Washtenaw County v. Saline River Intercounty Drainage Bd.

• Decision Date: 05 January 1978
• Docket Number: Docket Nos. 77-38,77-79 and 77-80,77-39
• Citation: 80 Mich.App. 550,264 N.W.2d 53
• Parties: WASHTENAW COUNTY, Pittsfield Township, and York Township, body corporates, Catherine McClary and Meri Lou Murray, statutory members of the Augmented Drainage Board for the Saline River Intercounty Drainage Project, Plaintiffs-Appellees, v. SALINE RIVER INTERCOUNTY DRAINAGE BOARD, and Stanley R. Quackenbush, statutory chairman of the Saline River Intercounty Drainage Board, Defendants-Appellants. CITY OF SALINE, a Michigan Municipal Corporation, Plaintiff-Appellee, v. SALINE RIVER INTERCOUNTY DRAINAGE BOARD and the Augmented Drainage Board of the Saline River Drain, Defendants-Appellants. 80 Mich.App. 550, 264 N.W.2d 53
• Court: Court of Appeal of Michigan — District of US

Page 53

264 N.W.2d 53

WASHTENAW COUNTY, Pittsfield Township, and York Township,

body corporates, Catherine McClary and Meri Lou Murray,

statutory members of the Augmented Drainage Board for the

Saline River Intercounty Drainage Project, Plaintiffs-Appellees, v. SALINE RIVER INTERCOUNTY DRAINAGE BOARD, and Stanley R.

Quackenbush, statutory chairman of the Saline

River Intercounty Drainage Board,

Defendants-Appellants.

CITY OF SALINE, a Michigan Municipal Corporation, Plaintiff-Appellee, v. SALINE RIVER INTERCOUNTY DRAINAGE BOARD and the Augmented

Drainage Board of the Saline River Drain,

Defendants-Appellants.

Docket Nos. 77-38, 77-39, 77-79 and 77-80.

80 Mich.App. 550, 264 N.W.2d 53

Court of Appeals of Michigan.

Jan. 5, 1978.

Released for Publication April 6, 1978.

[80 MICHAPP 552] Drillock, Atkins & Schrope by W. J. Drillock, James A. Marcus, Marlette, for defendants-appellants.

[80 MICHAPP 551] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Henry J. Boynton, Asst. Atty. Gen., for Quackenbush.

Eliot G. Striar, Ann Arbor, for Washtenaw Cty., McClary and Murray.

John L. Etter, Ann Arbor, for Pittsfield.

Allan W. Grossman, Saline, for City.

Before J. H. GILLIS, P. J., and BASHARA and HEADING, ^* JJ.

BASHARA, Judge.

This is an appeal by defendants from an order of the trial court granting, sua sponte, a summary judgment for plaintiffs, enjoining defendants from establishing the Saline River as an intercounty drain. Although the judgment of the trial court rests upon a procedural peculiarity, we need not address that aspect of the case. The gravamen of the controversy is the interpretation of pertinent sections of the Drain Code of 1956. M.C.L.A. § 280.1, et seq.; M.S.A. § 11.1001, et seq.

A petition to the Director of the Department of Agriculture of the State of Michigan was submitted by the Townships of Milan, London, and Dundee to locate, establish, and construct the Saline River as an intercounty drain. Pursuant to statute, the defendant drainage boards were created. M.C.L.A. §§ 280.514, 280.515; M.S.A. §§ 11.1514, 11.1515. Following the statutory scheme, meetings were held by the defendants, resulting in a final order of determination. ¹ M.C.L.A. § 280.519; M.S.A. § 11.1519.

Subsequently, plaintiffs initiated suit to enjoin the defendants from proceeding further under the petition to develop the contemplated drain project. [80 MICHAPP 553] As the principal basis for relief, plaintiffs asserted that the petition, being filed pursuant to section 541 of the Code, did not contain an agreement to pay, nor was it accompanied by a deposit for, the cost of planning and engineering, as required by section 542 of the Code. See M.C.L.A. § 280.542; M.S.A. § 11.1542. This, the plaintiffs argued, made the petition fatally defective and precluded further proceedings by the defendants under the petition.

Defendants maintained that the petition was filed pursuant to section 513, and therefore no accompanying agreement or deposit for costs was necessary. See M.C.L.A. § 280.513; M.S.A. § 11.1513. It was the position of defendants that the petition was intended to establish the Saline River as an intercounty drain, not to assume jurisdiction over the river, as was the intent of petitions filed under section 541. See M.C.L.A. § 280.541; M.S.A. § 11.1541. Notably, the opposing litigants each referred to the specific language of the petition to support their respective positions; ² i. e., plaintiffs contend that the petition is filed under section 541 while defendants maintain that the filing is pursuant to section 513.

Upon motion for summary judgment by defendants, the trial court ruled that the petition came within the provisions of section 541 and was, therefore, improperly filed, since the petitioners failed to comply with section 542, regarding a bond for preliminary[80 MICHAPP 554] costs. The trial court denied the defendants' motion and granted injunctive relief to plaintiffs.

It is plaintiffs' contention that whenever a petition is filed seeking to locate, establish, and construct an intercounty drain utilizing the bed, tributaries, banks, and floodplains of a natural watercourse, section 541 of the code sets the petition requirements. Plaintiffs argue that the terms "banks and floodplains" used in the petition are not within the definition of "drain" recited in M.C.L.A. § 280.3; M.S.A. § 11.1003. This in conjunction with the petition's description of the improvements to be made to the river indicates that the petition was filed under section 541. It is urged by plaintiffs that the failure to expressly request in the petition an assumption of jurisdiction over the river does not militate against concluding that section 541 governs, since the practical effect of the petition is tantamount to an assumption of jurisdiction.

Defendants claim that the legislative intent underlying section 541 is to provide for complete control over a natural watercourse to prevent flooding and pollution. The purpose of the petition, defendants argue, was to construct improvements to the river to facilitate its use as an intercounty drain. Complete control over the use of the river not being requested by the petition, defendants urge that it was properly filed under section 513.

We must resolve whether a petition to establish and make improvements to a natural watercourse as an intercounty drain must be filed under section 541 of the Drain Code of 1956, notwithstanding that the petition does not assert assumption of jurisdiction over the watercourse. That determination affects both the requirement of a bond for preliminary costs and the apportionability of those costs [80 MICHAPP 555] among the public corporations benefitted by the improvements.

We are guided in our decision by the principles of statutory construction, since our research has disclosed no case law pertinent to the controversy under review. Most appropriate to our task is the rule that legislative enactments be read as a whole so as to harmonize the meaning of their separate provisions and give effect to the Legislature's intent. Munro v. Elk Rapids Schools (On Rehearing ), 385 Mich. 618, 189 N.W.2d 224 (1971), adopting the dissenting opinion in Munro v. Elk Rapids Schools, 383 Mich. 661, 688, 178 N.W.2d 450, 462 (1970). Applying this rule to chapter 21 of the Drain Code of 1956 leads us to conclude that the petition in question was properly filed pursuant to section 513. M.C.L.A. § 280.513; M.S.A. § 11.1513.

In analyzing the distinction between section 513 petitions and those filed under section 541, it is important to observe the purpose contemplated by the language of those sections. Both sections 513 and 541 require public health necessities as a precondition to a properly filed petition. ³ However, section 513 speaks in terms of petitioning for the location, establishment, and construction of an intercounty drain. See M.C.L.A. § 280.513; M.S.A. § 11.1513. It also requires that the location and route of the drain be described only with such particularity that a reasonably certain determination may be made as to the areas to be served by the drain. Id.

Section 541, on the other hand, contemplates [80 MICHAPP 556] that a petition filed thereunder be for the purpose of assuming complete control over a natural watercourse. The statute, which is phrased in terms of an assumption of jurisdiction, intends that the control exercised over the watercourse have as its purpose the prevention or correction of conditions that "cause or increase the danger of flooding, pollution, desecration or obstruction" of such watercourse. M.C.L.A. § 280.541; M.S.A. § 11.1541.

A companion provision ⁴ to section 541 requires that the petition be accompanied by a bond for the cost of planning and engineering necessary to formulate a recordable description of the watercourse over which control is sought. M.C.L.A. § 280.542; M.S.A. § 11.1542. Further, those costs are not assessable against any of the public corporations benefited by improvements to the watercourse, although the cost of the improvements may be so assessed. M.C.L.A. § 280.545; M.S.A. § 11.1545. In contradistinction, all engineering and planning costs are accessable for drain projects initiated by a section 513 petition, ⁵ and such petitions need not be accompanied by a bond for those costs.

Another important measure of distinction between sections 513 and 541 petitions is the degree of control exercised by the drainage boards created by those respective petitions. Under section 513 petitions the drainage board has a continuing responsibility for the maintenance and operation of the drain. M.C.L.A. § 280.530; M.S.A. § 11.1530. However, contrary to plaintiffs' contention, we do not construe this to vest the board with control equivalent to that obtained by an assumption of jurisdiction pursuant to a section 541 petition. We derive this conclusion from [80 MICHAPP 557] the authorization given by section 539 to public corporations assessed for drain project costs to exact connection and service fees from property owners utilizing the drain. M.C.L.A. § 280.539; M.S.A. § 11.1539. It does not appear that the drainage board has control over the drain to the exclusion of all other public entities affected by the section 513 drain project.

By comparison, the authority obtained by the drainage board under a section 541 petition is absolute. Once the description of the watercourse required by section 542 is recorded, "no constructing, excavating, land filling, removing of structures, trees, plants or shrubs, dumping, or discharging of sewers or drains shall be permitted or continued in the bed, tributaries, banks or flood plains" of the watercourse "except upon written order or permit issued by the drainage board". M.C.L.A. § 280.543; M.S.A. § 11.1543. As declared in section 544, the recording "constitutes a regulation and limitation" on the use of...