Strack v. Miller
| Decision Date | 15 September 1903 |
| Citation | 96 N.W. 452,134 Mich. 311 |
| Court | Michigan Supreme Court |
| Parties | STRACK v. MILLER. |
Appeal from Circuit Court, Monroe County, in Chancery; Harry A Lockwood, Judge.
Suit by William Strack against John B. Miller. From a decree in favor of complainant, defendant appeals. Reversed.
Willis Baldwin, for appellant.
E. R Gilday, for appellee.
The bill was filed in this case to enjoin defendant from laying out and constructing a new drain on complainant's lands on the ground that the petition gave him no jurisdiction to act because the statute (chapter 3, � 1, of the drain laws) as amended in St. 1899 (Pub. Laws 1899, p. 461, No. 272) requires five of the ten freeholders who signed the application to be owners of land liable to an assessment for benefits in the construction of said drain, while only four of the signers were so liable, and because there was no drain or watercourse on the land of complainant, where defendant was seeking to lay one out. Defendant in his answer claims the petition asked him to deepen and widen an existing drain, and was governed by section 4379, Comp. Laws, which requires for the deepening and widening of an existing drain that the petition need be signed by only five freeholders, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, and that four of the signers were so liable. Defendant further claimed in his answer that at the time there existed across the lands of complainant an old drain, laid out and established in 1876, by the town drain commissioner, which was the drain he proposed to deepen and widen. The answer also contained a demurrer to the bill for the following reasons: (1) Because the bill does not state a cause of action. (2) Because the probate court was the forum to ascertain complainant's damages, if any. (3) Because, if complainant suffered damage, the same should be ascertained in the statutory method. (4) Because the commissioner had not made his final order upon the drain, nor in any way signified his intention of entering complainant's premises. The court heard the case upon the merits, and found from the evidence that no drain and no natural watercourse existed across complainant's land on the line described in the petition under which the commissioner was acting, and, as five or more of the petitioners did not own land liable to an assessment for benefits, he was acting without authority, and a decree was granted as asked for by the complainant. From this decree defendant has appealed.
We think the disposition of one question should dispose of the case, and that question is, should the chancery court take jurisdiction under the facts disclosed by the record? All that had been done by the drain commissioner when the bill was filed was to receive a petition asking for the deepening and widening of a drain, after which he examined the proposed improvement, and made...
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Elba Twp. v. Gratiot Cnty. Drain Comm'r
...the level of a constitutional violation allowing the exercise of equitable jurisdiction. The slightly earlier case of Strack v. Miller, 134 Mich. 311, 96 N.W. 452 (1903), is to the same effect. In Strack, the plaintiff sought to enjoin the construction of a new drain on the grounds of insuf......
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Eyde v. Charter Tp. of Lansing, Drainage Bd.
...to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity". Strack v. Miller, 134 Mich. 311, 313, 96 N.W. 452 (1903). The Court has also stated that under the circumstances, certiorari "provides an adequate remedy for any person aggrie......
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Anderson v. Bd. of Rd. Com'rs of Oakland Cnty., 83.
...referred to with approval. In Auditor General v. Bolt, 147 Mich. 283, 111 N. W. 74, 75, this court said, quoting from Strack v. Miller, 134 Mich. 311, 96 N. W. 452: ‘The purpose of the statute undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction o......
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Vill. of Clawson v. Van Wagoner
...apportionment proceedings against it, should promptly have pursued the remedy of certiorari for the matters now claimed, Strack v. Miller, 134 Mich. 311, 96 N. W. 452;Township of Clarence v. Dickinson, 151 Mich. 270, 115 N. W. 57; Auditor General v. Union Lake Land Company, 239 Mich. 437, 2......