text:
    COVELL v. BRIGHT.
    Easements and Servitudes — Deeds — Waters and Watercourses.
    A purchaser of land, for residence purposes, receiving a warranty deed of the premises, is not subjected to a servitude,of an artificial drain, based on prescriptive rights, running under the highway from property of a prior grantor in the chain of title, who also conveyed by warranty deed, where it was not a visible drain or known to the purchaser, and was not shown to be necessary to the enjoyment of the property drained.
    Appeal from Kent; Perkins, J.
    Submitted May 4, 1909.
    (Docket No. 111.)
    Decided July 6, 1909.
    Bill by Chester F. Covell against Garrison S. Bright and others to enjoin the obstruction of a drain. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Golin P. Campbell, for complainant.

      Smedley & Corwin, for defendants.
   Blair, C. J.

The facts in this case were agreed upon by counsel for the respective parties, pursuant to the proviso in section 3, Act No. 340, Pub. Acts 1907. Complainant’s mother, being the owner of certain lands on section 15, in the township of Walker, in Kent county, died in 1893, and the title thereto descended to complainant. Complainant, upon the death of his father in 1895, succeeded to the title to certain lands on section 22 in said township. Before the construction of any drain, a depression which might be called a swale originated on section 22 in the township of Walker, Kent county, Mich., about 16 rods west of the north and south quarter line dividing that section, and about 16 rods south of the north section line dividing sections 22 and 15. This swale from this point of origin ran to the north, then broadened out into a small pond about 5 rods across. West of said point there was a slight rise in the ground, and farther west there was another swale about 25 rods west of the pond aforesaid. In times of high water the water from the east ran westward into the west pond, which extended northward to the section line, and at that point was about 3 rods wide. This swale continued at about the same width across the section line to the north and northeast, and terminated about 10 rods north of the section line in a pond, or swamp, about 5 rods across. This swamp was on section 15, and has no surface outlet whatsoever. The swale was surrounded on all sides by hills, with a considerable elevation above the bottom of the swale. The only way water disappears is by evaporation and by percolation, or soaking through the ground. There is not now, and never has been, so far as the evidence showed, a living stream at this point, nor are there springs in this swale. These swales, or swamps, have no defined banks, or banks at all. The land from the margin of the swale sloped to a considerable elevation, making large hills; and there is no stream and no flowage of water except in cases of heavy rain, when it naturally runs to the lowest spot. At times of rain moderately heavy, and in the spring when the snow melts, large quantities of water have always accumulated in the swale, and this water has settled in the sag, or side swale, on the south side of the section line, and part of it passed to the north across the section line from section 22 to section 15, drained into the swamp, and there disappeared, partially by evaporation and partially by percolation. The result has been that into this swamp on sections 22 and 15 the surface drainage from that 100 acres on sections 15 and 22 has been wont to gather, and for this surface .drainage and the waters flowing on this area there is no other way of escape save by the swale and by percolation and by evaporation. Prior to 1860 a house had been built on section 22, on the premises now owned by complainant, about 30 rods south of the section line, and about midway between the east and west ponds, south of said section line, and about 15 rods south thereof. A highway had previously been built on the line between sections 15 and 22, and this highway was graded between these swales a few inches above the general surface of the soil. In grading this highway a log culvert was put in, so that the water might pass off from section 22 to the north into the swale on section 15. In times of high water the road was inundated, and people were compelled to go through the fields, or to drive through considerable water. This water, however, passed off in a few days from both sides of the highway by percolation and evaporation, but more rapidly on the north side of the section line. Between 1860 and 1870 complainant’s father put in a tile drain between his house and the highway, extending from one swale or pond to the other — that is, from what is called the east swale, or pond, to the west swale, or pond — so as to carry the water from the swale or pond northeast of the dwelling house to the swale or pond northwest of the dwelling house. This tile extended under the driveway, which ran from the public highway to the dwelling house. Complainant’s father then filled in the ravine in front of what is now the complainant’s house, making a lane and driveway there. The tile drain extended under the highway, which was subsequently graded to a height of four or five feet. Witnesses testified that a plank culvert was put in at the time that the road was graded higher, but this seems to have disappeared, and the water has followed the tile drain laid by complainant’s father. The fall in this tile drain is 4 or 5 feet in 35 rods. This tile drain remained substantially undisturbed until 1902, when the Grand Rapids, Grand Haven & Muskegon Railway Company built its road on section 15, north of, and immediately adjoining, the highway. This road was graded to about level with the highway, and a large tile culvert was put through the embankment northerly over the earlier tile drain.

In 1904 complainant laid off his land on section 15, for residence purposes and suburban homes, into tracts of five acres each. One of these parcels, which contained the swale or pond in controversy, was sold to Emery Toogood. On this parcel sold to Toogood there was a high and dry building spot, and Toogood built a house there. The land was dry at the time, and there were no indications of any tile running under the railway track on this land. The tile was below the surface of the ground, and the ground had been cultivated, but the end of said tile drain, and the last tile thereof, extended into an open ditch some 6 inches or a foot beyond the earth covering the remainder of said tile, and the open ditch ran to the north 10 or 15 feet. At the time Mrs. Dempsey bought there was snow on the ground, and at the time Mr. Toogood bought this swale or pond was filled with quite a rank growth of vegetation. At the time of the purchase Toogood did not go down into the low ground, as nothing was said by the complainant about the tile running under the highway, and part of his water south of the highway on section 22 coming onto the land on the north side of the highway on section 15; nor was anything said about this by Mr. Coveil, the complainant, or anybody else, and Mr. Toogood made no inquiry in regard to it, and therefore Mr. Toogood knew nothing about it. Mr. Toogood afterwards cultivated this land and plowed it, but the tile was below the surface, and he never discovered it. Mr. Toogood subsequently sold three acres of these five acres to Ida May Dempsey, and Ida May Dempsey subsequently sold one acre to Mrs. Richards, and one acre to Mrs. Emma McCarthy. Subsequently Mrs. Dempsey orally agreed to sell the parcel of one acre in which the tile drain ends, and in which a portion of the swale lies, to defendant Bright, who, after this oral contract, began hauling sand, and succeeded in partially filling the tile so that the water was, to a large extent, prevented from running through, before the service of the injunction in this case. Bright subsequently abandoned his oral contract of purchase with Mrs. Dempsey, and after such abandonment Mrs. Dempsey went upon the premises and plugged the tile with cement concrete.

There is no system of public drainage of any sort nor any public sewer, and the water gathers in these two swales or ponds or swamps, one on the south side of the highway, and one on the north of the highway, and the swamp on the north side of the highway being a little lower than the one on the south side, if not interrupted, would gather more water when the tile is stopped up, and the stopping up of the tile prevents the water from the south side from coming onto the north side of the highway to a certain extent, but when the water gets high enough to pass through the tile under the right of way of the interurban railway company, it still continues to flow onto the north side onto the land owned by the said Ida May Dempsey, but the stopping of the tile has caused the water to stand in the swamp on the south side of the highway longer than it otherwise would, but both pieces of land become dry during the summer. The complainant, Covell, knew at the time he sold to Emery Toogood that said property was bought for the purpose of building thereon suburban homes. He gave to said Toogood a warranty deed, with full covenants, and free and clear from all incumbrances.

The court dismissed complainant’s bill for an injunction and damages, and complainant has appealed to this court. It is clear that this record does not present a case of interference with the flowage of a natural watercourse or with the natural flowage of surface waters. The right to discharge the waters from section 22 upon section 15 through the artificial drain was a prescriptive right. The question, therefore, for our consideration is whether defendant Toogood, notwithstanding his full covenant warranty deed, took the lands conveyed burdened with this prescriptive right. To entitle the complainant to a decree the burden was upon him to establish that the servitude was apparent, continuous, and strictly necessary to the enjoyment of his lands. 14 Cyc. p. 1169; Carbrey v. Willis, 7 Allen (Mass.), 364 (83 Am. Dec. 688); White v. Chapin, 97 Mass. 101; Crosland v. Rogers, 32 S. C. 130 (10 S. E. 874); Dolliff v. Railroad, 68 Me. 173; Butterworth v. Crawford, 46 N. Y. 349 (7 Am. Rep. 352); Treadwell v. Inslee, 120 N. Y. 458, 465 (24 N. E. 651); Wells v. Garbutt, 132 N. Y. 430, 435 (30 N. E. 978). We are of the opinion that complainant did not establish by a preponderance of the evidence, either that the existence of the subterranean drain was so apparent that defendant Toogood was chargeable with notice thereof, or that it was necessary to the enjoyment of his property.

The decree is affirmed, with costs to defendants.

Montgomery, Hooker, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    THAYER LUMBER CO. v. CITY OF MUSKEGON.
    1. Taxation — Special Assessment — Municipal Corporations.
    The levy of a special assessment for the construction of a sewer, under the provisions of the charter of the city of Muskegon, permitting a reassessment, when in the opinion of the common council any irregularity should exist, or when a tax should be set aside by any court, correcting the defects for which the tax had been set aside by the Supreme Court, is held to be valid, and in conformity with the charter, although in the new proceeding reference is made to the former maps and diagrams.
    2. Same.
    No prejudice to the rights of taxpayers resulted from the fact that the sewer had been partly constructed at the time of the validating proceedings.
    3. Same — Reassessment.
    A clause in the city charter that whenever any special assessment shall in the opinion of the common council be invalid by reason of any irregularity or informality in the proceedings, or if any court of competent jurisdiction shall adjudge such assessments to be illegal, the council shall have power to cause a new assessment to he made, is not open to the interpretation that the illegality to be found by the court must be an irregularity or informality and not a jurisdictional defect.
    4. Same.
    A failure to state in the resolution of the common council that the proceedings were for the purpose of reassessing an invalid tax does not affect the tax, when reference is clearly made to the former proceedings.
    5. Same.
    A decrease in the proportion assessed against property owners is not a proper ground of complaint for a taxpayer.
    6. Same.
    Minor changes concerning the plans and specifications do not warrant the injunction and other relief prayed.
    Appeal from Muskegon; Sessions, J.
    Submitted May 5, 1909.
    (Docket No. 82.)
    Decided July 6, 1909.
    Bill by the Thayer Lumber Company and the Wood Beal Estate Company against the city of Muskegon, the common council of said city, and the board of assessors of Special Sewer District No. 7, to set aside proceedings for the construction of certain sewers. From a decree for complainants, defendants appeal.
    Beversed, and bill dismissed.

      Nims, Hoyt, Erwin & Vanderwerp, for complainants.

      James E. Sullivan and William Carpenter, for defendants.
   Brooke, J.

This case is a sequel to the case of Thayer Lumber Co. v. City of Muskegon, 152 Mich. 59 (115 N. W. 957). In 1906 the council of the city of Muskegon decided to build an extensive system of sewers in what was afterwards denominated “ Special Sewer District No. 7.” This district comprises a large and thickly populated area of the city. The council adopted plans, plats, specifications, and estimates for a system in this district, and passed resolutions designed to describe them and to form the sewer district, and to let the contract for the construction of the sewer, and the work was partially performed thereunder. On March 18, 1907, the proceedings had reached the stage that a resolution was adopted fixing the amount to be levied by special assessment, and ordering that it be levied on the district named in the resolution and appointed the board of assessors. A day was fixed for hearing objections to the same. Before the arrival of that date, the Thayer Lumber Company, one of the complainants in this suit, filed its bill of complaint in the circuit court to enjoin the confirmation of the roll and to restrain the city from levying any assessment on its lands, for the reason that the council had not followed the charter provisions, and that the assessment roll as reported by the council was therefore void. The circuit court rendered a decree holding the assessment void because of defects in the resolution adopted October 8, 1906, and of corresponding defects in the notice given by the council of the meeting to be held November 5, 1906, to hear objections. That decree was affirmed in this court. See Thayer Lumber Co. v. City of Muskegon, supra. On the 28th day of January, 1907, a contract had been entered into between the city and William R. Jones for the construction of the various sewers in District No. 7, for the sum of $48,684.64, and many of the sewers in said district had by said contractor been constructed before the determination of the case in this court.

Section 15, tit. 11, of the charter of the city of Muskegon, is as follows:

Whenever any special assessment shall, in the opinion of the council, be invalid by reason of any irregularity or informality in the proceedings, or if any court of competent jurisdiction shall adjudge such assessment to be illegal, the council shall, whether the improvement has been made or not, or whether any part of the assessments have been paid or not, have power to cause a new assessment to be made, for the same purpose for which the former assessment was made. All proceedings on such reassessment and for the collection thereof shall be conducted in the same manner as provided for the original assessment. Whenever any sum or any part thereof, levied upon any premises, in the assessment so set aside has been paid, and not refunded, the payment so made shall be applied upon the reassessment, and the reassessment shall to that extent be deemed satisfied.” Act No. 344, Local Acts 1901.

On May 18, 1908, the council, acting under the foregoing provision, passed the following resolution:

“Resolved, that the following lands be, and they are hereby constituted, a special sewer district to be known and described as Special Sewer District No. 7. The lands constituting said special sewer district are described as follows: * * *
“It is further resolved, that the construction within said district of the sewers hereinafter mentioned and described, for drainage and sanitary purposes, is a necessary public improvement, and this council determines to make the same and that cost and expense thereof shall be defrayed in the following manner, viz., fifty per cent, of the cost and expense shall be paid from the general sewer fund of said city, and the remainder of such cost and expense shall be'defrayed by special assessment on all the taxable lands and premises included within the said district in proportion to the estimated benefits resulting to each parcel respectively from the construction of said sewers.
“ It is further resolved, that the estimates of the cost of said sewers, and the plats and diagrams of said district, prepared and revised'by J. H. Blomshield, civil engineer, heretofore adopted by the council of the city of Muskegon, and by its authority duly filed with the city recorder on the 8th day of October,' 1906, be and they are hereby modified in the following particulars: (Modifications follow.)
“The said sewers are the same that are covered by a contract heretofore made with William R. Jones and have been partially constructed by him. The route, location, grade and dimensions of all said sewers are shown by the plats and diagrams herein approved and adopted, and in case there shall be any variance between the description thereof in this resolution and the plats and diagrams, the plats and diagrams shall control.
“It is further resolved, that the recorder give notice by publication for at least two successive weeks in the Muskegon News, the official newspaper of said city of Muskegon, of the proposed construction of said sewers, and that the plats and diagrams and estimates of the cost thereof may be found for examination in the office of the city recorder, and that the council will meet in the council room in the said city of Muskegon on the fifth day of June, 1908, at eight o’clock in the afternoon, to consider suggestions and objections with respect to said sewers and to the levying of a special assessment. ”

On June 5th, 1908, the council met at the time and place mentioned in the notice and adopted the following resolution:

“Whereas, the council of the city of Muskegon did, on the 18th day of May, 1908, by resolution duly adopted, appoint the fifth day of June, 1908, at eight o’clock in the afternoon, as the time when, and the council room in the city of Muskegon as the place where, the council would meet for the purpose of considering suggestions and objections to the construction of sewers mentioned and set forth in said resolution and to consider objections to the levying of a special assessment therefor on the lands embraced in the sewer district created by said resolution and designated Special Sewer District No. 7.
“And whereas, it appears by due proof now before this council that notice of said hearing has been duly given as required by law, and full consideration and hearing of all objections to the construction of said sewers and to the levying of a special assessment on the said special sewer district, to defray the cost and expense thereof, as aforesaid, having been had, and the owners of more than one-half of the property to be assessed therefor not having objected in writing thereto:
“ Therefore, be it resolved, that the construction of said sewers as determined in said resolution be, and the same is hereby, ordered.”

Thereupon the complainants herein filed their bill of complaint praying for an injunction against the defendants restraining them from enforcing said special assessment. Upon a hearing the injunction was granted, from which decree the defendants appeal.

It is the claim of the complainants that the proceedings of May 18, 1908, and those following that date, by the common council cannot be sustained as a valid reassessment or as a new and original assessment. The learned circuit judge held in part as follows:

“The resolution of May 18, 1908, contains no provision for plats and diagrams of the sewer district, nor for an estimate of the cost of the sewers except by reference to plats, diagrams, and estimates adopted by the council and filed on the 8th day of October, 1906. The resolution of October 8,1906, and the notice, of the hearing of objections given thereunder were particular objects of attack in the former suit and were specifically decreed by the courts to be void and of no effect. Therefore, no part of that resolution can be used for any purpose in the new proceedings, and the plats, diagrams, and estimates which the council then attempted to adopt cannot form any basis for the subsequent actions of the defendants. The mandatory provision of the city charter requiring, plats, diagrams, and estimates of cost to be made and filed ‘ before ordering any public improvement ’ and ‘ before proceeding to the construction of any sewer,’ have not been obeyed. * * * The validity and binding force of the contract for the construction of these sewers, as between the city of Muskegon and the contractor, cannot and need not be determined in this suit, and no opinion is herein expressed upon that subject. But, as between these parties and so far as it forms the basis of levying a special assessment upon the property of these complainants, such contract was an essential and integral part of the former proceedings of the defendants, and to that extent it was declared void by the decree of this court and the Supreme Court. So far as this case is concerned, those former proceedings are dead, and it is beyond the power of the defendants to put new life into them or any of them.”

In the foregoing conclusions wé think the learned circuit judge was in error. An examination of the opinion in Thayer Lumber Co. v. City of Muskegon, supra, shows that,

“In accordance with°the views herein expressed a decree will be made in favor of the complainant and against the defendants, setting aside and holding for naught all of the proceedings heretofore taken, and restraining any further proceedings to levy the special assessment in question upon and against the lands of complainant.”

This conclusion was reached by this court apparently (1) because the resolution adopted by the council of the city of Muskegon on October 8, 1906, did not designate the district to be covered by said Special Sewer District No. 7; and (2) because the published notice of the meeting of the council of November 5, 1906, to consider objections to the proposed improvement was not sufficient. We are unable to discover where any question has heretofore been raised affecting the plats, diagrams, and estimates or the determination of necessity for the sewer. Nor do we think they are subject to any attack.

Now, referring to the resolution of May 18th:

(1) It designates the lands to be assessed. '“Section 3, tit. 11, of the city charter.
(2) It determines the proposed sewer to be a necessary public improvement. Section 3, tit. 11.
(3) It refers to estimates, plats, and diagrams of the work and locality to be improved, adopts them, and orders them to be filed with the city recorder. Section 4, tit. 11.
(4) It determines what portion of the expense shall be borne by special assessment, and what shall be borne by the city. Section 3, tit. 11.
(5) It provides the method' of making the said assessment. Section 6, tit. 13.
(6) It provides:
“The said sewers are the same that are covered by a contract heretofore made with William R. Jones and have been partially constructed by him. The route, location, grade, and dimensions of all said sewers are shown by the plats and diagrams herein approved and adopted.” Section 7, tit. 13.
(7) It provides for notice, which was given, in accordance with section 7, tit. 13; and thereafter, on June 6th, by the resolution above quoted, ordered the sewer to be built.

We are unable to see how the rights of the complainants were in any wise prejudiced by the fact that the sewer had partially been constructed under a contract with Jones prior to this time. See Brevoort v. City of Detroit, 24 Mich. 322. At the time and place set by the .council for the hearing of objections the property owners in the special district could have compelled the council to forego making the improvement at their expense if the owners of more than one-half of the property to be assessed therefor should object in writing thereto (section 4, tit. 11). Had this course been taken no special assessment could have been made, and the cost of the sewers already constructed must have been borne by the city at large, if the contract theretofore existing between it and Jones were valid.

Counsel for complainants lay much stress upon the charter provisions with reference to reassessments, which are as follows:

“ Whenever any special assessment shall, in the opinion of the council, be invalid by reason of any irregularity or informality in the proceedings, or if any court of competent jurisdiction shall adjudge such assessment to be illegal, the council shall * * * have power to cause a new assessment to be made.” Section 15, tit. 11.

It is the claim of counsel for the complainants that the words “ by reason of any irregularity or informality in the proceedings ” should be construed as qualifying the subsequent portion of the phrase “ or if any court of competent jurisdiction shall adjudge such assessment to be illegal.” This construction would make the last provision read:

“If any court of competent jurisdiction shall adjudge such assessment to be illegal by reason of any irregularity or informality in the proceedings.”

This construction is clearly unwarranted and would exclude a reassessment, if the illegality of the assessment rested upon jurisdictional grounds. The use of the disjunctive “ or ” shows that there are two distinct classes of cases in which reassessment may be had: First, where, in the opinion of the council, the assessment is invalid by reason of any irregularity or informality in the proceedings; and, second, where any court of competent jurisdiction shall adjudge such assessment to be illegal. In the last case it is not necessary to add the words “for any reason;” the language itself is unqualified.

The assessment in the case at bar was in the former adjudication held to be illegal. It was therefore a proper case for reassessment. See Schintgen v. City of La Crosse, 117 Wis. 158 (94 N. W. 84). We do not think that the failure of the council to set up in its resolution the fact that it was a reassessment is fatal. It did, by reference in the resolution to the former plans and specifications and the contract with Jones, clearly indicate that by the proceedings then undertaken it sought to make valid, by due notice and proper description, the assessment which had by this court been declared invalid. The fact that by the terms of the resolution the special assessment was reduced from 75 per cent, to 50 per cent, is a matter of no consequence, and is one of which these complainants cannot in any event complain. The changes made in the resolution as to the plans and specifications were of small consequence compared with the magnitude of the whole work, and should not be considered.

As the case is now presented to this court, the determination of this court in the case of Townsend v. City of Manistee, 88 Mich. 408 (50 N. W. 321), is controlling. See, also, French v. Common Council of Lansing, 30 Mich. 378; Smith v. City of Detroit, 120 Mich. 572 (79 N. W. 808); Corliss v. Village of Highland Park, 132 Mich. 152, 159 (93 N. W. 254, 610, 95 N. W. 416).

The decree of the court below will be reversed, and the bill dismissed.

Blair, C. J., and Montgomery, Hooker, and Mc-Alvay, JJ., concurred.


author: Hooker, J.

text:
    GORHAM v. JOHNSON.
    1. Certiorari — Appeal and Error — Findings op Circuit Judge.
    The findings of fact made by the circuit judge on certiorari, to review the action of a highway commissioner in laying out a highway, are disregarded on a review in the Supreme Court, the return of the commissioner to the writ being conclusive of the facts.
    2. Highways — Certiorari—Establishment.
    The report of a highway commissioner establishing a highway is not deficient for failing to give the date of receiving the petition filed therefor, if the dates sufficiently appear from the petition itself and the notice served. 2 Comp. Laws, § 4036 et seq.

      3. Same — Notice op Proceedings.
    A notice to landowners interested, of proceedings to lay out a highway, is sufficient although it omits to describe the same as a public highway, if no one was misled.
    4. Same — Service.
    Where all the land to be taken belonged to persons residing on the property, and notice was personally served on appellant, it was unnecessary to post the notices required by 2 Comp. Laws, § 4038; and the return to the writ of certiorari containing a proof of personal service within the proper time, complies with the requirement of the statute.
    5. Same — Determination.
    The meeting for a determination of the question of necessity meets the requirements although no minutes were taken, no report of the discussion was made, and the return did not expressly state that the commissioner ascertained and determined the necessity and damages, where it appears that the commissioner proceeded thereupon to determine the question of necessity and the amount of compensation.
    6. Same — Statutes.
    The signature of the highway commissioner to the record and return containing the map and survey is a signature of the map and survey within 3 Oomp. Laws, § 4041.
    7. Same — Clerical Errors,
    The clerical error of omitting the word “feet” in the description, corrected by the survey and other papers, is not fatal.
    Case made from Kent; Perkins, J.
    Submitted May 4, 1909.
    (Docket No. 85.)
    Decided July 6, 1909.
    Certiorari by George W. Gorham to review the action of Thomas C. Johnson, highway commissioner, in laying out a highway. A judgment for defendant is reviewed by plaintiff on a case made.
    Affirmed.

      William B. Brown, for appellant.

      Smedley & Corwin, for appellee.
   Hooker, J.

The plaintiff in error, an owner of premises sought to be taken for a highway, took the proceedings of the commissioner to the circuit court by certiorari, and was defeated. The cause is before us on case made, containing the affidavit for certiorari, the return to the writ by the commissioner — which includes a certified copy of this record and return to the town clerk — and statement of the commissioner’s doings in the matter, and a finding of fact and law by the circuit judge. We are asked to reverse the judgment of the circuit judge upon 20 assignments of error to the findings of the circuit judge. In dealing with this case we must disregard the finding of fact, and dispose of it on the return, which must be taken as true. There are 14 allegations of error in the affidavit for certiorari. Most of these are technical in their nature, and are predicated on the record and return, which counsel claims fails to show compliance with the requirements of the statute in essential particulars.

Petition. The petition is included in the report. It seems to be regular in form and substance. It is urged that the report fails to show when it was received by the commissioner, but we think that it sufficiently appears from its own date and the recitals and date of the notice which accompany the record and return, together with the record and return itself.

Notice. The notice is criticised on several grounds: (a) That it did not state that the application was to lay out a public highway; (&) that the record and return fails to show that the notice was posted in any public place in the township; (c) that the record and return hoes not show that proof of service was made, and was before the commissioner at the time his action was taken. Plaintiff’s affidavit shows and it is a fact, shown by the record and return, that the application prayed the establishment of a “public highway.” Section 4038, 2 Comp. Laws, requires service of notice of the application, and we are of the opinion that the omission of the word “public” was not fatal in the case. It was personally served, and there is no claim that plaintiff did not know the object of the application. The return to the writ shows a subsequent talk with the commissioner, and a refusal to attend the meeting by the plaintiff. The notice could apply to no other than a public way, for highways are public ways as contradistinguished from private ways. It affirmatively appears that it was unnecessary to post any copies of this notice. See 2 Comp. Laws, § 4038. The record and return contains a copy of the notice dated February 4th-, and proof by the affidavit of the commissioner, sworn to on February 10th, that it was properly served on February 4th. It does not state these facts, but by making them a part of the record and return, the same sufficiently appears.

Meeting. It is contended that the record and return does not show that the commissioner held a meeting at the time and place appointed. Of this it is enough to say that plaintiff’s own affidavit states that he did, and the record and return states that he did. If it were true that this omitted to so state, the affidavit shows it, and it is apparent that there is no injury to the plaintiff through want of an opportunity to be heard.

Proceedings at meeting. The record and return does not state what took place at the meeting prior to the commissioner’s proceeding to view the premises. The affidavit for certiorari and the return to the writ do, however; the former stating that the “commissioner and others were there assembled,” and that “ there was talk and discussion between them regarding the laying out of the proposed highway,” after which “they dispersed.” We are not cited to a statute requiring more, or providing that any minutes of what was said, or report of the discussion, should be made. Neither was there any way of compelling those assembled to accompany the commissioner to view the premises; and, as the plaintiff refused to attend, and Holt was willing to have the highway established, and land of no other person was required, there was no inducement for others to go. It does not appear that any adjournment was asked or necessary. The record and return indicates that the commissioner immediately proceeded to view the premises, and that on or before the next day he determined that the said highway (i. e., a public highway, as set up in the application) was necessary, and that it be thereby laid out. The same appears affirmatively from the return to the writ.

Record and return. The commissioner filed his record and return on the 18th day of February, and it is dated on that day. The law required that it be filed within five days. Counsel argue, from the fact that it bears date February 18th, that we must assume that the determination was not made on the 17th. We are of the opinion that such is not a necessary inference, and, moreover, that the proceedings were not rendered invalid, if he did not make such determination on the 17th, under the facts appearing in this record. The return to the writ shows that he did. After meeting at the regular time and place, and discussing the subject with all who cared to be heard, the commissioner proceeded to view the premises, and determined the necessity, the land required, appraised the same, fixing the damages, and established the highway, filing his report the next day. He did not state expressly in his minutes that he “ascertained and determined” these things, but it sufficiently appears that he did so. It is said that the map and survey were not signed by the commissioner. The signature to the record and return was all that was required; and, although the report does not mention these documents, they were a part of the return, and were filed and recorded with the same, and all should be treated as signed by the commissioner, within the meaning of the statute (2 Comp. Laws, § 4041). See Page v. Boehmer, 154 Mich. 693 (118 N. W. 602).

It is claimed that the record and return fails to show that the damages were assessed at the value of the land taken for farming purposes; that it does not show that the highway was not paralleled within a half mile by a pre-existing highway; that it contains a defective description, in that the word “feet” is omitted after the figures “ 300;” and that it affirmatively shows the award of excessive damages. The return of the commissioner to the writ of certiorari shows that the damages were based upon the farm value of the land taken, that the road was not laid out parallel to another highway within a half mile, and that the damages awarded were $101, but that by arrangement $1 was receipted for by Holt, who claimed no damage, and that the sum appropriated was only |100. This return must be taken as true. The provision of section 4041 as to value was changed by Act No. 142, Pub. Acts 1901, and there is therefore no importance to the question of a parallel road. There was an error in the description in one part of the record and return, but it is clearly clerical, and is corrected by the survey and other papers.

"We find no substantial error in the proceedings, and the proceedings of the commissioner are affirmed, with costs.

Blair, C. J., and Montgomery, MoAlyay, and Brooke, JJ., concurred.


text:
    LYLE v. CITY OF DETROIT.
    Negligence — Municipal Corporations — Variance.
    A notice under section 279 of the Detroit city charter, showing that plaintiff sustained personal injuries by a fall on a defective walk, and stating that her right knee was hurt, and her nervous system was injured by the shaking up occasioned at the time of her fall, would not warrant an amendment to the declaration claiming an injury in the left knee, where it counted on an injury to the right knee; but would authorize an amendment adding a claim for the resultant injury to her nervous system.
    Error to Wayne; Rohnert, J.
    Submitted May 3, 1909.
    (Docket No. 60.)
    Decided July 6, 1909.
    Case by Minnie Lyle against the city of Detroit for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Edward Donnelly and William Van Dyke, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellee.
   Hooker, J.

The plaintiff’s declaration alleges that she was injured on April 22, 1905, through a fall upon defendant’s sidewalk, at a designated point upon Jay street, and that it was caused by defects described. The nature of her injuries were described in the declaration as follows:

“The plaintiff then and there became and was greatly hurt, out, and bruised and wounded in and about her left knee, and became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, three months, the next following, during all of which time the plaintiff was deprived of social enjoyment with her friends, and suffered great bodily pain and mental anguish, and was obliged to undergo medical and surgical treatment. And plaintiff avers that she has continued up to the present time to suffer bodily pain, though in a less degree than during the three months next following the date of the accident aforesaid. And plaintiff avers that she has continually since said ■ occurrence of said accident been hindered and prevented from performing and transacting her lawful and customary business and occupation, to wit, the business and occupation of a dressmaker and seamstress, whereby she lost great gains and profits which would otherwise have accrued to and been earned by her. And by reason of the premises also the plaintiff was put to the expense, cost, and charges in the whole, amounting to a large sum, to wit, $200, in procuring medicines and medical attendance, nursing and care in and about endeavoring to be cured of the said wounds, sickness, lameness, and disorder so occasioned as aforesaid. And plaintiff avers that by reason of the said negligent acts of the defendant, she, the plaintiff, has been permanently injured, and will suffer in the future great bodily pain and great inconvenience and annoyance in the following particulars: Her left knee has been permanently weakened, and the strength thereof impaired to such a degree that she has been deprived of the full and free use thereof in walking and standing, and said knee has become permanently stiff and sore, and by reason thereof plaintiff has become permanently incapacitated from operating the machine customarily used in the business of a dressmaker and seamstress.”

The statute (Detroit Charter [1904], § 279) provides:

“No action shall be brought against said city, nor any of its boards, commissioners or officers for any negligent injury unless it be commenced within one year from the time when the injury was received nor unless notice shall be given in writing within three months from the time of such injury to the head of the law department or to his chief assistant of the time, place and cause of such injury, and of the nature thereof.”

The cause came on for trial on October 9, 1907, when plaintiff’s counsel asked leave to amend his declaration by adding the following:

“By reason of the premises the plaintiff received a severe shock to the nervous system, and has since the date of the injury, and because of it, suffered great and severe headache, and will continue to suffer so for the rest of her life.”

The motion was denied. The cause proceeded, and counsel having proved her fall and its cause, and that her left knee was hurt, objection was made on the part of the defendant that the notice served under the statute stated the injury to have been to the right knee. The court excluded all testimony of injury to the left knee. The notice to the city attorney is as follows:

“Timothy Tarsney, Esq.,
‘ ‘ Corporation Counsel of the City of Detroit, “Detroit, Mich.
“Sir: Please take notice that on Saturday, the 22d day of April, A. D. 1905, Miss Minnie Lyle, of 315 New Orleans street, city of Detroit, was injured on the north side of Jay street between Gratiot avenue and Orleans street and about 20 or 30 feet from the corner of Gratiot avenue and Jay street, at about the hour of 10:50 o’clock sun time, in the morning; said injuries being caused by reason of the defective sidewalk; the boards of said sidewalk being in a broken and rotten condition, which caused Miss Minnie Lyle to fall heavily to said sidewalk, and she then and there sustained the following injuries, to wit: Her right knee was severely bruised and the blood vessels and ligaments of said knee were ruptured, and she received a severe shaking up, which resulted in injury to her nervous system.
“You will further take notice that said Miss Minnie Lyle intends to seek legal redress against the city of Detroit for the injuries she sustained at the time and in the manner aforesaid.
“ Wm. Yak Dyke.
“Edward Donnelly.”

Her petition to the council was substantially the same. Counsel renewed his application to amend the declaration, and also asked to be allowed to prove:

“That she has suffered in this accident an injury to her left knee, and as a consequence of that injury that she was severely shaken up, and that it was a severe shock to her nervous system, and that since the accident she has suffered pain and injury because of this nervous condition brought on by the shock. In addition to that she has suffered pain which came directly from the fall, notice of which fall was given to the city, and the location with regards to it as set up in the declaration. The court seems to be of the opinion that it is not proper.
The Court: You proposed to show an injury to the left knee, and not to the right knee. You propose to show a nervous shock.
“Mr. Donnelly: As a result of this fall, according to the declaration and the great pain she has suffered since That time, and at that time, and in the future as well.”

This was denied, and the learned circuit judge directed a verdict for the defendant. The charge was interrupted by an offer on the part of plaintiff’s counsel to show that the right knee was injured as well as the left, whereupon the court stated that no such proof had been offered. Counsel had previously answered, “That is all,” in response to the court’s question, “ Is that all ?” referring to the testimony. The plaintiff has appealed.

In an opinion denying a motion for new trial the following reasons for the denial were stated, viz.: The proposed amendment would have added a new cause of action a year after it accrued, and the statute of limitations had run against it. Notice of an injury to a right knee precluded proof of injury to the left. Inasmuch as the plaintiff’s notice of physical injury was limited to the right knee, and her declaration mentioned only an injury to the left knee, it was held that she could make no proof of any injury, and as a consequence there could be no recovery. We have, then, a case where the notice showed that she had a fall, etc.; that her right knee was bruised, and its ligaments were ruptured, and she received a severe shaking up, which resulted in an injury to her nervous system. The declaration counted upon the other knee, and it did not count upon a shaking up which resulted in an injury to her nervous system.

Under the rule followed in Ridgeway v. City of Escanaba, 154 Mich. 68 (117 N. W. 550), proof of a physical wound or hurt could not be admitted for want of a proper notice, and the allegation of the declaration that she became sick, sore, lame, and disordered was inadmissible for the same reason. The only theory upon which a recovery could have been had under the notice was that she fell, and suffered a severe shaking up, which resulted in injury to her nervous system; and, as already stated, this was not alleged in the declaration. Had the declaration alleged the fall and shaking up, and that in consequence she suffered an injury to her nervous system, it would have supported proof of such an injury, and we are of the opinion that such an amendment would not have been the introduction of a new cause of action. Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468). Counsel asked to make an amendment, as already stated. While a technical construction of what occurred might justify us in saying that the amendment offered did not exactly accord with the notice, we are of the opinion that, had the allegation appeared in the declaration in the first instance, we should say that it would have supported the proof offered of a shaking up by the fall and resultant injury to her nervous system.

Apparently the application was refused upon another and untenable ground; and, assuming, as we think that we should, that the learned circuit judge would have allowed the amendment but for his opinion that it would have introduced a new cause of action, we feel constrained to reverse the judgment and grant a new trial.

Montgomery, Ostrander, McAlvay, and Brooke, JJ., concurred.