Solder v. Township Board

Morse, J. The commissioner of highways of the township of Brown, in the county of Manistee, proceeded to lay out a highway through the lands of the plaintiff in error. The commissioner’s return of his proceedings fails to show that he met those interested “ at the house of Andrew Collins,” the place specified in his notice, but sets forth that “at the time mentioned in said notice” he proceeded “to view the premises.” It appears, however, from the affidavit of the plaintiff in error, upon which' the writ of certiorari was granted, that, “at the time and place specified” in said notice, the plaintiff in error and other persons appeared and met the commissioner, for the purpose of being heard in opposition to the proceedings to establish such highway. The plaintiff, therefore, cannot complain of this omission in the commissioner’s return. The commissioner, by Boiler’s own showitig, did meet at the time and place designated in the notice, and he was there at the meeting. He complains further that the commissioner would not give him or his witnesses a hearing, but arbitrarily proceed*, d to lay out the highway, awarding him no damages, and that the commissioner’s report does not show that any damages were claimed. He thereupon appealed to the township [424] board, who decided against him, as he claims, by dismissing his appeal arbitrarily, and without giving him a hearing, or swearing any witnesses, and assessing costs against him. In the circuit court the judgment of the township board was annulled, and Soller awarded costs against the board. The board bring the matter into this Court upon writ of error. It appears from the return of the board, which also contains a transcript of the record of their proceedings, that Soller appeared before the board, and through his attorney, R. W. Smith, asked that the proceedings of the highway commissioner be quashed and held for naught, for the reason that such commissioner had not, as shown by his report, taken all the steps required by the statute to be taken in the premises, and because the report did not show that the parties affected by the proposed highway had any opportunity to be heard; that the proposed highway is within one-half mile of and parallel to an existing highway; and that the report of the commissioner does not show any damages allowed the owner of land proposed to be taken. The return further shows that he did not claim any damages before the board, but, when asked by them “ whether his appeal was a question of damages or not,” answered: “No, we want these proceedings of the commissioner quashed.” The township board then decided that the proceedings of the commissioner were regular, and that, inasmuch as a highway running diagonally through the same premises of plaintiff in error had been taken up, the existence of which would have been of more damage to him than the proposed highway, therefore there was no necessity for the commissioner to state in his report that any damages had been allowed. It does not appear anywhere in the record that Soller offered to have any witnesses examined before the board upon the question of damages, but it is satisfactorily shown that [425] he relied upon irregularities in the action of the commissioner, and that he was heard thereon. The decision of the board was Anal and conclusive. How. Stat. §§ 1303, 1303. There are no peculiar or exceptional circumstances indicating that any special grievance will result from the denial •of the writ in this ease. He chose to take advantage of his statutory remedy as to the action of the commissioner, and must be content with the result thereof. Burt v. Commissioners, 33 Mich. 190; Brody v. Tp. Board of Penn, Id. 272; Prescott v. Patterson, 44 Id. 525. The writ of certiorari in this case must be quashed, and the judgment of the circuit corrrt for the county of Manistee reversed, vacated, and annulled, with costs of both courts. Sherwood and Champlin, JJ., concurred. Campbell, C. J., did not sit.