Removal of poles, etc.

Buildings in process of moving.

Penalty for failure to remove.

Saw logs,
cordwood,
etc., removal
of.

When commissioner may sell.

For an act authorizing township boards to grant the right to use the highways, etc., of any township for poles, wires, conduits, etc., see § § 4836-40, C. L. 1915; for an act giving the Michigan railroad commission (now the public utilities commission) supervision over transmission of electricity in highways, see 4842-50, C. L. 1915.

(131) § 4409. SEC. 9. Any party or parties, firm or corporation violating any of the provisions of this act, shall, upon demand of the township highway commissioner of the township in which such highway is located, remove such encroachments, poles or posts. If removal be not made within thirty days after written demand be made by the said highway commissioner, then the said commissioner shall have the right to remove such encroachments, poles or posts and the party, parties, firm or corporation, so violating, shall be liable for the amount of expense incurred in making such removal.

(132) § 4410. SEC. 10. If any building or other serious obstruction shall, in the process of moving, be left in the highway, so as to interfere with the travel thereon, the commissioner may notify the person at fault to remove the same within two days, such notice to be either verbally or in writing, and if such obstruction be not removed pursuant to such notice the person at fault shall be liable to a penalty of five dollars per day for each day that the same shall remain unremoved, and after seven days the commissioner may proceed to remove it.

.

(133) § 4411. SEC. 11. In case any saw logs, cordwood, or other loose obstruction shall be upon any highway, the commissioner may notify the owner, if known, to remove the same within three days, and if not so removed, or the owner is unknown, the commissioner may remove such obstruction to some convenient place, and if it have a value he shall hold it for thirty days subject to the order of the owner upon payment of the necessary expenses of removal, after which time he may sell the property removed, and such sale, notice of sale and application of the proceeds thereof shall be the same as is now required by law of constables on sale under execution, and the expense of removal, care of property and sale shall be deducted from the proceeds of sale, and the balance paid to the owner of such property, or deposited with the township clerk to be by him paid to the owner. In case the article or thing have no value or is not of sufficient value compensation. to pay for the removal, the commissioner shall be entitled to compensation for the expense of removing it, to be audited and allowed by the township board, and the expense of removal may be recovered from the owner in the name of the township in an action of assumpsit.

When commissioner entitled to

As to the right of an adjoining property owner to put stone, wood-piles, brush-heaps, etc., in the highway, see Bennett v. Hazen, 66 / 657. The unauthorized or excessive use of a portion of the public highway by an abutting owner in putting lumber or material thereon is a matter that falls within the cognizance of the police power, and it has nothing to do with the duty to make or repair highways.-McArthur v. Saginaw, 58 / 357.

Fence, peti

tion for re

moval, etc.

appeal.

(134) § 4412. SEC. 12. Upon the petition of twenty freeholders, residents of the same township, addressed to the highway commissioner of their township, stating that any particular fence other than a stone or hedge fence, along any highway within their township, by reason of its construction or otherwise, is dangerous either of itself or by reason of causing obstruction to the highway, it shall be the duty of the said township highway commissioner to notify the owner, or the occupant of the premises whereon said fence is located, to remove the said fence. Upon the neglect or refusal of the Refusal. said owner or occupant to remove said fence within thirty days after such notice, it shall be the duty of the highway commissioner to remove or cause to be removed, the said fence, and the expense incurred thereby shall be paid from the general fund of the township, and all costs thereby incurred shall be assessed against the property whereon such fence was located, and shall constitute a tax against said property, to be levied and collected as other township taxes are assessed, levied or collected: Provided, That any owner or occupant Proviso, of any land who, having received notice to remove any fence, deeming himself aggrieved, shall have the right to appeal to the township board, such appeal to be in writing and served upon the township clerk within ten days of the receipt of said notice. Upon said appeal it shall be the duty of the township board to Duty of carefully determine the facts concerning the removal of said board. fence, and shall either dismiss or confirm the order of the highway commissioner as to the removal of such fence. The Damages. township board shall award any damage to such owner or occupant for the removal of such fence, as in its judgment seems just, and such reward shall be paid from the general fund of the township. Any person conceiving himself aggrieved by the order, determination or award of the township board, may appeal therefrom to the circuit court of the county in which such township is situated; such appeal to be taken and perfected in the same manner as is provided by law with respect to appeals from justices' courts. The issue shall be as to whether such fence should be removed, and if removed, the damages to which the owner is entitled..

On petition of the required number of freeholders to secure the removal of stump fences standing along a highway and upon testimony that they caused the snow in winter to drift into and fill the highway, held, that an allowance of damages to the owners for requiring removal of their stump fences was Justified by the theory of the statute; also, that the trial court was right in excluding testimony tending to show the fences were a harborage for noxious weeds and interfered with the enjoyment of their property by others.-Twp. Board of Grant v. Larsen, 192 / 630.

township

remove fence.

(135) 4413. SEC. 13. In counties operating under the Petition to county road system, upon a petition of twenty freeholders, each of whom are the owners of property abutting upon a part of the county road system of said county, and being residents of the same county, addressed to the board of county road commissioners of their county, stating that any partic ular fence, other than a stone or hedge fence, along any highway adopted as a county road within their county, by reason

County road commissioners to ex

amine, etc.

not to remove

fence.

Proviso, appeal to board of supervisors.

of its construction or otherwise, is dangerous either of itself or by reason of causing obstruction to the highway, it shall be the duty of the said board of county road commissioners to examine said fence and if, in its opinion, said fence is dangerous either in itself or by reason of causing obstruction to the highway, said county road commissioners shall notify the owner or the occupant of the premises whereon said Proviso, when fence is located, to remove said fence: Provided, however, That nothing contained in this act shall operate to cause the removal of any fence along any highway, between April first and September thirtieth in any year, without the written consent of the said owner or occupant. Upon the neglect of the said owner or occupant to remove said fence within sixty days after such notice, if he shall not have taken an appeal as hereinafter provided for, it shall be the duty of the board of county road commissioners to remove or cause to be removed the said fence, and any material removed shall thereupon become the property of the county to be sold or otherwise disposed of by the said board of county road commissioners, and any expenses incurred in the removal of said fence shall be paid from the county road fund of the county upon a warrant drawn by the proper officer: Provided, That the owner or occupant of any land, upon which any such fence is located, or any person, having received notice to remove any fence, deeming himself aggrieved, shall have the right to appeal to the board of supervisors of said county. Such appeal shall be in writing and served upon the county clerk within ten days of the receipt of said notice upon said appeal. It shall be the duty of the board of supervisors at its first meeting thereafter, to carefully determine the facts concerning the removal of said fence; and the board of supervisors may confirm, reverse or modify the order of removal of said fence and shall award any damage to such owner or occupant for the removal of said fence, and shall also award to the person so aggrieved all or any part of the expense incurred by reason of such removal, and of the erection of a suitable and lawful fence in the place of the fence removed or ordered to be removed. Such award shall be paid from the county road fund of the county: Provided, That any person deeming himself aggrieved by the award of damages by the board of supervisors, shall have the further right to appeal therefrom to the circuit court of the county, and said appeal shall be governed by the rules of practice, the same as appeals from the justice court to the circuit court for civil cases, as far as the same can be made applicable, and it shall be the duty of such circuit court to hear such appeal and to determine the amount of damages to be allowed in such case: Further pro- Provided further, That it shall hereafter be unlawful for any person, firm or corporation to erect a fence along the county road, of any material, other than a stone or hedge fence which, by reason of its construction or otherwise, is

Duty of board.

Proviso, appeal to circuit court.

viso, unlawful to build certain fences.

dangerous in itself or by reason of causing an obstruction to the highway.

(136) § 4414. SEC. 14. Any person, firm or corporation Penalty. erecting or causing to be erected any fence contrary to the provisions of section thirteen of this act, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than fifteen dollars, nor more than fifty dollars, or by imprisonment in the county jail for a period not exceeding thirty days.

CHAPTER VIII.

THE ERECTION, REPAIRING AND PRESERVATION OF BRIDGES.

(137) § 4415. SECTION 1. The commissioner of highways shall have the care of the building, rebuilding and repair ing of all bridges within his township, but he shall not have the right to build new bridges to exceed fifty dollars in cost, without the approval of the township board, or of a majority of the electors of the township voting thereon.

See section 149 as to width of bridges, etc.

BRIDGES: Highway commissioners have no authority to involve the township in debt, at their discretion, for building bridges.-Hosier v. Higgins Twp. Bd., 45/340. Highway commissioners will not be compelled by mandamus to cause a bridge to be built in the place of one which has been destroyed, where the cost greatly exceeds the amount prescribed by the statute.-Goodsell v. Post, 30/353; neither will the supreme court interfere by mandamus to compel a township board to repair a public bridge.-Perrine v. Hamlin, 48/641; Travis v. Skinner, 72/152. The town authorities have no right to build a bridge across a navigable stream without the sanction of the board of supervisors.— Const. Art. 8, Sec. 14; Stofflet v. Estes, 104/208. Discretion of township authorities. Kingsley v. Nyland, 136/535. See sections 241-243.

CONTRACT FOR CONSTRUCTION: Highway commissioners have no authority to contract with persons who have not themselves bid for work that under the statutes can only be let on sealed proposals.-Beard v. DeGoit, 58/245. The use of a bridge by the people of the township, when traveling upon a public highway cannot be construed as an act of acceptance of the work done in building the bridge; the proper parties to ratify a contract are those only who could in the first instance have lawfully made the contract.-Taymouth v. Koehler, 35/22. The board of highway commissioners having under the statute authority without a vote of the people in certain cases to repair or reconstruct bridges, a person entering into a contract with one of its members, which upon its face appears to be within the authority of the board, has a right to assume that the contract is, in fact as in appearance a proper one; and if he goes on and in good faith furnishes material under such contract, he will be entitled to recover therefor in case the commissioner was authorized by the board to make such contract, or if his action was afterwards ratified by the board.-Id. The board of highway commissioners may ratify an unauthorized contract for doing work which is within their general powers to contract to have done, either while the work is in progress or after it is completed, by action at a meeting held pursuant to previous notice, or at a meeting of all the members without notice, and the township will be bound by their action; but the members of the board severally have no such power.-Id.

NECESSITY: Held that the rebuilding of a bridge was a necessity where the same had been maintained for a number of years.-Brophy v. Schindler, 126 / 342. The rebuilding of a bridge is a necessity, unless proper proceedings are taken to discontinue the highway.-Berube v. Wheeler, 128 / 37.

Building, rebuilding and repairing of

bridges.

sity requires

(138) § 4416. SEC. 2. Whenever, in the opinion of the When necescommissioner, an exigency exists requiring a greater expen- greater exditure than has been provided for by the electors or township than proboard, as authorized by chapter two of this act for the build- vided." ing, rebuilding or repairing of any bridge or bridges, road or roads in his township, or whenever he shall be petitioned in writing by not less than fifteen freeholders thereof, he shall notify the township clerk thereof in writing, and the said

Township board may order addi

Submission

to electors.

clerk shall, within five days thereafter, call a meeting of the township board to consider the matter of said notice. And in case the exigency shall be deemed to exist, the commissioner, tional funds. with the township board, may order that any sum not exceeding one thousand dollars shall be raised in addition to that already provided for, and if, in the opinion of the said commissioner and township board, it shall be necessary to raise more than one thousand dollars, the said township board may order that the question of raising money for such building, rebuilding or repairing be submitted to the electors of said township. If the order be made within one month preceding the annual township meeting the question shall be submitted at such meeting, but otherwise a special meeting may be called and the township board may determine the form of notice as prescribed in the next section, and at such meeting the electors may vote a sum, not exceeding one-half of one per centum in any one year on the assessed valuation of the real and personal estate of such township, as may appear by the then last assessment, for the purposes in this section specified.

When submitted.

Sum may vote.

Notice of election.

Ballot, conduct of election, etc.

Tax levy, drawing of orders, etc.

OPINION OF COMMISSIONER: The opinion of the commissioner of highways as to the cost of repairing a bridge must prevail, and mandamus will not be granted to compel such repairs at his own motion, where in his return he shows that in his opinion the cost will exceed $1,000.--Travis v. Skinner, 72/152; Bigelow v. Brooks, 119/208; Berube v. Wheeler, 128 / 35. See Pearl v. Benton Twp., 136/697.

MEETING OF BOARD: There should be proper written evidence placed on file or on record, showing that the requisite statutory preliminary requirements to a legal meeting have been complied with and showing that such a meeting has been held and the proceedings thereof.-Taymouth v. Koehler, 35 / 25. The record must show all statutory requirements complied with.-Loomis v. Rogers Twp., 53 / 142.

See sections 163-168 relative to the building of bridges, situated in more than one township, etc., when any township is unwilling to contribute its just share. See also Ionia Co. Sup'rs v. Judge, 134 / 416.

(139) § 4417. SEC. 3. Notice of such vote to be taken, whether it be at an annual or special meeting, shall be given in the manner and for the length of time prescribed by law for holding special township meetings; and such notice shall state the amount of such proposed tax, and the bridge or bridges, road or roads, for the building, rebuilding or repair of which the money proposed to be raised is to be applied. The vote in such cases shall be by ballot, and the ballots shall express "For the bridge tax," or "Against the bridge tax;" "For the exigency road tax," or "Against the exigency road tax" and the result shall be as a majority of those voting shall determine. Elections for such purpose shall be conducted, and the result ascertained and certified, in the manner provided by law for annual and special township meetings.

(140) § 4418. SEC. 4. Any moneys that may be voted pursuant to the last two preceding sections shall be reported to the supervisor and included in the next ensuing tax levy, and the commissioner may draw his orders upon the township treasurer for the amount so voted in anticipation of the collection of such moneys, such orders to be applied to the purpose for which such moneys were voted, and to no other purpose.