I am not in accord with the opinion of Mr. Justice McDONALD in holding that the Beyer "drain," so-called, is not in fact a sewer. The drain law (Act No. 316, Pub. Acts 1923, as amended by Act No. 365, Pub. Acts 1925, and by Act No. 331, Pub. Acts 1927) under which the alleged "drain" was built, did not permit the construction of a sewer. Clinton v. Spencer, 250 Mich. 135. The subsequent amendment (Act No. 318, Pub. Acts 1929), which enlarged the scope of the law so as to include the erection of a sewer, is not applicable. See Warren Township v. Engelbrecht,251 Mich. 608. The question, therefore, narrows itself to whether *Page 7 the structure is a drain as authorized by the then-existing law, or is a sewer.
In Clinton v. Spencer, supra, the structure was clearly a sewer and was so named in the proceedings initiated prior to its construction. In many respects it resembled the "drain" in the instant case. Both structures were very deep and large vitrified crock and reinforced concrete pipe were used in each case. In the instant case, involving the Beyer "drain," provision was made for 344 inlets and 266 manhole covers with perforated tops. Laterals were laid in a sufficient number of subdivision streets so as to make possible house connections for the entire area and "Y's" were placed on all 12-inch laterals to accommodate such connections. Many of them were adapted to the removal of water from septic tanks, as well as for the drainage of house basements. The main structure was a large underground tunnel, laid at an average depth of 13 feet. The diameter of the pipe varied from 48 inches to 84 inches and all joints were sealed with oakum and cement.
Appellants contend that all irregularities in the proceedings to build the drain and lay out the drainage district are subject to attack by certiorari only and not by the bill of complaint brought to set aside the assessment. As the trial judge based his conclusions entirely upon the finding that the structure was a sewer, we shall limit our discussion to this phase of the case. If the structure is a sewer, the drain commissioner was absolutely devoid of jurisdiction in the premises and the entire proceedings were a nullity and subject to attack by the methods employed herein. Township of Lake v.Millar, 257 Mich. 135.
In Clinton v. Spencer, supra, we called attention to the simplicity of the procedure provided by law *Page 8 for the building of a drain. This is undoubtedly due to the fact that the type of structure originally contemplated by law was comparatively inexpensive and the assessments against the land correspondingly small. That portion of the statute requiring a record of the amount of earth to be removed leads to the inference that only an open ditch or simple tile drain was intended. In the present case, as in Clinton v. Spencer,supra, the total drain assessment against the subdivision lots in many instances equaled or exceeded their appraised value. These assessments may not have seriously affected single lots already improved by houses but they became a burden, almost confiscatory in character, when applied to farms and vacant lots. The purpose of the drain in part seems to have been to accommodate houses that had been built, as well as those it was contemplated would be erected within the area drained, a large proportion of which consisted of subdivisions near the city of Ypsilanti. It was believed that a very large industrial plant was about to locate in the vicinity and that this would naturally result in a large demand for houses in the many subdivisions opened. A portion of the drainage district already had adequate facilities but a very large part of it unquestionably required additional drainage, particularly so during certain portions of the year.
Appellants claim that the topography of the district demanded a large, closed drain; that there was water near the surface of the soil; that the lay of the countryside was flat, necessitating the use of extremely large "tile;" that the joints were not tightly sealed and thus permitted the infiltration of surface water along the path of the drain; that the common practice of drain contractors was to provide facilities capable of carrying the flow from the most severe storms likely to be experienced over a 10-year *Page 9 period; that the use of laterals and accompanying Y's was solely to relieve cellars of water; and that the discharge of water from septic tanks, after being purified, was only incidental, and insufficient of itself to justify characterization of the structure as a sewer rather than a drain. The drain law in force at the time provided for water courses or ditches opened and improved for the purpose of drainage and also included tile drains constructed for such purposes, as well as such mechanical devices as would properly purify the flow in the drains.
We appreciate the fact that, owing to changing conditions, the conception of a drain is somewhat subject to variation, but, even making allowances for the problems of a well-populated rural district, possessed of a topography necessitating large and deep closed drains, the law under which the proceedings were had did not permit the construction of a sewer. We agree with the trial judge that the structure was a sewer.
We are impressed with the expert opinions of Mr. Ohr and Mr. Atwell, the latter the engineer who designed the structure. Their testimony is referred to by Mr. Justice McDONALD. The tests were made by Mr. Ohr at the outlet of the sewer and at one other point. He testified as to the large volume and great velocity of the flowage of water and its increase after a rain, concluding therefrom that the infiltration and carriage of ground water, one of the principal duties of a drain, was being accomplished by the structure. On the other hand, it must be remembered that there were 344 inlets as well as 266 manholes leading to the "drain" and, as was shown, there was also a constant overflow of water that found its way into the "drain" from a point on the Michigan Central Railroad tracks at which locomotives received their water supply. There is no showing *Page 10 as to what proportion of the flowage arrived from these sources. Ohr further stated that methylene tests had proved that the water discharged at the outlet was pure and free from contamination. Two other lay witnesses produced samples taken at a considerable distance from the outlet and exhibiting all the characteristics of sewer water.
Mr. Atwell testified that the structure was designed to take care of surface and sub-surface water without any allowance for sewage, but that it was nevertheless capable of carrying sewage. He justified this statement by asserting that the amount of sewage matter likely to enter such a structure would be extremely small in comparison with the amount of water it was designed to receive. A few witnesses testified that they saw feculent matter passing through the "drain" and that very obnoxious odors emanated from certain portions of it.
There is much conflicting testimony as to whether the joints were tightly sealed or not. In drains, as a rule, the joints are either left open or very loosely sealed in order to permit the infiltration of ground water. Storm and sanitary sewers are generally tightly sealed so as to permit the entrance of solids and water only through designated inlets. Appellants claim that water could seep through joints filled with oakum and cement, while appellees show that, if proper use is made of these materials, it is impossible for any considerable amount of water to penetrate. The appellants allege that, at the beginning of building operations, it was not believed necessary to seal the joints, but that the infiltration of fine sand made some sort of loose sealing necessary.
It would not be of much avail to discuss all of the conflicting testimony contained in the two-volume record. We are impressed with the corroborated *Page 11 testimony of witness George Jerome, formerly city engineer for the city of Detroit, and a man of vast experience. Jerome examined the drain and concluded that the joints were well sealed, allowing very little seepage. He went down eight different manholes, traveled some distance through the larger crocks and examined the manholes, which are of the same type as are found in city sewers. He reported noxious odors emanating from the smaller crocks and the presence of some feculent matter. In his opinion, the structure is a combined storm and sanitary sewer. The trial judge, who heard the witnesses testify, came to a conclusion amply supported by the record.
The decree of the lower court should be affirmed, with costs to plaintiffs.
SHARPE, and WIEST, JJ., concurred with BUTZEL, J. CLARK, J., took no part in this decision.