Sturm v. Kelly

120 Mich. 685 | Mich. | 1899

Grant, C. J.

(after stating the facts). 1. The important question is the first one. The petition to the commissioner did not ask for the cleaning óut of an established drain, and it is urged that the commissioner obtained no jurisdiction to make this part of the order. The respondent makes the following return upon this point:

‘ ‘ Said established drain is the natural outlet of the waters to be drained by said Behmlander drain which are situated north of the Salzburg road; and there is no feasible outlet for said last-mentioned waters in 'the direction of Squaconning creek, except through said established drain, without constructing a new drain practically parallel therewith. That a large portion of said established drain, so called, is a creek or natural water-course, and is so classed in the field-notes of the government survey of said land. * * * That the application upon which my said action with reference to said drain is based, while formally asking for the establishment of a drain as if no drain had ever been established upon this line or any portion thereof, was, in my judgment, sufficient’ both for the establishment of a drain and as giving jurisdiction and authority to clean out and make use of that portion of a then existing drain or water-course covered by the application, and which greatly lessened the expense and labor required to establish said drain and secure the proper drainage for the lands adjacent thereto. * * * Said petition cannot be reasonably construed to mean, or to have been intended by the signers thereof, that a new drain was to be established between the points ■ aforesaid, and can only be construed to mean that the -portion of said drain between the points aforesaid was to be established by cleaning out and making use of the said established drain or water-course. And that said application, in substance and in fact, asked for and gives jurisdiction for doing the work actually done by me in the establishing of said drain as aforesaid, and that said application can only be construed as asking for the establishment of a drain by making a new cut along the line thereof to the point where the established drain, so called, is reached, and cleaning out and improving said established drain so as to conform with the cut so made from that point to the terminus of the drain.”

There was no record of the location and establishment of this so-called old drain. Under the return, it was once a natural water-course. We think this point is ruled by Hauser v. Burbank, 117 Mich. 463. Where a watercourse, or a portion of an old drain, becomes a part of a new drain to be established, we do not think that separate proceedings are necessary to be taken for cleaning out the old drain, or that the petition should ask that the old drain be cleaned out. We hold the petition sufficient.

2. The second and third questions may be treated together. The railroad company did not execute a formal release, but it gave a written consent or license for the drain to cross its right of way, and erected a culvert under its roadbed on the line of the grade of the drain for that purpose. This is a sufficient release.

One Meyer owned some land along the drain, petitioned for the drain, and is the only abutting landowner who did not release his right of way. He had signed a release of right of way for a like drain one year before. Kespondent was unable to see him, to procure his signature to a release, and relied upon his willingness to give the same when called for. The release for a right of way for one drain cannot operate as a release for another. The obtaining of releases is essential. Zabel v. Harshman, 68 Mich; 273. The court, under section 3, chap. 5, Act No. 254, Pub. Acts 1897, is authorized to direct the county drain commissioner to correct any error, and then proceed as though no error had been made. Under this provision, and the return of the respondent, we think it proper to permit the proceedings to stand, upon the respondent’s acquiring a release of the right of way from Mr. Meyer.

3. We do not think that a release by the abutting owners along the so-called established drain was essential, in the face of the fact that the return shows that such owners will not be damaged by the use of this drain, but, on the contrary, will be materially benefited, and that the dimensions of the ditch are not changed.

Judgment modified and affirmed.

The other Justices concurred.