Commissioners of Parks & Boulevards v. Michigan Central Railroad

Montgomery, J. This is a proceeding for condemnation under Act No. 388, Local Acts of 1889, relating to parks and boulevards and other public grounds of the city of Detroit. The petition was filed in the recorder’s court of the city of Detroit on May 22, 1891, and a jury duly impaneled to ascertain and determine the necessity of taking the several parcels of land, and to award the compensation. The cause was heard, the jury found the necessity of taking the land, awarded damages, and the [389] proper order of confirmation was entered, from which the respondents appeal. The first question presented is, does the boulevard act, being Act No. 388, Local Acts of 1889, confer upon the •commissioners the right to condemn and take an easement? Section 15 provides that the commissioners ■may acquire, by legal proceedings,— “Any lands or interest in land which may be found necessary for the opening' of any park and enlargement or extension of any park or boulevard which may here.after be laid out, located, or established.” The act in question relates to a boulevard already ■established under a previous act, which provided for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit, and through portions of the townships of Iiamtramck, Greenfield, and Springwells. It was known to the Legislature that this broad street or boulevard of necessity crossed the right of way of numerous railroad companies.- The term “interest in land” should be so construed as to give •effect to the act, and to further the very evident intent •of the Legislature. The act is far less crude that was the one under consideration in Paul v. Detroit, 32 Mich. 108. It was there claimed that the charter of the city declared all alleys highways, and attempted to take, not the use only, but the fee of the land for them. Justice Campbell, in rendering the opinion of the Court, said: “Such, no doubt, is the reading of section 27, and it is an instance of the carelessness and want of accuracy with which the charter has" teen made incongruous in many respects. But the language of one section cannot be allowed to destroy or confound the remainder. It is perfectly evident that it can never be necessary to take & fee-simple absolute for either alleys or streets. But the omission of that provision will leave the lands taken .subject to all public uses which are appropriate, and it [390] may therefore be disregarded except as to such lands, if any, as require a fee to maintain public uses. * *' * It will be found that the charter contains identical provisions for taking lands for ‘highways, streets, avenues, lanes, alleys, public grounds or spaces/ and that section 27 declares all these alike highways, and declares the interest to be a fee. But this enumeration contains not only different sorts of easements, but also uses entirely inconsistent with any general passage for highway purposes. Grammatically the section means nothing, for it declares that ‘ the same ’ shall become a public highway, when there has been no reference for several sections to the land at all. It can have no consistent meaning except by confining the term ‘ highway * to lands taken for that specific use.” So, in construing the present statute, the provision of section 25 that upon the confirmation of the report, and upon payment, tender, or deposit of the compensation, “all the title of the persons who have been made parties as interested in the lands in question shall become and be vested in the city of Detroit, its successors and assigns, for ever, for the uses and purposes for which the same was taken,” when construed in connection with the previous section, may well be held to mean that the title or interest which is subject to condemnation, and essential for the uses and purposes for which the same was taken, may become vested in the city. The cases cited do not, I think, conflict with these views. In re Amsterdam Com’rs, 96 N. Y. 351, the act in terms provided that the village should become seised in fee of the property so required. The case was not one where the property sought to be condemned was subject to a previous public servitude. In the case of DeCamp v. Railroad Co., 47 N. J. Law, 43, it is held that the term “land” includes the whole estate; but it is said: “The cases in our own courts holding that one rail [391] road company condemning lands already in use by another company will acquire only a right of crossing, and the use of the place of crossing in common with the other company, do not hear on this question. In such cases the legal effect of the condemnation is restricted to a right of way for a crossing, without the exclusive possession and use, not as a matter of choice with the condemning party, but as a legal consequence of the principle of law that the condemnation is inefficacious to destroy or impair the franchises of the other company. State v. Railroad Co., 36 N. J. Law, 181; Railroad Co. v. Long Branch Com’rs, 39 Id. 28.” In the case above referred to (State v. Railroad Go.) the court, in construing the statute which provided that, if a company cannot agree with the owner of lands’ or materials required, a particular description of the land or material required shall be given in writing under oath to one of the justices of the supreme court, who shall cause notice to be given to the persons interested, if known, say: ' “By owner is meant the person having some legal estate which the company proposes by the condemnation to acquire. Under the more comprehensive expression of 'persons interested’ are included not only the person in whom is vested the legal title which the company proposes to acquire as indicated by the application, but also other individuals having some independent right or interest therein not amounting to an actual legal estate, such as an easement of a right of way, inchoate rights of dower or curtesy, or incumbrances.” In my opinion, where, as in the present case, the condition of the title and interests in the property sought to be subjected to the public use is such that a greater estate would be inconsistent with the public use to which it has been dedicated, there is no difficulty in saying that the language employed by the Legislature is sufficiently broad to confer the right to acquire such an easement as is sought to be appropriated in the present case. It is contended that the court was in error in refusing [392] to permit the jury to consider the question of allowing respondents compensation for the expense of erect.ing safety crossing gates. We think the court was in error in this. The doctrine laid down in Grand Rapids v. Railroad Co., 58 Mich. 648, is applicable to this case. It was there said: “ The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against- accident. Under the Constitution there must be just compensation, and this, cannot be denied by law.” Some other errors are claimed, but what we have not noticed must be overruled. For the error pointed out, the verdict and order of confirmation must be reversed, and the case remanded to the jury for further proceedings. Costs of this Court will be allowed respondents. Morse, C. J., and Long, J., concurred.