Burnett v. Swaney

72 N.W. 599, 114 Mich. 609, 1897 Mich. LEXIS 1140

Opinion

Per Curiam.

The appellant removed proceedings to lay out a highway to the circuit court by certiorari. His grounds of complaint were that proof of service upon him of notice of the meeting to consider the application was not made or filed with the clerk, and that, at the time said proceedings were instituted, another highway, “substantially parallel” with the proposed highway, existed, within a distance of half a mile. The records show that said highway was laid out on the 37th of December, 1894, that the appellant was present and claimed damages, and that no evidence was offered showing the existence of another highway substantially or practically parallel, within such distance, and, further, that the public has expended large sums upon, and used, said highway since. No appeal was taken, and no efforts made to prevent the improvement and use of said highway by the public until March, 1896, when this writ was issued.

It being clear that the appellant had notice and was present at the proceedings, and that he delayed action for more than a year, we think that we should not hold the proceedings invalid under a discretionary writ. The case is within the rule of City of Detroit v. Murphy, 95 Mich. 531, and Baudistel v. Recorder, etc., of Jackson, 110 Mich. 357. See, also, Soller v. Township Board of Brown, 67 Mich. 422.

The judgment of the circuit court is affirmed.