Vill. of Clawson v. Van Wagoner
| Decision Date | 02 July 1934 |
| Docket Number | No. 168.,168. |
| Citation | 268 Mich. 148,255 N.W. 743 |
| Parties | VILLAGE OF CLAWSON v. VAN WAGONER, Drain Com'r, et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County, In Chancery; Frank L. Covert, Judge.
Suit by Village of Clawson against Murray D. Van Wagoner, Oakland County Drain Commissioner, and others. From an adverse decree, defendants appeal.
Reversed and bill dismissed.
Argued before the Entire Bench.Arthur P. Bogue, Pros. Atty., and Robert D. Heitsch, Asst. Pros. Atty., both of Pontiac, for appellants.
Arthur E. Moore, of Royal Oak, for appellee.
Plaintiff filed bill and had decree restraining enforcement of an assessment against it for drain taxes.
Petition for the drain was filed in 1925. At that time a village could not be assessed as a unit for drain benefits.
Plaintiff village commissioners and officers individually signed petitions for laying out the district and locating the drain at bar; by resolutions in January and June, 1927, the village commission formally urged construction of the drain; on July 8th the village released right of way in a street for it. By Act No. 331, Pub. Acts 1927, effective September 4th, a village could be assessed at large for drain benefits. On September 15th the drain commissioner entered notice of letting contracts and of review of apportionment of benefits; notices of the review were published but made no reference to the village; and no notice was served on the village president as required by the act. On September 15th also the drain commissioner entered in his office the statutory order as to the number of instalments and the issue of bonds. It shows the apportionment of benefits to plaintiff at 10 per cent. of the cost. The bond form was approved by the treasurer and probate judge.
The village manager of plaintiff and commissioner attended the hearing on apportionment, learned that the village had been charged with 10 per cent. of the cost, reported the fact to the village commission, and the manager solicited the drain commissioner to reduce the apportionment. He knew how to make application for review, but did not do so, as the village wanted the drain constructed because it would save it a large sum of money in the disposal of sewage.
Afterwards a determination of costs was made and the contract for construction let. A village engineer did preliminary work and the drain commissioner paid the village for it. The engineer who designed the drain worked under the orders of the official village engineer. No objection to the project was made by the village, and it paid to the township, February, 1929, $5,019 to reimburse it for amounts it had paid on the assessment. Plaintiff claims the apportionment and assessment against it are void for want of notice and irregularities in not naming it in all the proceedings and because the proceeding had been commenced before it could be assessed for benefits.
Plaintiff, having had actual notice of all the 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, 214 N. W. 412, and, having stood by and seen the drain constructed and the expense incurred without pursuing such remedy, it is estopped from complaining of them, Moore v. McIntyre, 110 Mich. 237, 68 N. W. 130;Hall v. Slaybaugh, 69 Mich. 484, 37 N. W. 545;Township of Walker v. Thomas, 123 Mich. 290, 82 N. W. 48;Wilson v. Woolman, 133 Mich. 350, 94 N. W. 1076. It may be said that the facts present a particularly strong case of estoppel because the city was a moving and insistent party in furthering the project, part of the drain was constructed to care for its particular needs, the drain saves the city over twice the amount of the assessment against it, and its complaint of statutory irregularities is purely...
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Royal Oak Drain Dist., Oakland County, Mich. v. Keefe, 7280.
...law, and this is clearly recognized in Michigan in respect to the very powers here challenged under the statute. Village of Clawson v. Van Wagoner, 268 Mich. 148, 255 N.W. 743. Our inquiry must then be as to whether under the facts of this case and the applicable law the presumption has bee......
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City of Highland Park v. Clark
...N.W. 240;Township of Lake v. Millar, 257 Mich. 135, 241 N.W. 237;Hankinson v. Deake, 265 Mich. 1, 251 N.W. 418;Village of Clawson v. Van Wagoner, 268 Mich. 148, 255 N.W. 743;Village of Oak Park v. Van Wagoner, 271 Mich. 450, 260 N.W. 743;Kennedy v. Dingman, 272 Mich. 24, 261 N.W. 123;Meyeri......
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Keefe v. Drain Com'r of Oakland Cnty.
...Clawson storm sewer drain. This improvement was held to be a legal drain and the assessment, therefore, valid in Village of Clawson v. Van Wagoner, 268 Mich. 148, 255 N.W. 743. The original assessment roll was payable in annual installments from 1928 to 1937, inclusive, and was levied as fo......
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Meyering Land Co. v. Spencer, s. 119
...450, 260 N.W. 743, or whether it falls within the rule of Hankinson v. Deake, 265 Mich. 1, 251 N.W. 418, and Village of Clawson v. Van Wagoner, 268 Mich. 148, 255 N.W. 743. If a sewer was constructed in pursuance of a petition for a drain, the drain commissioner was without jurisdiction to ......