Flint & Pere Marquette Railroad v. Norton

31 N.W. 134, 64 Mich. 248

Opinion

Morse, J.

No question is made in this case as to the sufficiency of the petition, notice, etc.; but it is claimed that the commissioner, in proceedings to establish and lay out a highway over the right of way and track of the plaintiff in error, arbitrarily disregarded the rights of the railroad company in his assessment of damages, and failed and neglected to award it just compensation for its damages by rea- . son of the laying out of the proposed highway.

The writ of certiorari was improvidently granted, and ■must be dismissed, with costs. The statute¹ has provided for an appeal from the commissioner to the township board. When the only grievance lies in the • award of damage, the proper remedy is by such appeal. “It must be presumed that, if the commissioner refused to consider the proper ^elements of damage, the board would have done justice on the appeal.” Detroit & B. C. R. R. Co. v. Graham, 46 Mich. 642.

The other Justices concurred.

1 How Stat. § 1303.

See Chicago & Grand Trunk Ry. Co. v. Hough, 61 Mich. 507.