Hankinson v. Deake , 265 Mich. 1 ( 1933 )

The purpose of this suit was to test the validity of drain proceedings. The bill was filed by owners of land affected by the drain. The defendant Deake was drain commissioner of Washtenaw county at the time the proceedings for the construction of the drain were instituted. Other defendants are the present drain commissioner, the county treasurer, and the township treasurer of Ypsilanti township, where the drain is located.

In accordance with a proper petition, the county drain commissioner established a drainage district comprising about 1,100 acres of land which he designated the "Beyer Drainage District." The drain was completed at a cost of $300,000. The plaintiffs contend that the drain, so-called, is in fact a sewer; that the action taken by the commissioner was under the drain law which gave him no authority to construct a sewer, and therefore the whole proceedings are a nullity. On the hearing the trial court sustained the plaintiffs' contention, and entered a decree enjoining the collection of the assessments for the cost of construction, and setting them aside as illegally imposed. The defendants have appealed.

The sole question involved is whether the drain, so-called, is in fact and in law a drain or a sewer. If a sewer, the commissioner was without authority under the drain law to construct it, and the whole proceedings are a nullity.

It is conceded that there was a pressing need of adequate drainage of this district comprising about 1,100 acres of land. The property owners desired it, and the board of determination found it was a necessity. But the plaintiffs complain that it was larger than was necessary for drainage purposes, and they stress its size as evidence that it was intended to function as a sewer. It was a large structure, but it was designed to drain a large area of very wet land. The main drain was one and three-fourths miles long, an underground passage constructed of reinforced concrete tile varying in size from 48 inches to 84 inches, with numerous 12-inch laterals, manholes, etc. Considering the water conditions, the character of the soil, and the topography of the land, a covered drain of considerable depth was necessary. The size of the tile necessary depends upon the amount of water to be carried by the drain. Engineers have established methods of determining the total volume of water that would flow through the drain, and thus are able with approximate correctness to determine the size of tile necessary to carry the flow. Their conclusions in this case, honestly and intelligently arrived at, are convincing of the fact that the large tile used in the construction of the drain was necessary to adequately drain the drainage area.

As additional evidence that the drain, so-called, was constructed to function as a sewer, the plaintiffs point to the manner of joining the tile. It is their claim that the joints were cemented together in such a way as to prevent the infiltration of sub-surface water, a method used in the construction of sewers and not in the construction of drains. Whether the joints were made water tight was a disputed question of fact. There is a conflict in the testimony of witnesses who claimed to have examined them. The most dependable evidence on that question is that of Mr. Ohr, a civil engineer, who, by constructing a weir — a measuring device used by engineers — at the outlet of the drain, was able to measure the daily flow of water in dry weather. From his testimony, it convincingly appears that the joints of the tile were sufficiently porous to allow infiltration of the sub-surface water. The necessity for employing the method used in joining the tile seems to have arisen because of the condition of the soil where the drain was laid. The record shows that there was very fine sand in the nature of quicksand and it was necessary, if the structure was to function as a drain, that the joints of the tile be sealed against the sand but not against the water. It is the contention of the defendants that the method used accomplished that result and was not designed to make and did not make water-tight sewer joints. We think the evidence sustains this contention.

Further, in support of their contention that the drain, so-called, is a sewer, the plaintiffs claimed that it is capable of functioning as such and is actually used for that purpose. There are a number of houses in the district — the record does not show how many — but part of the district has been subdivided and some buildings erected. One purpose of the drain was the drainage of the area occupied by residences with flooded basements. It is possible to convey sewage from these residences into the laterals of the drain after it has passed through septic tanks. To some extent that has been done. Householders were told by the commissioner that they could do so, but such use does not mean that the drain is used as a sewer. Feculent matter is removed by the septic tanks and the liquid therefrom is little different from the water which enters the drain from other sources. It is not filthy water, such as is carried by a sewer. Mr. Atwell, an experienced engineer, who had charge of the construction of this drain, testified:

"Anything that receives feculent matter in general would be a sewer. Anything else which takes the surface water and takes the ground water, I believe, would be a drain. And by feculent matter, I mean raw sewage matter, direct from the toilet without passing through a septic tank. The solids at least are removed in a septic tank. There are no evidences in the effluent from this drain that there are any solids of any kind."

In their brief the plaintiffs say:

"The use of vitrified sewer pipe, reinforced concrete pipe, and manholes, and the size and method of construction, all point to the indisputable fact that the structure was capable of use as a sewer, and, being so, falls squarely within the rule announced in Clinton v. Spencer" (250 Mich. 135).

If a drain of this size and character was necessary in the judgment of the commissioner for the adequate drainage of the district, and was designed and constructed for that purpose, it matters not that it is capable of being used as a sewer. InClinton v. Spencer, supra, relied on by the plaintiffs as controlling of this issue, the drain was designed and constructed for the double purpose of a drain and a city sewer. In the instant case, the drain was designed and constructed for drainage purposes only. The proceedings followed by the commissioner are authorized by the drain law and are not to be invalidated because the drain constructed resembles a sewer or is capable of being used as a sewer. It was designed and built for drainage, and the record shows that it effectively serves that purpose. We think that the trial court erred in holding that it was a sewer.

The claim is made that the assessments for benefits as to some of the plaintiffs were so high as to be confiscatory. Undoubtedly there are some inequalities in the assessments. It would be strange and unusual if there were not. But where, as in this case, there is no fraud, and the assessing officer acted in good faith and on a theory reasonably expected to produce equality, the court will not disturb his judgment.

As the petition for the construction of this drain conferred jurisdiction on the commissioner, alleged irregularities in the drain proceedings cannot be taken advantage of in this case. If there were such irregularities as claimed by the plaintiffs, their remedy was by certiorari.

For the reason that the trial court erred in finding the drain in question was not in fact and in law a drain, his decree is reversed. A decree will be entered in this court in accordance with this opinion. Defendants will have costs.

POTTER, NORTH, and FEAD, JJ., concurred with McDONALD, C.J.