39 Mich. 168 | Mich. | 1878
This is a proceeding to review the action of the township drain commissioner in laying-out a drain. Several questions are raised on the record, but an important jurisdictional difficulty renders the rest unimportant.
Instead of summoning a jury, the drain commissioner applied to the judge of probate for the appointment of three commissioners to serve in the place of jurors. This application was made ex parte, and the commissioners so appointed acted also ex parte in determining the necessity of the work and the damages to be allowed.
If jurors had been summoned, the law provides that the land owner refusing to release a right of way shall be at liberty to strike off names from the panel. And the statute plainly contemplates that the party may always be present, and look after his rights. It therefore involves the necessity of either proceeding without a break after the first notice to appear, or else of giving some adequate notice of all suspended or adjourned proceedings. See L. 1875 (No. 140), p. 166, et seq.
The provision concerning, commissioners is very brief. The drain commissioner is authorized to “apply to the probate court of his county for the appointment of three commissioners to act in place of said jury, who shall take the same oath and perform the same duties prescribed above for said jury.” § 5.
It is the action of these commissioners which finally disposes of the rights of the land owner. He is as much concerned in securing competent and impartial commissioners, as jurors, and unless he can be heard
We think these proceedings are fatally defective in having been taken without any such notice. The stat
The proceedings must be quashed, but without costs.