Gable v. Deal , 1907 Mich. LEXIS 821 ( 1907 )

Gbant, J.

(after stating the facts). The proceedings were instituted upon the petition of the defendants. The plaintiffs and their predecessors in office proceeded upon the second petition regularly until enjoined by the court of equity. The failure to construct the drain was not due to any fault of the plaintiffs or their predecessors. The defendants, the petitioners, are therefore liable for the costs. Among the items included in the judgment are $173.50 for the services of the surveyor, rendered under the first petition, and $163.50 to Mr. Baker, the then drain commissioner, for services rendered under the same petition. The theory under which these items were allowed appears to be that, although rendered upon the first application, they were used upon the second application and these defendants received the benefit, or, as Mr. Baker in his testimony said:

“All these services would have had to be rendered after June 30th, if they had not been rendered before; we simply used the knowledge acquired before.”

The result is, if the judgment be sustained, that the expense of the first and abandoned proceedings, which should have been shared among the 80, is now imposed upon 23, 7 of whom were not petitioners to the first proceedings. Drain proceedings are statutory and the requirements of the statute must be followed. The commissioners could no more pay for the knowledge obtained by a former abandoned proceeding than they could pay for knowledge obtained from any other source. If the drain commissioners in the first proceedings were not responsible for the defect and acted in good faith, the petitioners in that case alone must pay for the expense incur red. They could not be imposed upon petitioners to another petition under the plea that they were used upon the second petition. If the defendants had had knowledge of the action of the commissioners in so doing and assented to it, either expressly or tacitly, they would undoubtedly be responsible, but of this there is no evidence. In effect these defendants were no worse off than they would have been if the commissioners had procured another independent survey, — but the law does not permit the commissioners to impose upon petitioners to these pro- . ceedings any but the actual costs incurred in such proceeding.

The other objections raised have had due consideration, and we find that they are not well taken. They are not of sufficient importance to the profession to discuss.

The judgment will be - modified, eliminating these two items, with costs of this court to the defendants. As so modified it is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Moore, JJ., concurred.