Dewey v. Kaner

Champlin, C. J.

Application was made on October 9, 1888, to the commissioner of highways of the township of Raisin, in the county of Lenawee, to alter and widen a certain highway in said township, so that it should be four rods wide. The center line of such highway, when widened, was particularly set forth in the petition. The commissioner gave notice to the parties interested, and who would be affected by the alteration, of the applica. tion, and of the time and place when and where he would meet to proceed to view the premises described in the application and notice, and ascertain and determine the necessity of so altering said highway, and appraise the damage. The time appointed was October 26, 1888, at 1 o’clock p. m. At the time and place appointed the commissioner met. Proof of service of notice personally upon L. D. Dewey, the petitioner, showed that such notice had been served on October 12, 1888. The commissioner proceeded to view the premises, and determined that it was necessary to alter said highway pursuant to the application, and to take the land described therein for the use of the public for a public highway; and he ascertained and appraised the damage of petitioner by reason of taking a strip of his land therefor at $130, said petitioner being the only person who claimed damage therefor. The proceedings and return of the commissioner were duly returned to the office of the township clerk, and recorded October 27, 1888. The return shows that the damages awarded to petitioner were tendered to him on May 17, 1889. It further appears by the return that at the time and place appointed for meeting on October 26, 1888, petitioner appeared before him with his attorney, and filed written objections against the commissioner proceeding, as follows:

“¥e object to the commissioner proceeding in this matter, for the following reasons:

"1. Because no proper notice was served.

“2. Because there is no description of the highway to be altered as required by law.

“3. Because the highway spoken of in the notice served does not in fact exist.

“ i. Because there is no highway crossing the description mentioned in said notice.

“5. Because there is no description of any highway to be altered, contained in said notice.

“ 6. Because no notice was given as required by law.

“7. Because the original petition is not present to be viewed by any one.

“8. Because there is no proof of service, or any notice. L. D. Dewey.”

The action of the commissioner was not challenged until July 8, 1889, when this writ of certiorari was sued out. The errors assigned in the affidavit for certiorari are as follows:

“1. Because it does not appear by said record or proceedings that there is a legal highway to be altered.

“2. Because it does not appear in any of the proceedings taken to alter said alleged highway that at the time of the hearing upon the application therefor the commissioner had present at such hearing said application, notice, or affidavit, as the law requires.

"3. Because said commissioner did not have such application, affidavit, or notice present at such hearing.

“4. Because no such notice as the law requires in such cases was ever served upon this deponent.

“ 5. Because the application hereto attached does not give the highway commissioner jurisdiction to altor a highway, or to act in the premises.

“6. Because the highway spoken of in the proceedings does not in fact exist.”

The return shows that there,was a public highway for the past 30 years and upwards along the line described in the application, which was open and traveled by the public, and worked as a public highway; that since said Dewey has purchased the land adjoining such highway he has been constantly encroaching thereon, setting his fences further into the highway towards the center thereof, claiming there was no highway there. The return further shows that notice of the application was duly' served upon petitioner, and that such notice is in form and substance sufficient.

As to the second and third assignments of error, the return shows that the petitioner appeared by his attorney, and objected to the proceedings on the ground that the application and notice and proof of service were not present; and that the commissioner then informed them that he had left said papers at home, but would go for them if desired, but said attorney remarked that it would not be necessary. The return further shows that the original papers had been seen and inspected by petitioner prior to said day, and that tlie record thereof in the record-book kept by the town clerk was present at said time. Under these circumstances, the second and third assignments of error must be overruled.

The fourth assignment of error is overruled. We have already observed that the notice was sufficient.

The first, fifth, and sixth assignments are overruled. The return shows with sufficient certainty that there was a legal highway existing to alter; that it was not four rods wide; that petitioner claimed to own the land which would be affected by widening the highway to its legal width. The township authorities were not obliged to enter into an expensive litigation to determine whether Dewey had encroached upon the highway, when the question was in doubt, and the fact disputed. Dewey cannot complain because they took him at his word, and proceeded to condemn his land for highway purposes, and ■pay him damages and compensation therefor. The return makes a complete answer to the petition, and shows that the errors alleged do not exist.

The proceedings of the highway commissioner must be affirmed, with costs against the plaintiff in certiorari.

The other Justices concurred.