Township of Swan Creek v. Brown

Grant, J.

(after stating the facts). 1. Counsel for the complainants say in their brief that the proceedings, are not questioned except in two or three particulars, one of which is the laches of the drain commissioner in acting upon the petition, and the other that the provision of the act under which the cost of constructing this drain was apportioned is unconstitutional. These points were not argued in the main brief of complainants, but are argued in the reply or supplemental brief. Whether they should now be considered we will not decide. Section 4346, 2 Comp. Laws, provides a remedy by certiorari when the proceedings are attacked for defects. The statute gives 10 days in which to give notice of such certiorari, and, if such proceeding be not taken within the time prescribed, its legality shall not be questioned in any suit at law or in equity. • No such proceedings were instituted, and no objection made until the filing of this bill, on October 22d. Meanwhile the contract had been let, and $3,589 expended in the construction of the work. Complainants did not *385 act with sufficient promptness, and are guilty of laches which bars their right to review defects, either by certiorari or by a bill in equity. Moore v. McIntyre, 110 Mich. 237 ( 68 N. W. 130 ), and authorities there cited.

2. Complainant Allen has not alleged in his bill, nor shown by his testimony, that his land is injured by the construction of this drain. He is, therefore, not entitled to maintain this suit. All the cases cited by the complainants in support of their contention are cases in which drain commissioners have flooded the lower lands by turning upon them an unusual flood of water from the higher lands, to the injury of the lower estate. Authorities are uniform that this cannot be done, even under .the authority of the drain commissioner, without compensation.

3. The complainant township, as a municipality, owns, no land to be injuriously affectdd. It cannot maintain a. bill in behalf of those landowners in the township who do> claim to be'injuriously affected. Bach landowner may maintain a suit to determine that question, but the township cannot interfere, and impose the cost of such suit upon the entire township. It follows that, if the township can maintain this suit, it is upon the sole theory that the construction of this drain will empty the waters of Rich-land and Fremont townships upon the lands of the township of Swan Creek, to the injury of the public health. The obvious reply is that this power is not, by law, conferred upon courts. It is placed exclusively in the power of those tribunals established by the law for the sole purpose of determining the question of necessity and of eminent domain. Neither the circuit court nor this court is at liberty to substitute its judgment upon this point for the judgment of the special commissioners who were appointed to determine that question. The testimony upon this point is conflicting. The finding of the special commissioners or a jury appointed under the statute to determine this is as conclusive upon the courts as is the verdict of a jury upon contested questions of fact. Clark v. *386 Drain Com'r, 50 Mich. 618 ( 16 N. W. 167 ); Smith v. Carlow, 114 Mich. 67 ( 72 N. W. 22 ).

Decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.