Whisler v. Drain Commissioner

Cooley, J. The writ of certiorari in this casé is sued out to review the action of the drain commissioner in laying out and establishing a drain under the act “to provide for the draining of swamps, marshes and other low lands,” approved March 22, 1869, as amended by act No. 169 of 1871. General Laws of 1871, Vol. 1, p. 257. Among the requirements of the act last mentioned is one that the commissioner after making personal examination of the lands proposed to be drained, shall “try to obtain a release of the right of way and other damages from every person through whose land such drain or drains are to pass.” This effort was not made in this case. It appears from the report of the commissioner that he had tried to obtain such a release some three months before the application in this case was made, but that effort had no connection with this case, and cannot avail. It could have had no connection with this case, because no such case was then in existence. As the effort to obtain a release from the owners of lands is a condition precedent to any further step in the case, the proceedings which took place without it were [592] invalid. Arnold v. Decatur 29 Mich., 77; Chicago etc. R. R. Co. v. Sanford, 23 Mich., 418. The proceedings must be quashed. The other Justices concurred.