Delta Township v. Eyde

40 Mich. App. 485 (1972) 198 N.W.2d 918 DELTA TOWNSHIP v. EYDE Docket No. 11113. Michigan Court of Appeals. Decided May 11, 1972. Glassen, Parr, Rhead & McLean, for plaintiff. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney, Assistant Attorney General, for the State of Michigan, intervening plaintiff. Sinas, Dramis, Brake & Turner, P.C., for defendants. Before: DANHOF, P.J., and BRONSON and TARGONSKI,[*] JJ. Leave to appeal granted, 388 Mich 756. DANHOF, P.J. The Township of Delta brought this action under MCLA 213.21 et seq; MSA 8.11 et seq, seeking to condemn an easement across the defendants' property for the purpose of laying a sewer line. The trial court directed a verdict on the question of the necessity of the project but allowed the question of the necessity of the route chosen and the amount of compensation to go to the jury. The plaintiff was granted an easement 50 *488 feet wide and sufficient area for construction. Defendants were compensated in the amount of $6,000 and they appeal. We affirm. The defendants contend that it was error to enter a judgment providing for a 50-foot easement and "sufficient area for construction". They argue that the case was tried on the assumption that only a 50-foot easement was being condemned and that the judgment awards plaintiff more than was tried. We do not regard the phrase "sufficient area for construction" as significant. In order to construct a sewer line the township must enter upon the defendants' property and dig a hole. Damage caused by these activities is compensable and testimony was received regarding this damage. The phrase "sufficient area for construction" means only that the township may enter and dig a hole. Defendants contend that it was error to allow 10 of the 12 jurors to bring in a verdict, and also, it was error to direct a verdict in a condemnation case. In condemnation cases the rules pertaining to civil trials are to be followed unless a statute specifically provides otherwise. Consumers Power Co v Allegan State Bank, 20 Mich App 720 (1969), leave to appeal granted 383 Mich 793 (1970). There being no specific statute providing otherwise, these contentions are without merit. The defendants contend that the trial court erred in not allowing them to show what the soil conditions were on other parcels of land. They argue that the conditions on the other land tended to show that the route chosen for the sewer was not suitable. They also contend that the conditions on the other land show that the township did not use proper engineering standards because, in view of the conditions on the land, more soil samples should have been taken on the land involved in *489 this action. The defendants offered no testimony to establish the relevancy of conditions on the other land, and they offered no testimony regarding proper engineering standards. Therefore, these contentions lack merit. Defendants contend that the trial court erred in giving the following instruction: "And in determining whether it is necessary for this sewer to follow the route selected by the township, across the Eyde property, evidence has been offered of possible alternate routes. I instruct you that although other routes equally feasible may be available, that fact in itself is not enough to permit you to say that it is not necessary to follow the route selected by the township. "If you find that the township's decision to follow the proposed route was arbitrary, that it was not adopted in good faith, that it was not based on sound advice and that alternate routes are substantially better, then you should find no necessity to take the property in question. "On the other hand, if you find the proposed route approaches alternative routes in its feasibility, having regard for the interests of both sides and for the interests of other parties who might be affected by the alternate route, if you find that it was selected not arbitrarily but in good faith, with reliance on sound engineering advice, and such advice is reasonable, then you should find a necessity to take the property in question, the Eyde property along the proposed route." We hold that this instruction was proper. Defendants contend that the trial court erred in instructing the jury that the defendants had the burden of proving that they were entitled to be compensated in the amount they claimed, and that the township had the burden of proving that compensation should be limited to the amount that it claimed. This instruction was not erroneous. See 27 Am Jur 2d, Eminent Domain, § 419, p 308. *490 The defendants contend that the trial court erred in not allowing testimony regarding the feasibility of developing a lake on their property. This contention is not supported by the record. The defendants contend that the trial court erred in not allowing one of them to testify regarding the cost of attaching proposed construction on the property to the sewer line. Even if we assume that this testimony is relevant and not unduly speculative, the defendants did not establish that the witness had personal knowledge of the cost. Defendants' final contention is that the Township of Delta is being allowed to condemn property for the State of Michigan. The defendants present no argument on this question and cite authority only for the general proposition that the township cannot condemn land for another unit of government. It is well-settled that mere statement of a position without argument or citation of authority is insufficient to bring the issue before an appellate court. Mitcham v Detroit, 355 Mich 182 (1959); Arrand v Graham, 297 Mich 559 (1941); Dolby v State Highway Commissioner, 283 Mich 609 (1938); State Highway Commissioner v McCarthy, 26 Mich App 500 (1970). Affirmed, no costs, a public question being involved. BRONSON, J., concurred. TARGONSKI, J. (dissenting). For purposes of this dissent we adopt the opening paragraph of the majority opinion as a proper statement of the factual background controlling in this case. We do not go into any discussion of the legal principles enunciated in the majority opinion because we feel *491 this proposition turns on a factual determination regardless of the merits of the principles of law set forth by the majority. A careful reading of the transcript indicates that starting with the petitioner's opening statement the entire matter was submitted to the jury on the issue of "proper amount of money to be paid * * * for 50-foot strip". The petitioner's appraiser offered testimony as to the taking of "50-foot wide easement across this property * * * three acres", and his testimony as to the value was predicated on a 50-foot easement for an approximate three-acre taking. The defendants, on the other hand, presented testimony by one witness that, as the matter was set forth in the petition for the taking of a 50-foot easement plus necessary land for construction would entail the loss of eight acres plus the demolition of trees. However, no testimony was given as to the value of the eight acres nor the value of the trees which would be taken, nor even any testimony as to the number and the type of trees that were to be taken. The record is silent on what constitutes the plus "whatever land might be needed for construction". In view of the petitioner's opening statement, the defendants properly limited their offer of values to the 50-foot strip for easement. The judge, according to the record, originally in chambers in discussion of proposed instructions in preparation of verdict, stated that based on the opening statement, proofs were limited to the 50-foot easement only. However, he changed his mind and permitted the verdict to be prepared to show a taking "as described in petition" and in his charge spoke about "along the proposed route". "The proposed route" and "as described in petition" encompass additional land needed for construction in addition to the 50-foot easement. However, *492 to require the jury to make a decision on that basis on the state of the record in this case required the jury to speculate since the record is silent on the value or the extent or determination of location and amount of land needed for construction, the value of such use for construction and the damage to the defendants by way of tree removal from the portions used for construction. In a condemnation proceeding, a verdict will be reversed on appeal only when the award is not within the range of the testimony. State Highway Commissioner v McCarthy, 26 Mich App 500 (1970). The jury is limited to a consideration of the high and low figures as to value but when no figure is presented then value rests on conjecture and speculation and is improper. In re Dillman, 255 Mich 152 (1931). Based on this one factor, the matter should be reversed and remanded for trial. Consequently, we do not enter into any discussion of any of the other valid objections raised by the defendants. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.