
    John Furman v. E. T. Furman, Highway Commissioner, and Charles Braugh, Clerk, of the Township of Dover.
    
      JSigluvays — Discontinuance—Jurisdiction.
    Proceedings for discontinuing a highway are void unless it appears from the return of the commissioner that he viewed the premises, and determined the public necessity for such discontinuance.
    
      Certiorari to review proceedings for discontinuing a highway.
    Argued June 3, 1891.
    Proceedings quashed July 3, 1891.
    The facts are stated in the opinion.
    
      Watts, Bean & Smith, for petitioner.
   Morse, J.

Certiorari to review proceedings taken to discontinue a highway.

The proceedings must be quashed. The record of the commissioner’s action, as found in the office of the township clerk, and all the record made as shown by the return of the commissioner, fails to show that he ever viewed the premises, or determined the public necessity of discontinuing the highway. The record shows a meeting at the house of one George Deline, in Dover, and an adjournment. In the record of this meeting, or the adjourned one, there is no statement of any viewing .of the premises; and, although the commissioner may have meant to return that he determined the public necessity of a discontinuance of the highway, he has not done so, as will be seen by an inspection of such return, which is given below:

“I, the undersigned, commissioner of highways of the township of Dover, in the county of Lenawee, do hereby certify and return at the adjournment meeting, held at the house of Geo. Deline, on the 16th day of February, 1891, that in pursuance of the application hereto attached of Geo. H. Deline, I. N. Warren, Levi J. Deline, J. H. Hawkins, S. N. Palmer, Mathew Garrison, Aaron Jones, M. Jj. Davis, D. H. Warren, Lewis B. Oanniff, Arthur Bovee, Hiram Deline, Milo Bovee, Arthur Manchester, and Ephram Palmer, all of whom are freeholders of the said township, for the discontinuing of the highway therein, known and described as follows: Commencing one-half mile south of the north-east corner of section thirty-two (32); running west one mile, to section line between sections thirty-one (31) and thirty-two (32); which application was presented to I. N. Warren, Levi Deline, Henry Hawkins, Geo. Deline, and Stillwell Palmer; that the discontinuing of said highway was necessary and proper, and the same was thereupon discontinued by me.
“E. T. Furman,
Commissioner of Highways of the Town of Dover.”

We have repeatedly held that it must appear of record that the premises were viewed by the commissioner, and that he found a public necessity for his action. The return that he laid out or discontinued a highway is not sufficient. That fact does not carry with it the presumption that he determined that there was a public necessity for so doing.

The proceedings are quashed, but without costs.

The other Justices concurred.  