Hauser v. Burbank

Montgomery, J. This case presents the same questions as are found in No. 11 of the April term, of the same title (Hauser v. Burbank, ante, 463); and one additional question is raised, which is that the names of two owners of land traversed by the proposed drain were omitted from the application to the probate court. The return to the certiorari shows that the survey was made at a time of high water, and that, as the thread of the stream was then located, the line of the proposed ditch did not traverse the land of these parties. The commissioner returns that he does not know that the lands of the parties were traversed, but that a release has been given him by the adjoining owner of a sufficient quantity of land to accommodate the — 643 — entire ditch and the deposits of earth therefrom. The parties who are alleged to be owners of the land traversed are not complaining, and it is apparent that a right of way has been acquired substantially on the line surveyed. We think the plaintiff in certiorari is not therefore in position to complain. The judgment of the circuit court is reversed, with costs of both courts to defendant in certiorari. The other Justices concurred.-