210 Mich. 531 | Mich. | 1920
The bill was filed to restrain the letting and constructing of a drain. Lee township of Allegan county is adjoined on the .east by Cheshire township of the same county and on the south by Columbia township of Van Burén county. Near the southwest corner of section 21, Lee township, and near Lee station on the Pere Marquette railway, several confluent
There was filed with the drain commissioner of Allegan county an application to locate and establish a drain commencement, route and terminus of which were:
“Commencing about 25 rods north of S. E. corner of section 25, town one north, range 15 west (Lee), thence in S. W’ly course to center of N. E. 14, section 36, town 1 north, range 15 west, thence in semi-circle from N. W. corner to S. W. comer W. Va S. W. 14, section 31, town 1 north, range 14 west (Cheshire), thence in S. W’ly course to Mud lake in Columbia township, Van Burén county. Channel between Mud lake and Deer lake to be cleaned out; then starting at outlet of Deer lake in N. E. 14, section 2, Columbia township, Van Burén county, running thence N. W’ly along course of creek (Brush creek) to Lee station.”
It is not claimed that this application was in anywise insufficient.
The said drain commissioner also received an application for cleaning out, deepening and extending a township drain known as “Cheshire No. 19” which traverses, sections 27, 28, 29 and 30 of Cheshire township and has its outlet at a point on the southwest quarter of section 30, which point is approximately the upper terminus of the drain sought to be established under the application first above mentioned. As to “Cheshire No. 19” the commissioner made a first order of determination but no further proceedings were had, and plaintiffs say that the application for this drain was wholly insufficient and void.
Acting upon the application first above mentioned the drain commissioners of Allegan and Van Burén •counties, after a survey, made a first order of determination by which the drain was designated “Brush
“It is ordered, adjudged and decreed and the court doth order, adjudge and decree that the temporary injunction stand until the defendant drain commissioners secure the right of way of J. Henry Amt Co. and correct the proceedings in the probate court as to_ the certified copy of the application. And upon filing proof with the clerk of the court in compliance with these conditions that the temporary injunction*535 in. said cause be dissolved and the bill of complaint dismissed and that the said drain commissioners are hereby permitted to take such steps as they are advised are necessary to obtain such right of way. Notice thereof to be served upon Clare E. Hoffman, as attorney for said J. Henry Amt Co.”
The plaintiffs have appealed.
“That the proceedings in establishing any drain shall be subject to review upon certiorari, as herein provided. Notice of such certiorari shall be served upon the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk. * * * If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”
By the filing of a valid application for the Brush creek drain the commissioners acquired jurisdiction. The extending the line of the drain upwards of three miles beyond the route described in the application did not make the drain proceedings void. The most that could be claimed for it is that it was an irregularity. Hackney v. Elliott, 23 N. D., at page 389 (137 N. W. 433); Northern Ohio R. Co. v. Hancock County Com’rs, 63 Ohio St. 32 (57 N. E. 1023); McCleery v. Zintsmaster, 187 Ind. 37 (114 N. E. 625); Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30 (120 S. W. 391). Other irregularities are also claimed by these plaintiffs. But as to all these claimed irregularities, these plaintiffs being parties to the drain proceedings, the statute above quoted is controlling.
The decree as modified is affirmed, with costs of this court to the defendants.