FORMER ACTS.

COUNTY DRAIN LAWS.

Act 104, 1847, p. 164, provides for the appointment of three commissioners to superintend the drainage of marshes and low lands in certain towns in Lenawee county. Section 12 of the act author. izes the board of supervisors of any other county to appoint commissioners for a like purpose, and extends the provisions of the act to all such counties.

Act 205, 1848, p. 311, amends the above act and adds additional provisions.

Act 17, 1849, p. 12, makes further provisions as to Lenawee county.

Act 102, 1851, p. 138, amends act 205 of 1848, and adds additional provisions to that, and act 104 of 1847. Act 169, 1857, p. 431, Comp. Laws 1857, Chap. 38, provides a new law for drainage under the superintendence of commissioners appointed by the board of supervisors, and repeals all contravening

acts.

Act 178, 1859, p. 499, amends act 169 of 1857, and adds additional sections.

Act 216, 1861, p. 452, provides for drainage by three commissioners appointed by the board of supervisors, and repeals act 169, of 1857, and act 178, of 1859.

Acts 176, and 240 of 1865, and acts 4, 127, and 149 of 1857, amend act 216 of 1861.

Act 43, 1869, p. 70, Comp. Laws of 1871, Ch. 47, being the county drain law, was amended by act 169, 1871, 104, 1873; arts 65, 112, 159, and 229, 1875; act 109, 1877; and 251, 1879.

Act 269, 1881, p. 367, being the revised drain law, repeals act 43, 1869, and the acts amendatory thereof. Act 180, 1883, provides for the completion of county drains in certain cases.

TOWNSHIP DRAIN LAWS.

Revised statutes, 1816, chapter 131. Compiled Laws, 1857, chapter 38, provides for drainage on application to the township board.

Act 257, 1859, p. 1064, provides for establishing drains by agreement of parties, and by commission. ers of highways.

Act 241, 1861, p. 491, amends act 257 of 1859.

Act 348, 1865, p. 704, repeals act 257 of 1859, and the amendments thereto, and provides for locating and establishing ditches and water-courses under the supervision of the commissioner of high ways. Act 39, 1869, p. 59, provides for locating and constructing ditches, drains, and water-courses by highway commissioners, and repeals all prior acts for locating and constructing ditches, drains, and water-courses, so far as they relate to commissioners of highways in townships.

Act 98, 1871, p. 146, C. L. 1871, chapter 48, township drain law; amended 1875, p. 166; 1877, p. 226; 1879, p. 143. Act 269, 1881, p. 367, being the revised drain law, repeals act 98, 1871, and the amendments thereto. Act 180, 1883, provides for the completion of county drains by township drain commissioners in certain cases.

CERTAIN SUPREME COURT DECISIONS.

Assumpsit.-1. Townships are not accountable for the moneys levied for drain taxes: Davi son v. Township of Aurelius, 49 Mich., 479.

2. The laying out of drains is not a township matter, but is a neighborhood concern; the taxes levied for that purpose are local assessments; the township treasurer, in collecting them, and the township board of drain commissioners, in drawing orders on the fund, are not acting as agents of the township, nor does the township board exercise an independent discretion in drawing the orders; it acts on the determination of the local drain commissioner, and is not obliged to look beyond his report for its authority: Ivid.

3. A township is not responsible for the defaults and misconduct of its drain commissioner in the performance of his duties: Ivid.

Assumpsit will not lie against a township to recover back the amount of a ditch tax levied under unlawful proceedings and paid into the hands of the township treasurer. He does not receive it for the township, or as money to be used in a township matter: Camp v. Township of Algansee, 50 Mich., 4.

Case.-1. In an action for obstructing a ditch, it is unimportant whether the ditch had been legally laid out, if the defendant had consented to it; it is also unimportant whether the parties originally agreed on the line of the ditch, if they acquiesced in what was done: Freeman v. Weeks, 45 Mich., 335.

2. Where a ditch dug as a neighborhood drain has remained open as a water course for some years, it ought to be governed by the rules that apply to other water-courses: Ibid.

3. A man was sued for overflowing plaintiff's land by obstructing a ditch. His wife and children were the persons who filled it up, but when the plaintiff cut trenches to let off the water, defendant himself filled them up again, threatened those who were sent to re-open them, and asserted his purpose not to let the main ditch be cleared for less than $1,500; there was some evidence that he also knew where his wife was when she was at work. Held, that the jury were justified in finding him responsible for the mischief: Enright v. Hartsig, 46 Mich., 469.

4. A man obtained permission from the overseer of highways to clear out a certain ditch "if it would benefit the road." Held, that his brother could not maintain an action against the overseer for injuries done his premises by the improvement: Parker v. Fields, 48 Mich., 250.

5. If by common consent, a ditch is dug as a neigborhood drain, it ought to be governed by the rules that apply to other water-courses; and if parties concerned acquiesced, it is unimportant that they did not originally agree to the exact line of the ditch: Freeman v. Weeks, 48 Mich., 255.

6. If a person affected by the construction of a ditch did not consent to its being opened, or if he did consent, but soon after claimed and exercised the right of building a rail fence in it, leaving space for the water to flow beneath, he is not liable for the obstructions of the ditch resulting sub. sequently from the settling of the fence: Ibid.

7. Irregularities in the proceedings for laying out a public ditch cannot be relied on as a defense in a merely collateral action for obstructing it, if it was laid out by a commissioner and construct

ed by the parties or with their consent, even though the defects would have been fatal if seasonably objected to by proper persons: Ibid.

Equity-Equity jurisdiction in tax cases.-1. A court of equity has power, in a proper case, to enjoin the collection of an illegal tax: Kinyon v. Duchene, 21 Mich., 498.

2. The defendants in this case are enjoined from proceeding as highway commissioners to cut a ditch along the roadside in front of complainant's farm and dwelling, some forty-six rods long, from two to five feet deep, and of an average width of six feet at the top and of two feet at the bottom, where it is held the proofs do not serve to show the semblance of any need for it on account of the road, and do show that it will work irreparable injury to complainant.-Cooley, J., dissenting: Conrad v. Smith, 32 Mich., 429.

3. The complainant is held not estopped from complaining of the illegal and injurious conduct of defendants, by reason of his having bid at the public letting of the contract for cutting. the ditch, and of its having been struck off to him, when it is shown that he took this course to keep the work in abeyance for a little while until he could get time to file his bill for an injunction: Ibid.

4. The Supreme Court in chancery cannot, on appeal from the confirmation of proceedings to levy a ditch tax, place itself in the position of the constitutional jury of inquest, and judge for itself upon matters of which that tribunal had sole jurisdiction: Clark v. Teller, 50 Mich., 618.

5. Equity jurisdiction does not include the exercise of eminent domain. The necessity of taking property and the ascertainment of damages are not cognizable by bill in equity brought to annul the proceedings of the proper tribunal.-Ibid.

6. Defects in a drain commissioner's proceedings, if they do not relate to the jurisdiction, and if no fraud is alleged, are not reviewable in a collateral case, and mere questions of regularity and charges of error are not reviewable on appeal in equity from the confirmation of the proceedings: Ibid.

7. A petition to lay out a township drain seems to be sufficiently precise if it gives the point where the ditch is to begin, the directions in which it is to run, with the distances, and the point where it is to end: Ibid.

8. Proceedings to lay out a township drain are not invalidated by the fact that a juror was not a freeholder, if no objection was made to his sitting, and the party afterwards objecting was present, aided in striking the panel, and declared himself satisfied with it.-Ibid.

9. Objections to proceedings to lay out a township drain are not noticed if not stated in the petition for review, even though they were considered on the hearing for confirmation, nor are those which are stated, unless proved or admitted: Ibid.

10. A bill to set aside proceedings to establish a drain, and to enjoin the collection of the drain tax, was properly dismissed where complainant had joined with others in releasing the right of way, had bid off part of the work, had neglected to inform himself as to his interests, and had delayed to file his bill until the whole tax had been collected except his share and that of one other objector: Harwood v. Hunton, 51 Mich., 639.

11. A bill of interpleader is not the proper proceeding to enable a township treasurer to determine the right to the amount of specific drain taxes assessed against particular pieces of property and paid under protest, where the several property-owners, on the one hand, claim that the taxes are illegal and should be refunded, and on the other, those individuals who have received township orders against the specific sums so paid, but whose interests are not themselves conflicting, present their orders to the township treasurer to be cashed: Wallace v. Sortor et al., 52 Mich., 159.

12. A bill in chancery will not lie where the amount in controversy is less than $100; nor will it where the entire amount is more than that, but has to be disposed of under separate issues no one of which involves so much: Ibid.

Mandamus.-1. The holders of Saginaw county drain orders applied to the supervisors of that county, in general terms, to levy a tax, as required by the act of 1871 (Sess. L. 1871, vol. 3, p. 92), providing for the payment of the expenses of certain ditches made under the drain laws in that County, and upon their refusal filed their petition in this court for a mandamus to compel them to do so. This petition is general to all the ditches, and does not separate the case of one or more from the rest, or show what fund their orders were drawn against, or what ditches they had reference to: Held, that the relators, under such petition, assume the burden of showing that supervisors should have levied the tax for all the drains, and if insuperable objections exist to a tax for one out of all, the writ must be denied: Butler v. Supervisors of Saginaw county, 26 Mich., 22.

2. A petition for mandamus must show a clear legal duty resting upon the person or tribunal against whom the remedy is sought, which they refuse on request to perform, and it does not show this if the request embraces anything which it would be illegal for them to do.-Ibid.

3. A person who claimed to be the holder and owner of certain ditch orders asked a writ of mandamus to compel the board of supervisors to provide for their payment. The board answered that they had no knowledge as to whether the relator was holder and owner of the orders as claimed. Held, that the answer was proper, and that relator would not be entitled to the writ unless her right to the orders was admitted or proved: Brownell v. Board of Supervisors, 49 Mich., 414.

4. Mandamus proceedings to compel the payment of ditch orders, if begun by a person not entitled thereto, would not bar a subsequent action by the rightful owner, and the title of the relator must therefore be admitted or proved for respondent's protection: Ibid.

5. The county drain law allows the reassessment of ditch taxes where they have been set aside. Held, that a purchaser of State lands, who had had the ditch taxes thereon vacated, would not be granted the discretionary writ of mandamus to compel the board of supervisors to provide for the payment of ditch orders in his possession, nor would such writ be granted to a person holding such orders under him: Ibid.

6. Whether the purchasers of State lands on which ditch taxes have been assessed can have such taxes set aside-query: Ibid.

Riparian Rights.-1. A riparian owner has the right of drainage into the stream opposite his own lands, of such of his land as requires it, and has the right to the natural flow of the stream for that as well as for other purposes: Treat v. Bates, 27 Mich., 390.

2. Any dam below, which sets back the water to his injury, is a violation of his rights, and may be made the ground of equitable relief: Ibid.

Trespass-1. In trespass for digging a ditch on plaintiff's land, it is proper to allow defend. ants, after justifying as drain commissioners and contractors, to amend the notice attached to their plea by stating that they dug under a license from the plaintiff: Hopkins v. Briggs, 41 Mich., 175.

APPENDIX,

CONTAINING

BLANK FORMS,

PREPARED BY THE ATTORNEY GENERAL IN COMPLIANCE WITH ACT No. 227, LAWS OF 1885,

APPENDIX.

BLANK FORMS TO BE USED UNDER THE PROVISIONS OF ACT No. 227, OF THE SESSION LAWS OF 1885, KNOWN AS THE DRAIN LAW.

[These forms have been drawn, in most cases, for the benefit and use of the Township Drain Commissioner, and can be readily adopted, with slight modications, by County Drain Commissioners.]

I do solemnly swear that I will support the constitution of the United States, and the constitution of this State, and that I will faithfully discharge the duties of the office of Township Drain Commissioner of the township of, in said county, according to the best of my ability. So help me God!

Know all men by these presents: That we, ——, as principal, and

and

as sureties, all of the county of, and State of Michigan, are held and firmly bound unto the township of in the county and State aforesaid, in the penal sum of one thousand dollars, lawful money, for the payment of