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LAYING OUT HIGHWAYS: An order of a highway commissioner to lay out a highway beginning at a certain point "running nearly in a northwesterly direction near where the travel is now seeking to get the best route' to another specific point is void for the uncertainty in the description.-Blodgett vi Whaley, 47 / 469. Proceedings to open a street across the land of a railroad company were held invalid where the company was not named in the proceedings and did not appear, even though damages were awarded to it for the land taken. --D. M. & T. R. R. Co. v. Detroit, 49/47. Void proceedings by a commissioner, discontinuing a highway are not a bar to regular ones taken to widen it to the statutory width.-Weber v. Stagray, 75 / 32. Proceedings to discontinue a highway and lay out a new one and build a bridge cannot be united in one proceeding.–Cox v. Com'r of Highways, 83/ 193 ; nor proceedings to open one highway and discontinue another be combined. Only one proceeding can be taken at a time and every road must be opened and closed on its own merits.Shue v. Highway Com'r, 41 / 638. A railroad company cannot claim as damages for the crossing of its tracks and sidetracks by a street the full value of the parcels of land crossed.—Grand Rapids v. Bennett, 106 / 528. But are entitled as a part of damages to cost of erecting and maintaining safety gates, or towers, or employment of flagmen.-Id. Also expense of cattle guards, fencing and other outlay to complete the approach, besides the cost of maintaining them.-C. & G. T. Ř. R. Co. v. Hough, 61 / 507. A statute imposing this expense upon the railroad company is in conflict with the constitutional provisions, forbidding the taking of private property without “just compensation.”—ID. Where a highway is laid out parallel to and within one-half mile of an existing highway. the damages awarded to the owner of lands taken cannot be estimated at less than their value for general farming purposes, unless by his assent, which fact must appear by the return of the commissioner.--Truax v. Sterling, 74 / 160. No statute or rule of law determines that, before a public highway can be laid out it must have certain and definite termini in other public highways.-Rogren v. Corwin, 181 / 53.

(11) § 4293. Sec. 6. Within five days after final deter- Commissionmination upon any application for laying out, altering or discontinuing any highway, the commissioner shall file a full record and return of his doings in the premises with the township clerk. Such record, in addition to the minutes of the doings of the commissioner and his final determination, shall contain the copy of the application and notice, with the proof of service as provided in section four of this chapter, and, except in case of the discontinuance of a highway, the record shall also embrace a plat or map of the road, with the minutes of the survey signed by the surveyor, and the commissioner's award of damages, if any, and to whom payable, if known, all of which shall be signed by the commissioner and recorded by the township clerk.

RECORD AND RETURN: The record of proceedings to establish and lay out, or discontinue a highway must show that all the steps necessary to the validity of the proceedings were taken.-People v. Scio, 3 / 121 ; Mead v. Higb Com'rs, 16 / 63; Van Auken v. High. Com'rs, 27 / 414 ; Schroeder v. Village of Onekama, 95 / 25. And a recital to that effect in the commissioner's return is not sufficient.-Id. The return must show (a) the date of the application, (b) the names of the land owners and others entitled to notice, (c) that the damage allowed such owners, respectively, was the value of the land for farming purposes, (d) an adjudication of a public necessity for laying out the road and for taking the land affected thereby for such purposes.-Cowing v. Ripley, 76 / 65. The proceedings must show affirmatively the requirements of the statute, and the jurisdiction of the court.-Price v. Stagray, 68 / 17. The failure to show in the return that the statutory notice was served is fatal to the proceedings.-Van Auken v. High. Com'rs, 27 / 415 ; Pegler v. High Com’rs, 34 | 359; Moetter v. High. Com'rs, 39 / 726. And a certificate that they had “given notice according to law" is not sufficient. - Van Auken v. High. Com'rs, 27 / 415. A showing of notice of a meeting to be held April 25 will not uphold a meeting held May 11, in the absence of any showing of notice of such latter meeting, or that it was held as an adjourned meeting.–Pegler v. High. Com'rs, 34 / 359. The failure to show that notice was served upon one of the occupants of the land affected is fatal to the validity of the proceedings.-Wilson v. Township Board, 87 / 240. The proceedings are defective if the report does not show that notice of the application therefor and of a hearing upon it had been given to the parties interested.-Moetter v. High Com'r, 39 / 726. And the report must show when the hearing took place.-Id. The return must show affirmatively that the commissioner viewed the premises, ascertained and determined the necessity of his action.-Truax v. Sterling, 74 / 160 ; Cox v. High. Com'r, 83 / 193; Furman v. Furman, 86 / 391. Where the commissioner has gone out of office it is incompetent for them to make any addition or amendment to a return of their proceedings already made.-Mead v. High. Com'r, 16 / 63. A commissioner has no

authority to determine the facts contained in his return. They must be shown to have been proven before a jury.--Ayres v. Richards, 38 / 214 ; 41 / 680. See Page v. Boehmer, 154 / 693. 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.-Gorham v. Johnson, 157 / 433.

(12) § 4294. Sec. 7. Any person being a freeholder, or a holder of lands by homestead right within the township, who may conceive himself aggrieved by the determination of a commissioner in laying out, altering or discontinuing any highway, or in his award of damages, or in his refusal to lay out, alter or discontinue any highway, may, within ten days after such determination or refusal, appeal therefrom to the township board. Every such appeal shall be in writing, signed by the appellant and addressed to the township board and filed with the township clerk, and there shall be deposited with the township clerk the sum of twenty-five dollars to cover the cost of such appeal, and the said appeal fee shall be deposited in the general fund of the township unless said appeal shall be sustained, and if said appeal be sustained, the appeal fee so deposited shall be returned to the person making the appeal, and the township clerk shall, as soon as may be after the time limited for taking appeals shall have expired, call a meeting of the township board to consider such appeal. Such clerk shall, at least ten days before the time appointed for such meeting, cause notice in writing of the time and place of such meeting to be served upon the appellant and the commissioner, or left at their respective places of residence.

Appeal.

To be in writing.

Deposit.

Disposition of fee.

Meeting of board. Notice.

RIGHT OF APPEAL: A general appeal may be taken from the order of a commissioner of highways laying out a highway:--Brown v. Township Board, 87 / 240. No appeal lies to the township board from the refusal of a highway commissioner to lay out a highway.-Wilson v. Township Board, 87 / 240. The only persons who can seek a review of proceedings to discontinue a highway in whole or in part are the owners and occupants of lands through or adjoining which it is proposed to discontinue the road, which adjacency is confined to the part discontinued.—Kimball v. Homan, 74 / 699. A township, board has no power to review the action of a commissioner except on appeal. —Anderson v. LaGrange Township, 2 / 188. An appeal waives previous defects and irregularities.-Prescott v. Patterson, 44 7.526. Award of damages.-Campau v. LeBlanc, 127 / 180. Where the only grievance lies in the award of damages, the proper remedy is by appeal.-F. & P. M. R. Co. v. Norton, 64 / 249. Members of a board who decided that the highway was a public necessity are disqualified from hearing a second appeal by the same land owner from the decision of the highway commissioner re-establishing said highway, former proceedings having been quashed in the circuit court.--Locke v. High. Com'r, 107 / 631. Review of order dismissing appeal.-Hartz v. Wayne Circuit Judge, 164 / 231.

NOTICE OF APPEAL: Notice of an appeal to the township board from the order of the

highway commissioner is needful to confer jurisdiction to proceed. And: (1) Such notice cannot be shown by a mere recital in the final order of the board' to the effect that due notice had been given.—Tefft y. Hamtramck, 38 / 558. (2) Proceedings of a township board reversing an order extending a highway, were quashed for want of it. Id. (3) Without such notice a writ of certiorari to review proceedings of a highway commissioner will be dismissed with costs.Wilder v. Hubbell, 43 / 487; Sanger v. Twp. Board, 118 / 20. (4) Without such notice the board acquires no jurisdiction on appeal.--Tefft v. Hamtramck, 38 / 558; Prescott v. Patterson, 44 ! 325; Brazee v. Raymond, 59 / 548. A party who is not notified of the proceedings to establish a highway, can lose nothing by a failure to appeal, and where such proceedings are void, the owners of the land appropriated may treat them as such and bring trespass when their occupation is disturbed.—Names v. Com'r of High., 30 / 490. The fact of notice of a meeting of township boards to review the action of the commissioners is jurisdictional and must appear of record.-Prescott v. Patterson, 44 / 525.

(13) 4295. Sec. 8. The township board shall proceed Decision of at the time and place specified in the notice to hear the proof recorded, eto. and allegations of the parties, and may examine persons on oath in respect to the matter of such appeal. Such decision shall be reduced to writing and signed by the board making the same, and filed in the office of the township clerk, and, together with all other papers relating to such appeal, shall be recorded as part of the record of the road. No commissioner from whose determination an appeal has been taken, and who may be a member of the township board, shall act on such appeal. Any party or parties dissatisfied with the Appeal to

circuit court. determination of such township board, either as to the value of the property taken or as to the determination upon the necessity for laying out, altering or discontinuing a highway, when the amount involved or damages claimed exceeds the sum of three hundred dollars, may appeal therefrom to the circuit court for the county in which said land is situated, and a return may be compelled and the same proceedings shall be had thereupon, as near as may be, and with a like effect as in cases of appeal from judgments rendered before justices of the peace, and the costs thereon awarded and collected in the circuit court in the same manner. And for the purposes of such hearing in the circuit court and for the taxation of costs, the parties signing the application in the first instance, shall be considered and treated in all respects as the plaintiffs on such trial, and the parties opposing such application, either as to the amount found to be the value of the property, or as to the necessity for laying out, altering or discontinuing such highway, shall be considered and treated in all respects as the defendants on such trial; and on perfecting said appeal the proceedings from which said appeal is taken shall be stayed and no further steps therein shall be taken until the determination or dismissal of said appeal; and the said circuit court shall also Jurisdiction have full power and jurisdiction over said proceedings to hear and determine the same and render judgment therein, as if the said proceedings had been originally commenced before the said circuit court. And either party to said pro- Jury trial. ceedings on said appeal shall be entitled to have the issue in such proceedings tried by a jury, as in ordinary suits in said court. All appeals taken from the determination of Hearings. such township board to the circuit court, whether taken separately or collectively, shall be heard at the same time and before the same court and jury. The determination and Determina

tion. judgment rendered by said circuit court shall apply and be of equal force and effect as to each and all of said plaintiffs and as to each and all of said defendants as above defined, whether their appeals have been taken separately or collectively. This section shall apply to all appeals now pending or Appeals now hereafter to be taken, and in cases where separate appeals have been heretofore taken under act number one hundred

pending.

ninety-five of the public acts of nineteen hundred five to the circuit court from the determination of the township board as to the necessity for laying out, altering or discontinuing any highway, and decisions and determinations have been rendered on such separate appeals which are not in harmony with each other as to such necessity, then in all such cases the determination and judgment first rendered therein by such circuit court shall apply equally and be of full force and effect as to each and all of the plaintiffs and defendants as above defined, whether the defendants have taken their appeals separately or collectively, and the rights of each and all said parties shall be determined by and according to such first determination and judgment of the circuit court, subject to the right of appeal to the supreme court according to law. The duties prescribed to justices of the peace in cases of appeal from judgments rendered before justices of the peace, shall, in cases of appeal under this act, devolve upon and be performed by the township clerk: Provided, That in no event shall any costs be taxed against the township or the township board, nor against the parties signing the application for the laying out of any highway, except such party or parties as actually appeal or defend such appeal.

When duties
of justice
performed
by clerk.

Proviso, costs.

HEARING : A township board has no power to review the proceedings of the commissioner of highways in laying out and establishing a road except on appeal to them under the statute, nor to review proceedings of the appraisers, except 80 far as to see that they are not void for want of jurisdiction.-Anderson v. Twp. Bd., 2 / 187. The action of township boards on appeal from the highway commissioners cannot be sustained if it does not appear that the party injured by it had notice of their meeting, even though the return shows that it was held at his house.—Prescott v. Patterson, 44 / 525. A township board on an appeal from a highway commissioner cannot go beyond the grounds of the appeal and pass on other matters.--Tefft v. Hamtramck, 38/588. See Soller v. Township of Brown, 67 / 422; Weber v. Stagray, 75 / 35 ; Brown v. Twp. Bd., 109 / 557. A township board sitting to hear an appeal from the action of a highway commissioner în laying out a road has power to adjourn for any reasonable cause to a specified day.- Van Scoy, y. Essex, 38 / 615. It is error for a township board to hear an appeal from a highway commissioner when two of the sitting members are financially interested in the result of the appeal.---Wilson v. Township Board, 87 / 240.

CERTIORARI: Certiorari to review action of the board on an appeal should be directed to the board and not to the commissioner whose action was appealed from.-Goodrich v. High. Com'rs, 1 / 387; French v. High Com’rs, 127267; Crawford v. Twp. Bds., 22/405. This act providing an adequate remedy by appeal to review the highway commissioner's action in laying out a road and determining the damages sustained, and of the township board, certiorari will not issue from the circuit court to review such proceedings.--Hartz v. Brown, 165 / 660. It is only if no other remedy exists that courts review special proceedings by certiorari; and in eminent domain proceedings to lay out a highway, appealed to the circuit court, an aggrieved party may review the judgment by writ of error, since the legislature indicated a purpose by said act to permit appellate review in the supreme court.--Township of Custer v. Dawson, 178 / 367. Certiorari treated as a writ of error.-Id.

APPEAL: The jury in eminent domain proceedings, on appeal from a verdict and award for taking appellant's property for a highway, has authority under the statute to determine disputed boundaries involved in the taking of a part of the lands, where a controversy arises as to the location of the section line by the surveyors.--Letourneau v. Erickson, 182 / 617. Where the question was properly raised in the court below, appellant was entitled to have the issue tried by the jury and settled, before steps were taken to open and improve the highway.-Id.

When appellant to pay costs, how apportioned, etc.

(14) § 4296. SEC. 9. In case the determination of the commissioner upon which an appeal is taken be confirmed, or if his award of damages shall not be increased, the appellant shall pay the whole amount of costs of such appeal, such

costs to be ascertained and determined by the township board and deducted from the amount of damages awarded; and if there be not sufficient damages from which to pay such costs, the appellant shall be liable for the amount of the same in an action at law.

Application in due form having been made to highway commissioners for laying out a road, and they having made an order laying out a part of it only, and the township board on appeal having confirmed their action, the supreme court on quashing these orders on certiorari, refused to award costs, as the township board was acting judicially on an application giving the commissioners jurisdiction. People v. Township Board of Springwells, 12/434. Costs on dismissal of a writ of certiorari were nevertheless allowed to the plaintiffs therein where legal cause therefor existed at the time the writ was taken out.-Rentz v. Detroit, 48 / 544. The township board is not bound by the decision of the commissioner as to the amount of damages awarded, but may increase or diminish the same.-Brown v. Twp. Bd., 109 / 557.

(15) 4297. Sec. 10. In case of application under the Adjoining second subdivision of section one of this chapter, the com- joint action. missioner to whom such application is made shall, within five days after receipt thereof, notify the commissioner of the adjoining township, and they shall forthwith jointly appoint a time and place of hearing, which shall not be less than ten nor more than twenty days from and after the receipt of the application. The commissioner of each townNotice by ship shall give the same notice to the owners and occupants missioner. of land within his township that commissioners are required to give in case of applications for laying out roads within townships, and like proceedings shall be had, so far as may be, as is required in such cases, and the commissioners shall jointly consider such application and determine as to the necessity for laying out, altering or discontinuing a highway in pursuance thereof. The hearing upon any such application Adjournment

of hearing. may be adjourned from time to time, not exceeding twenty days, but the officers acting shall in all cases meet at the time and place appointed, or to which an adjournment may be had. The full record in such cases shall be filed, preserved Proceedings and recorded in the township where the commissioner resides to whom the application was made, and a copy thereof shall be filed and recorded in the township cooperating in like manner as in case of laying out roads in townships. The said Highway to township board shall cause to be established and improved school." a public highway to each and every public school building in any organized school district in every township, and where a highway is already laid out and established, and not improved and made passable to any such public school building, the said board shall cause the same to be so improved and made passable for public use.

Proceedings for laying out a township line road must be taken jointly by the commissioners, and such action by one commissioner is void.—Brewer v. Gerow, 83 / 250. The commissioners acting jointly in laying out any line road may, for good cause, deflect the line thereof from the boundary line and may locate such road in the same manner as if located on the boundary line; when so located, such road shall be deemed å line road.—Bigelow v, Brooks, 119 / 215. See also potes to section 6.

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