Walters v. Chamberlain

• Decision Date: 14 April 1887
• Citation: 65 Mich. 333,32 N.W. 440
• Court: Michigan Supreme Court
• Parties: WALTERS v. CHAMBERLAIN.

32 N.W. 440

65 Mich. 333

WALTERS v. CHAMBERLAIN.

Supreme Court of Michigan

April 14, 1887

Error to Monroe.

O.A. Critchett and E. Baldwin, for plaintiff.

C.A Golden and E.R. Wildey, for defendant and appellant.

SHERWOOD J.

This cause was commenced in justice's court, and is an action of trespass, brought by the plaintiff against the defendant for entering upon her land, and there digging up, excavating and removing the dirt, and therewith covered up and destroyed the grass upon the land growing, and making a ditch thereon to her damage $100. Defendant pleaded the general issue, and gave notice that he would show on the trial what he did in the premises was in the construction of a drain, duly laid out, authorized, and established by the township drain commissioner across the plaintiff's land; that he had the contract for the construction of the same; and that the title to real estate would come in question; and filed the statutory bond; and the cause was duly certified to the circuit court for the county of Monroe, where a trial was had before Judge HOWELL, by jury. The plaintiff obtained judgment, and the cause is now before us for review on error.

There was no question made upon the trial but that the defendant committed the acts complained of. The plaintiff showed by her testimony that her damage by reason of the digging was $100, in case she should refill the ditch, and $400 if it was allowed to remain open. The defendant, for the purpose of justifying his action, then offered the proceedings of the drain commissioner in establishing the ditch, and the contract made for the construction of the same, and of which the defendant was assignee, under which he entered upon the plaintiff's premises and committed the acts complained of. This was objected to, upon the ground among others, that the application for the appointment of the special commissioner, also the warrant, were fatally defective and illegal and void, and no defense to the plaintiff's suit. The plaintiff's objection was subsequently sustained by the court, and no exception seems to have been taken to this ruling. This is clearly an end of the case. The proceedings of the commissioner being void, no right could accrue to any party thereunder; and if the plaintiff, either by herself or by her agent, was present while the proceedings were being had before the commissioner or commissions, and did not object thereto, it would make no...