notice. Weber v. Stagray, 75/32. Where all the land to be taken belonged to persons residing on the property, and notice was personally served on appellant, it was unnecessary to post the notices required by this section; and the return to the writ of certiorari containing a proof of personal service within the proper time, complies with the requirement of the statute.-Gorham v. Johnson, 157/433. WHO ENTITLED TO NOTICE: All owners and occupants through whose lands the highway is proposed to be laid out are entitled to the statutory notice. -Names v. Highway Commissioner, 30/491; Sherman v. Peterson, 91 / 480. Failure to serve notice upon the occupant, a tenant of the owner of a life estate is fatal to the proceedings.-Welch v. Hodge, 94/493. The 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.-Goss 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 eighteen 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. Notice to life tenant of land.-Hatt v. Twp. Board, 144 / 266. 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 records show that the statutory notice of the proceedings was given.-Van Auken v. Highway Commissioners, 27/414; Moetter v. Highway Commissioners, 39/726; Gray v. Highway Commissioners, 40 / 165. Nelsen v. Wakefield, 43/435; Blodgett v. Whaley, 47/469; Goss v. Highway Commissioner, 63/608. A 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 31 as to discontinuance of state roads. tached to (9) § 4291. SEC. 4. Upon the service of the notice required Amdavit, atby the last preceding section, and before any further proceed- notice. ings 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. 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 To view premises, appraise damages, etc. Proviso, parallel highway. Further proviso. be in due form. It should name the person 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 8. (10) § 4292. SEC. 5. The commissioner shall, at the time appointed, proceed to view the premises described in the application and notice, and to ascertain and determine the necessity for laying out, altering, or discontinuing a highway pursuant to such application, and to appraise the damage on 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: 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, by resolution, of the township board of the township in which such tax is levied. Boards of supervisors have exclusive jurisdiction in laying out, altering or discontinuing state roads.-Goldsmith v. Com'r, 15 / 347. 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. 13, Sec. 2, Constitution.-People v. Kimball, 4/95; Truax v. Sterling, 74/160. The term "taking" should not be used in an unrea sonable 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 interfered 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. But it is not essential that the highway should be indispensable or imperative to the public.-Rogren v. Corwin, 181/53. 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. Board, 109 / 557. A township is not liable for interest on damages appraised for laying out a highway.-Anderson v. Township Bd., 2/188. In determining the damages to which the owner is entitled, the jury should consider the benefits which accrue to the property from the improvement. -Township of Custer v. Dawson, 178 / 367. 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,ˆ68 / 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 or 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.-Ayres v. Richards, 38/214; 41/680. The compensation to be awarded to the owner of real property, taken for a public highway, is not the full value of the fee, since the title remains in the owner, but he is entitled to receive the value of the easement, or the full value of the interest taken.-Township of Custer v. Dawson, 178 / 367. 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. highway and lay out a new one and build a bridge cannot be united in one Proceedings to discontinue a proceeding. Cox v. Com'r of Highways, 83/193; nor proceedings to open one highway and discontinue another be combined. taken at a time and every road must be opened and closed on its own merits.Only one proceeding can be 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. as a part of damages to cost of erecting and maintaining safety gates, or towers, But are entitled 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. 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. highway is laid out parallel to and within one-half mile of an existing highway. Where a 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 termíni in other public highways.-Rogren v. Corwin, 181 / 53. er's return. (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 to show that notice was served upon one of the occupants of the land affected is Appeal. To be in writing. Deposit. Disposition of fee. Meeting of board. Notice. 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. 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, 447526. 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 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, 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. Decision of board, where circuit court. (13) § 4295. SEC. 8. The township board shall proceed at the time and place specified in the notice to hear the proof recorded, etc. 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 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 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 Determinajudgment 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 Jurisdiction of court. tion. pending. |