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CHAPTER XLVIII.

TOWNSHIP DRAIN Ꮮ Ꭺ Ꮃ .

An Act to authorize the election of a township drain commissioner in each organized town, and to authorize him to locate, establish, and construct ditches, drains, and water-courses in his respective towns, and to repeal all other drainage laws in relation thereto.

Election of town

missioner.

Powers of.

[Approved April 13, 1871. Laws of 1871, p. 146.]

(1778.) SECTION 1. The People of the State of Michigan enact, ship drain com- That there shall be elected, at the town election in April, in the year eighteen hundred and seventy-one, and annually thereafter, in each of the organized towns of the State, one township drain comOath of office. missioner, who shall take, subscribe, and file with the town clerk, the oath required by the Constitution of this State, and shall have power under this act to locate, establish, and construct ditches, drains, and water-courses in their respective towns, and to alter, enlarge, extend, and clear those already located, laid out, and established under any law of this State: Provided, That whenever a vacancy shall occur in the office provided for in this act, the same shall be filled by the township board of such township; and it shall be their duty to fill such vacancy within thirty days after such vacancy shall occur: Provided, That in townships where no drain commissioner shall be elected in eighteen hundred and seventy-one, it shall be lawful for the township board of such town to appoint a drain commissioner for that year, with the same force and effect as if duly elected, and he shall be qualified and sworn as if elected, and shall hold his office until his successor is duly elected and qualified under this act, and with the same powers, duties, and obligations.

Proviso.

Ibid.

application for

residents.

(1779.) SEC. 2. When any person or persons interested in estab- Proceedings on lishing a water-course, or locating a ditch, for the purpose of locating ditch. draining any swamp, lake, marsh, or other low lands, in any township in this State, shall make application to the drain commissioner of such township to establish such water-course or locate such ditch, and shall give such commissioner good and sufficient security in writing, to pay all costs and expense of whatever kind, pertaining to the action of said commissioner about such application, in case such application shall not be granted, said commissioner shall at once appoint a time and place for an examination upon such application, and shall give notice thereof, in writing, to all persons Notice of meetinterested in such ditch or water-course who reside in such town- tion of same. ing for examinaship, which notice shall be served upon each of such persons at least five days before the day appointed as aforesaid, by delivering a copy to such persons, or by leaving a copy at the residence of such persons with some person of suitable age; and when any Notice to nonperson or persons interested in such water-course or ditch reside out of such township, such commissioner shall publish such notice for three successive weeks, next before such day appointed, in a newspaper of general circulation in the county in which such township lies, or when there is no such newspaper in such county, in a newspaper of general circulation in an adjoining county, unless he shall serve written notice, as above provided, on all such persons living out of such township, in which case the persons upon whom such notice is made shall have one day's notice for every twenty miles' travel (excluding Sundays) from their resi- · dence to such place appointed, in addition to the five days' notice provided above; and a copy of such notice, with an affidavit of service or publication, or both, as above provided, shall be taken as evidence that the same has been regularly served or published, or both regularly served and published, as the case may be; and said Commissioner drain commissioner may administer any oaths provided for in this oaths. chapter.

may administer

duties of com

lation to appli

(1780.) SEC. 3. Said drain commissioner, at the time and place Powers and appointed, as provided in the preceding section, shall proceed to missioner in re examine such water-course or line of proposed ditch, and to cation. hear all persons interested, and for that purpose shall have power to enter upon any lands in his township, and may also adjourn such examination and hearing, from time to time, as to him shall seem fit, by publicly announcing the time and place to which such adjournment is made.

Pay of commissioner.

Proceedings in case drain is

Proceedings

when owners of land do not release claim for

(1781.) SEC. 4. If said drain commissioner, after such examination and hearing, determine not to establish such water-course or locate such ditch, or if the jury or commissioners hereinafter provided for shall so decide as to prevent the establishment of such water-course or locating such ditch, then said applicant or applicants shall immediately pay said commissioner all his just and legal costs, charges, and expenses, including all moneys said commissioner may have paid, or become obligated to pay, the other persons in the same manner.

(1782.) SEC. 5. On such examination and hearing, if said drain found necessary. commissioner shall deem it necessary to drain such lands mentioned therein, and for the health of the inhabitants of such town, he shall immediately proceed to establish such water-course or locate such ditch, and to that end he shall cause a survey and measurement thereof to be made, if he deems it necessary, and shall decide upon the commencement, courses, distances, depth, width, and termination thereof; and if any of the owners of the land through which said water-course or ditch is to run, shall not compensation. release all claim for compensation therefor, the said commissioner, at the time of the examination and hearing mentioned in the foregoing sections, shall make a list of twenty-four disinterested freeholders residing in the vicinity of such land, and in the same county, from which said commissioner shall strike off the names of six, and the owners of such land six; but if such owners do not appear at said examination and hearing, or, appearing, refuse or neglect to act, then said drain commissioner shall strike off other six, and the remaining twelve shall be elected; and said commisSheriff to sum; sioner shall at once issue a venire, signed by him, directed to the mon jurors and fill jury. sheriff or any constable of said county, commanding him to summon said jurors, naming them, to be and appear before him forthwith, or at such other time as he shall direct, not more than three days from the date of said venire, to serve as jurors to ascertain the necessity of taking certain property (describing it) for the purpose of such water-course or ditch, and the just compensation to be paid therefor; and if all such jurors shall not appear, said sheriff or constable shall summon talesmen to make a full jury. Said Oath of jurors. jurors shall be sworn to ascertain the necessity of taking the land described in the venire, for the purpose of opening said water-course or ditch, and to appraise the just compensation to be paid to the owner or owners thereof, if any. Said jury, after viewing the premises described in said venire, shall make return to said drain commissioner, in writing, signed by all, or a majority of them, of their

Return of jury to commissioner

chosen until

may be appoint.

doing, which shall state as to the necessity of taking such tract or tracts of land described in the venire for the purpose of opening said water-course or ditch, and the just compensation to be paid to the owner or owners therefor, if any, and to whom payable; and in successive jurics case said jury cannot agree, another jury may be chosen and sworn they agree. in like manner as the first, on the same or some other day to be appointed by said commissioner, who shall act and make return as aforesaid; and successive juries may be chosen, sworn, and act as aforesaid, until they shall agree, if the parties interested desire it; or Commissioners said drain commissioner may then, or in the first instance, apply to ed by probate the probate court of their county for the appointment of three commissioners to act in place of said jury, who shall take the same oath and perform the same duties prescribed above for said jury: Provided, That if said jury or commissioners shall certify that the Proviso. taking of said land for the purpose of said water-course or ditch is not necessary, all further action in that case shall be suspended for twelve months, at the expiration of which time another jury or set of commissioners may be called or appointed as aforesaid, if the parties desire it.

. court.

when claims are

pensation award

(1783.) SEc. 6. If the owners of the land through which such Proceedings water-course or ditch is to run shall release all claims for compen- released or comsation therefor, or said jury or commissioners of appraisal shall ed. return that it is necessary to take said land for the purpose of said water-course or ditch, and shall award the just compensation therefor to be paid to the owners of said land, said drain commissioners shall, as soon thereafter as may be, proceed to apportion the labor of opening and maintaining said water-course or ditch upon the lands drained or benefited thereby, or the township at large, in such proportion as he shall deem just and right; and shall cause a measurement to be made of such proportion thereof as he shall award to each piece or tract of land, and shall number the same, and cause a stake or monument to be placed at the commencement of each portion, with the number of the same marked thereon on the side towards the portion designated by the number; and he shall cause a survey to be made, showing the commencement, intermediate courses and distances, depth, width, and termination of such water-course or ditch, also showing the portions into which such water-course or ditch is divided, and the length and number of each portion, and he shall make an official certificate of his official certifidoings, showing the establishment. of such water-course or location sioner and where of such ditch, referring to such survey for the commencement, courses, distances, depth, width, and termination of the same, and

cate of commis

filed.

Entry to be

made of same in

purpose.

further showing what portions of such water-course or ditch he has apportioned to be opened and maintained by each piece or tract of land to be drained or benefited thereby, and the length and number of such portion, which certificate, together with said survey, and all other papers in the case, shall be attached together and filed in the office of the clerk of the township in which such watercourse or ditch is to be opened, to be preserved as the records of such township, for the benefit of those interested; and such clerk shall make an entry, in a book kept for that purpose, of papers so a book for that filed, showing the kind of paper and date of entry, and showing in what part of such township such water-course is established, or ditch located, and name of ditch, which entry shall be prima facie evidence of the existence of such papers at the date of such entry, and of their having been duly filed at such date; and such award and apportionment of labor, as aforesaid, when duly filed as aforesaid, shall thenceforth be a lien upon each piece or tract of land so drained and benefited, to open and maintain such portion of such water-course or ditch so apportioned to it, and an obligation against the owners thereof: Provided, That in case of application for clearing any natural water-course, it shall not be necessary to level and survey the same, but simply to divide the water-course into sections.

Award, etc., a lien upon land.

Proviso.

How ditch, etc., may be located,"

agree.

(1784.) SEC. 7. If all the owners of the land to be drained or when all parties benefited by such water-course or ditch shall agree in writing, signed by them, upon the establishment of such water-course or location of such ditch, and its dimensions, and the apportionment of the labor that each tract of land drained or benefited thereby is to bear in opening and maintaining the same, and shall release all claims for compensation for the opening of the same across their land, and shall make such a survey as is provided for in the foregoing section, and shall file such survey and agreement in the clerk's office for such township, and shall fix stakes or monuments as provided in the foregoing section, then such water-course shall be established or ditch located, with all the force and effect, and be as binding in law, as if established or located by the drain commissioner under the provisions of this act; and said clerk shall file and make entries of all such papers, which shall have the same force and effect as provided in the foregoing section for papers filed and entered in his office.

How and when

ditch, etc., locat

(1785.) SEC. 8. When such water-course is established or ditch. ed under section located, and apportionment thereof made, and papers filed as provided in the foregoing section, by agreement of parties or by act of

seven shall be opened.

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