving an outlay of some $6,000. The application for the construction of the drain was filed with the drain commissioner October 5, 1891. In November, 1892, a survey of the drain on the line proposed in the application was made. March 18, 1893, the drain commissioner made his first order of determination, and on September 12, 1893, filed with the probate court a petition for the appointment of special commissioners on the drain. A citation was duly served, and one of the complainants appeared in court. A claim is made however, that the citation was informal and insufficient, and did not confer jurisdiction upon the court to proceed. The special commissioners found no damage for the complainants in the taking of the right of way, and no damage was awarded. It appears that every step required by the statute relative to the construction of drains has been taken. The complaint made is not of the absence of proceedings, but of the informality and irregularity of those taken. No steps whatever were taken by complainants to test the legality of the errors of which they now complain until the first year's assessment had been paid, and the drain was well along in the course of its construction. The answer shows that nearly $3,400 of the tax has been paid, and that the ditch has not been constructed for its full length, so that, if its construction were now arrested, more than one-half of those who have paid their tax in these proceedings would derive no benefit therefrom. Section 1740e4, 3 How. Ann. St., provides for a review of the proceedings to lay out a drain by certiorari, and provides that: "If no certiorari shall be brought within the time prescribed, the drain shall be deemed to have been legally established and its legality shall not thereafter be questioned in any suit at law or in equity provided further that when such proceedings are brought the commissioner shall postpone...