Swan Creek Tp. v. Brown

• Decision Date: 22 April 1902
• Citation: 130 Mich. 382,90 N.W. 38
• Parties: SWAN CREEK TP. et al. v. BROWN, County Drain Com'r.
• Court: Michigan Supreme Court

90 N.W. 38

130 Mich. 382

SWAN CREEK TP. et al. v. BROWN, County Drain Com'r.

Supreme Court of Michigan

April 22, 1902

Appeal from circuit court, Saginaw county, in chancery; Emmet L Beach, Judge.

Bill by the township of Swan Creek and others against Alonzo M. Brown to enjoin the completion of a drain. From a decree for defendant, plaintiffs appeal. Affrimed.

The purpose of the bill filed in this case is to restrain the completion of a county drain laid out, established, and partly constructed through the townships of complainant Fremont, and Richland, and to restrain the levy and collection of assessments made in complainant township for the construction of said drain. Application was filed with the county drain commissioner June 20, 1899. His opinion that it was necessary was made February 2, 1900, and an order was duly made by him establishing the drain in accordance with the minutes of the survey. Releases of right of way were obtained through the lands of several owners in the township of Swan Creek. June 7, 1900, application was made to the probate court for the appointment of special commissioners. They were duly appointed, time for hearing fixed for June 28th, and citations duly issued, published, and served upon the proper parties. June 28th three special commissioners were appointed. These commissioners appointed the 7th day of July, 1900, 9 o'clock, at a given place, for their meeting. The special commissioners were duly sworn, made the examination, and condemned certain lands, awarding damages therefor. The drain commissioner's final order of determination was made July 10th, wherein said drain is named as 'Marsh Creek Drain No. 2,' and the tracts or parcels of land to be assessed for benefits in the construction of the drain were determined. Notice of letting contracts and review of assessments was duly given and published, fixing the time as July 30th. Personal service and notice of review and of letting contract was made. August 31 1900, the apportionment of benefits was made by the drain commissioner for the townships of Fremont, Richland, and Swan Creek. To Fremont was apportioned 51 per cent., to Richland 15 7/10, and to Swan Creek 33 3/10 per cent. This was subsequently changed by the board of review as follows: To Fremont 54 11/40 per cent., to Richland 17 17/40 per cent and Swan Creek 28 3/10 per cent. Benefits were also duly apportioned by the drain commissioner and the board of review of the township of Swan Creek upon the several pieces of land therein found to be benefited. These proceedings were all completed on July 30th. The computation of the cost of the drain by the commissioner was $12,000. Its share was duly assessed to the township of Swan Creek upon its roll, dated September 5, 1900, at $3,365. Like special assessment rolls were made for the townships of Fremont and Richland. The supervisor of the township of Swan Creek appealed from the apportionment for benefits August 9th, and the decision and report of the board of review was made August 31st. A map of the route of the drain and a profile thereof were duly made, and were produced in evidence. The case was heard upon pleadings and proofs, and the bill dismissed.

Frank E. Emerick (George W. Davis, of counsel), for appellants.

James H. Davitt for appellee.

GRANT J. (after stating the facts).

1. Counsel for the complainants say in their brief that the proceedings are not questioned except in two or three particulars, one of which is the laches of the drain...