Truax v. Sterling
| Decision Date | 15 February 1889 |
| Citation | 41 N.W. 885,74 Mich. 160 |
| Court | Michigan Supreme Court |
| Parties | TRUAX ET AL v. STERLING, COMMISSIONER OF HIGHWAYS. |
Petition for mandamus.
George S. Sterling is commissioner of highways of the township of Dorr, Allegan county. Claim is made that Sylvanus Felton, who preceded respondent as such commissioner, laid out a highway a mile in length across section 34 in said township, in April, 1888. The line of such highway passed through the lands of several different persons. Four of these persons through whose lands such highway passed, were awarded by Commissioner Felton certain amounts as damages, while others among whom are the relators, were awarded no damages. These damages not being paid, and the highway not opened, the relators now ask a mandamus to compel the present commissioner to issue orders for the payment of the damages so awarded by Commissioner Felton. An order to show cause was issued by this court, directed to the present commissioner. He answers, giving his reasons for not issuing or tendering such orders, and sets out in full the proceedings had by Mr Felton in laying out and establishing such highway; claiming that the proceedings had were so defective that Felton acquired no jurisdiction, and no legal highway is established. It appears that on March 10, 1888, a petition, signed by eight freeholders of the township of Dorr, was presented to Mr. Felton, as commissioner of highways, asking that such highway be laid out, and that on March 15th he served a notice on the parties interested in the lands to be taken, stating that the commissioner would meet at the house of Mrs. Osborn, in said town, on the 28th day of March, 1888, at 9 o'clock A. M., to proceed to view the premises described in said application and notice, and ascertain and determine the necessity of laying out the highway above described, and to appraise the damages thereon. The commissioner made an affidavit of service of this notice, in which he says he served the notice upon James Turner, Mrs. Osborn, A. Truax, A. P. Varvey, F. D. Schofield, James R. Thompson, L. W. Ehle, Fred Ehle, and the Lake Shore & Michigan Southern Railroad Company, by leaving a copy of the notice with their freight agent at Dorr station, on said railroad, by personal service upon James Tanner, L. W. Ehle, and Fred Ehle, and by leaving a copy at the residence of the other persons above named. It appears that on the 4th and 5th of April, 1888, the commissioner met with a surveyor, and caused a survey of such proposed highway, and made a map or plat thereof. On April 7, 1888, the commissioner made the following return of his doings in the premises, and filed the same in the office of the township clerk, with all the papers relating to the laying out of such highway, including proofs of service of notice upon the parties interested, as above stated. The return made by the commissioner is as follows: "The undersigned commissioner of highways of the township of Dorr, in the county of Allegan, hereby makes return that, upon the application made to him in pursuance of law by seven or more freeholders of said township to lay out a highway as hereafter described, the said highway commissioner did, after due notice, given according to law, proceed on the 28th day of March, 1888, to view the premises described in said application and notice, and ascertain and determine the necessity of laying out such highway. Said hearing was adjourned to April 7, 1888, when I proceeded to justly and impartially appraise damages thereon. And doth further return that he considers and determines that a public highway shall be, and the same is hereby, laid out pursuant to said application as follows:" The line of the highway is then described according to the survey and plat. The commissioner then says: "He doth further return that he has justly and impartially appraised the following amount of damages thereon sustained by the persons named, and payable to them, by reason of laying out said highway, as follows:" The names of the parties, and the amount of damages awarded to each, are then stated in the return, as well as the names of those to whom no damages are awarded. On the same day the commissioner made a supplemental return, as follows: "Application having been made to the undersigned commissioner of highways of said township by at least seven freeholders therein, for laying out a highway as hereinafter described, and the said commissioner having pursuant to statute ascertained and determined the necessity of taking the property required for such highway, and appraised the damages thereof, and having duly made return of his proceedings, and the same being filed in the office of the township clerk, the said commissioner doth hereby order and determine that a highway be, and the same is, laid out and established, as follows." The line of the highway is then described. It appears that on May 19, 1888, James E. Truax, Allison P. Varvey, James R. Thompson, Frank D. Schofield, and Fred E. Ehle made and delivered a release of the right of way of land for such highway across their respective lands, in consideration of one dollar, and agreed therein that "said highway may pass over the lands and premises owned by them in severalty on the line of said road, and they severally release to said township of Dorr all claim to and damages by reason of said highway running through said lands." On the same day John Truax executed a release in the same form. All these proceedings appear of record in the office of the town clerk of the township of Dorr.
It is contended, first, that there was no sufficient service of notice upon the railroad company. Section 1298 How. St provides "notice shall be served upon railroad companies by leaving a copy thereof with the agent in charge of any ticket or freight office of the company operating such railroad in the line thereof." And by section 1299 it is provided: "Upon the service of the notice required by the last preceding section, and before any further proceedings shall be...
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