Notice for laying out or altering road, how served. to be changed, shall be described in general terms, and where the application is for the alteration or discontinuance of a road, such road may be described by any name by which it is known, and if the discontinuance of only a portion of any road is asked for, such portion shall be specified. LAYING OUT AND DISCONTINUING : Proceedings to open one highway and discontinue another cannot be combined; only one proceeding can be taken at a time, and every road must be opened or closed on its own merits. -Shue v. Highway Commissioner, 41/638. Void proceedings by commissioners discontinuing a highway are not a bar to regular ones taken to widen it to the statutory width; which latter action is not premature by reason of the pendency of certiorari proceedings. In which the invalidity of such discontinuance proceedings is established.-Weber v. Stagray, 75/32. Highway commissioners and township boards have no authority to act for the mere purpose of settling boundaries, and cannot properly disturb any possession with that object. The location of a highway according to the original survey is generally of no consequence where abutting owners have held continued occupancy for twenty-five years.-Shue v. Highway Commissioner, 41 / 638. ACTION BY COMMISSIONERS IN TOWNSHIPS. (15) § 4038. SEC. 3. In case of an application under the first subdivision of section one of this chapter, the commissioner shall, within five days after receiving the same, issue a written notice, stating the object of such application, and appointing a time and place of hearing, which notice shall be served by the commissioner or by some other competent person, on the owners or occupants of lands through or adjoining which it is proposed to lay out, alter or discontinue such road, either personally or by a copy left at the residence of each owner or occupant, at least ten days before the time of hearing; and if no person shall reside upon any such lands, and the owner thereof shall not reside in the county in which said lands are situated, such notice to owners of such nonresident land shall be served by posting up the same in three public places in the township ten days before the time of hearUpon railroad ing. Notice shall be served upon railroad companies by leaving a copy thereof with the agent in charge of any ticket or freight office of the company operating such railroad on the line thereof. [See form No. 3.] companies. Am. 1901, Act 142. PUBLICATION AND SERVICE OF NOTICE: A delay of over a month after receiving the application is fatal to the proceedings.-Sharpshooters Ass'n v. High. Com'r, 34/36. Where the notice sufficiently states the starting point and width, the use of the words "varying so far as is necessary to find suitable grounds for making a good and substantial road" will not vitiate the legality of the highway so far as it actually follows the survey lines.Shepherd v. Gates, 50/495. Service on the attorney of a railroad company is not authorized by statute.-D., M. & T. R. R. Co. v. Detroit, 49 / 47. on freight agent.-Truax v. Sterling, 74 / 160. The return of service should show upon what particular persons the notice was served, and whether served personally or by copy left at residence; also should show the particular places where the notices were posted.-People v. Highway Commissioners, 14/528. Sufficiency of notice.- -Weber v. Stagray, 75/32. Service WHO ENTITLED TO NOTICE: All owners and occupants through whose lands the highway is proposed to be laid out are entitled to the statutory Sherman v. Peterson, notice. Names v. Highway Commissioners, 30 / 491. 91 / 480. Failure to serve notice upon the occupant, a tenant of the owner The of a life estate is fatal to the proceedings.-Welch v. Hodge, 94/493. owners of a parcel of land not fronting upon any highway, and whose only outlet is a private way two rods wide, belonging to him, and extending therefrom to a public highway, is entitled to notice of proceedings to discontinue such highway, as much as if his whole parcel abutted upon it.-Phillips v. Highway Commissioner, 35 / 15. And where discontinuance directly affects the convenience of access or leaves the way to a land owner's house a cul de sac he is directly interested in the proceedings and entitled to notice.-Gass v. Highway Commissioners, 63/608; Bauman v. Detroit, 58/444; Kimball v. Homan, 74/703. An occupant of land traversed by a highway with reference to which his houses, wells, barns and orchards have been located, must have notice of proposed discontinuance of said highway.-Curry v. Place, 99/525. Where land has been occupied and held adversely for 18 years by one claiming to be the owner, it is not necessary to serve notice on others claiming an interest.-Nedow v. Porter, 122 / 456. A party who is not notified of highway proceedings can lose nothing by a failure to appeal to the township board.-Names v. Highway Commissioner, 30/491. Where a party appears without notice and proceeds without objection, want of notice is waived.Sharpshooters Association v. Highway Commissioners, 34/36. TEN DAYS NOTICE: All persons entitled to notice of the meeting to determine the necessity of laying out, altering or discontinuing a highway must have ten full days notice.-Saller v. Township Board, 67/422; Price v. Stagray, 68/17; Dixon v. Highway Commissioner, 75/225; Coquard v. Boehmer, 81/445; Cox v. Highway Commissioner, 83/193. And this excludes the day of service and the day of hearing.-Platt v. Highway Commissioners, 38/247. PROOF OF NOTICE: Proceedings to lay out, alter or discontinue a highway will not be sustained unless the highway commissioner's report and the record shows that the statutory notice of the proceedings was given.-Van Auken v. Highway Commissioner, 27/414; Moetter v. Highway Commissioner, 39/726; Gray v. Highway Commissioners, 40/165; Nelsen V. Wakefield, 43/435; Blodgett v. Whaley, 47/469; Gass v. Highway Commissioner, 63/608. Á written statement by one of the commissioners without date, of the service of notice on owners and occupants, which contains no description of the notice, or any date in regard to the time of service, is not sufficient proof of service of notice. There should be sworn evidence in writing of the service made and filed with the board.-Sharpshooters Association v. Highway Commissioners, 34/37. The recital in the determination of the board that the statutory notice was given is not sufficient; proof is not established from such recital. Dupont v. High. Com'rs, 28/362. Posting in a public place.— Anderson v. LaGrange Township, 2/187. ALTERING: There is nothing in the present law of this state forbidding the alteration of a highway on account of its long continued use.-Weber v. Ryers, 82/117. PLACE OF HEARING: The failure of a highway commissioner to meet at the place appointed in his notice to land owners, to view the premises and ascertain and determine the necessity of laying out a highway, ousts him of jurisdiction.-Barlow v. High. Com'r, 39/726. See section 38 as to discontinuance of state roads. copy of notice. (16) § 4039. SEC. 4. Upon the service of the notice re- Affidavit to be quired by the last preceding section, and before any further attached to proceedings shall be had, the commissioner, or other person by whom the service was made, shall make and annex to such notice, or a copy thereof, an affidavit stating the time and manner of service, whether personally or by posting, or both, and if upon a railroad company, the fact of such service and upon whom, and such notice and affidavit shall be attached to the application, and the whole shall be present with the commissioner at the time of hearing upon the application. [See form No. 4.] AFFIDAVIT: The affidavit of service of notice by the highway commissioner of the time and place for determining the necessity of laying out a highway is in the nature of a legal process, and must show that the commissioner obtained jurisdiction to proceed to the hearing. Dupont v. Com'r, 28/362; Names v. Com'rs, 30/490; Ass'n v. Com'rs, 34/36; Truax v. Sterling, 74/160. Being the legal evidence that notice has been given, it is indispensable and must be in due form. It should name the persons served with notice, and whether served personally or by copy; and if served by posting, the places where posted should be stated.-People v. Highway Com'rs, 14/528. Proof of service is a condition precedent to the further action of the commissioners.-Van Auken v. High. Com'rs, 27/414; Goss v. High. Com'rs, 63 / 609. And filing an affidavit of such service two days after making the order is invalid.-Goss v. High. Com'rs, 63 / 608. See citations under section 15. ises, etc. (17) § 4040. SEC. 5. The commissioner shall, at the Commissioner time appointed, proceed to view the premises described in the to view premapplication and notice, and to ascertain and determine the necessity for laying out, altering, or discontinuing a highway hearing. Proviso. pursuant to such application, and to appraise the damage on May adjourn account thereof, if any is claimed, and he may in his discretion adjourn the hearing from time to time, not to exceed twenty days: Provided, That in case a highway shall be laid out parallel to and within one-half mile of any already existing highway, the damages upon any lands taken therefor shall not be estimated at less than the value of such land unless by the assent of the owner of such lands: And provided further, That the highway commissioner shall not appropriate a sum of money to exceed one hundred dollars in laying out or improving any highway, or in building or repairing any bridge, without the concurrence of the township board of the township in which such tax is levied. Further proviso as to expense. Am. 1901, Act 142. The constitution (Art. 10, Sec. 11) giving to boards of supervisors power to lay out highways and construct bridges, does not contemplate exclusive control over the subject matter by the supervisors.-Goldsmith v. Highway Commissioner, 15/347. Neither was it inconsistent with the exercise by highway commissioners of the powers to lay out, alter or discontinue highways.-Id. And without the intervention of a jury.-Id. But of state roads, boards of supervisors have exclusive jurisdiction in laying out, altering or discontinuing. Id. See also sections 38 and 252 infra. TAKING PRIVATE PROPERTY: Taking lands of a citizen for a public highway is taking property for the use and benefit of the public within the meaning of Art. 18, Sec. 2, Constitution.-People v. Kimball, 4/95; Truax v. Sterling, 74 / 160. The term "taking" should not be used in an unreasonable or narrow sense, but should include cases where the value of property is destroyed or injured, or where the owner is excluded from its enjoyment or from any of its appurtenances.-Pearsall v. Supervisors, 74 / 559. And if the public take any action which becomes necessary to subserve public use and valuable rights of individuals are thereby interferred with and damaged or destroyed, he is entitled to the compensation which the constitution gives therefor, and such damage or destruction must be regarded as a taking. Id. The necessity for taking must be found to exist.-Grand Rapids v. G. R. & I. Ry. Co., 58/641; and the return must distinctly state such finding.-Truax v. Sterling, 74/160. DAMAGES : The adequacy of the compensation awarded by a highway commissioner for land taken for highway purposes is reviewable only by an appeal to the township board.-Weber v. Ryers, 82/177. See also, Weber v. Stagray, 75/36; Brown v. Twp. Bd., 109/557. A township is not liable for interest on damages appraised for laying out a highway.-Anderson v. Twp. Bd., 2/188. ADJOURNMENT: An adjournment without fixing the time and place is fatal.-Dixon v. High. Com'r, 75 / 226. So is an adjournment beyond the time fixed by statute.-Wilson v. High. Com'r, 80/247. Upon adjournment, action not to be taken until adjourned day.-Price v. Stagray, 68/ 17. COMPENSATION: The benefits to be received by a person whose land is taken are a part of the consideration for the release (or condemnation) of the land and when once vested are as much private property as the land itself, and neither the state nor any of its subordinate agencies, can deprive him of them without notice, a finding of public necessity and compensation ascertained by a constitutional jury.-Pearsall v. Supervisors, 74/559. One who petitions for laying out a street which would cross his land is not thereby precluded from claiming compensation therefor.-Turner v. Stanton, 42/506. Compensation is a constitutional condition of the taking of private property for a public way, and it can be lawful only when the necessity of the taking, as well as the measure of compensation has been determined in a legal way. -Sheldon v. Kalamazoo, 24 / 383. A private way cannot be changed into a public highway without compensation to the owner of the land over which it runs; and the fact that the owner had allowed the public to use it, cannot be allowed to reduce the amount of compensation.-Ayers v. Richards, 38/214; 41 / 680. 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 v. 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 Also 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. expense of cattle guards, fencing and other outlay to complete the approach, beside the cost of maintaining them.-C. & G. T. R. 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. filed with (18) § 4041. SEC. 6. Within five days after final deter- Record to be mination upon any application for laying out, altering or dis- township continuing any highway, the commissioner shall file a full clerk, etc. 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, when a survey has been made, 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. [See forms Nos. 5, 6 and 7.] 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. High. 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 iand 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'r, 27 / 415; Pegler v. High. Com'r, 34/359; Moetter v. High. Com'r, 39/726. And a certificate that they had "given notice according to law" is not sufficient.-Van Auken v. High. Com'r, 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'r, 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 defectice 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. APPEALS TO THE TOWNSHIP BOARD. (19) § 4042. SEC. 7. Any person being a freeholder or Appeal, how made, etc. a holder of lands by homestead right within the township, who may conceive himself aggrieved by the determination of Township proof, etc. Decision, how signed, where filed, etc. a commissioner in laying out, altering, or discontinuing any highway, or in his award of damages, may, within ten days after such determination, 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, who 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. [See forms Nos. 8, 9 and 10.] RIGHT OF APPEAL: A gneral 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, 44/526. Award of damages. -Campau v. Le Blanc, 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. 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 v. 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, Super; Prescott v. Patterson, 44/525; 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. (20) § 4043. SEC. 8. The township board shall proceed board to hear at the time and place specified in the notice to hear the proof 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 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 Dissatisfied party may appeal. |