Boussneur v. City of Detroit

Carpenter, J. (after stating the facts). 1. The first question for our consideration is that raised by the contention of complainants that the recorder’s court had no jurisdiction because the questions of necessity and valuation of property were determined by two different juries. It is by no means clear that either the Constitution or statutes of this State forbid the practice com [588] plained of. In City of Detroit v. Beecher, 75 Mich. 454 (4 L. R. A. 813), in an appeal from proceedings instituted for the purpose of opening a street, this court affirmed the judgment with the exception of the valuation of three parcels of land owned by appellant. As to this, it directed an appraisement by another jury. Thus the questions of necessity and the valuation of the property were in that case, by the judgment of this court, determined by two different juries. Assuming, however, but not deciding, that such practice is forbidden, it by no means follows that complainant and the intervening complainants can raise the objection. The parties to the condemnation proceedings, viz., the city on the one hand and those whose property is taken on the other, do not raise it. On the contrary they acquiesced in the proceeding. They treated the judgment as a valid and binding judgment. The city paid the award and the property holders accepted it. This affords conclusive evidence that any departure from proper practice was consented to by the parties directly interested in the proceedings. They had a right to consent to this departure and the judgment rendered under these circumstances would be just as binding upon them as if the proceedings had been regular in every particular. The property was therefore taken for street purposes just as effectually as it possibly could be taken under any condemnation proceedings that might be instituted. Complainant and the intervening complainants are specially benefited by the taking of this property and they are therefore taxed to pay a portion of its cost. They are not affected by any irregularities in the taking of that property which did not affect those whose property was taken. As the proceedings were sufficiently regular to take the property, they are sufficiently regular to be the basis of proceedings to raise a tax to be used in paying for it. Complainant and the intervening complainants cannot escape taxation by reason of the non-prejudicial irregularities of which they complain.- This is settled by our [589] decision in Borgman v. City of Detroit, 103 Mich. 361. There, in a street opening case, by consent of all parties to the proceedings, a jury of 11 instead of 13 determined the question of necessity and assessed the value of the property taken. This was clearly a departure from the method provided by the Constitution and statutes. We held that, as this irregularity was waived by the parties to the proceeding, it was not open to objection by those whose property was assessed for the improvement, and a bill filed by them to restrain the enforcement of such an assessment was dismissed. See, also, Scotten v. City of Detroit, 106 Mich. 564; Brown v. City of Saginaw, 10? Mich. 643. I am therefore of the opinion that complainants’ right to relief cannot be based upon the ground that the proceedings in the recorder’s court were fatally defective. On the reargument of this case — which took place after the preparation of this opinion — the point was made by complainants’ counsel that the payment and acceptance of the award cannot be considered, since that took place after the institution of this suit. There might be force in this contention if this opinion proceeded upon the ground that the payment of the award was what passed the title to the condemned property. But the opinion does not proceed upon that ground. It proceeds upon the ground that the condemnation proceedings were valid and effectual because any departure from proper practice was consented to by all the parties interested therein. The payment and acceptance of the award is used merely as evidence of that consent, and I think it might be said it only corroborates other evidence contained in the record. If, however, we assume the payment and acceptance of the award to be the only evidence of consent found in this record, we affirm our right to use it as such evidence, and to hold it conclusive in this case. Under this assumption, at the time this suit was instituted — for it was instituted before the lapse of the time given the city to pay the award — the parties to the proceeding had a right either to raise objec [590] tions or to waive all irregularities occurring therein. Surely complainants By commencing this suit could not deprive these parties of their right to waive said irregularities. They had just as much right to waive them after this suit was commenced as before, and such waiver cured all irregularities in the proceedings, and, under the reasoning of this opinion, made them valid and effectual for all purposes. 2. The effect of exempting the property of St. Leo’s church property. The city authorities exempted this property because they thought they were required to do so by section 3825 and subd. 5 of section 3830, 1 Comp. Laws. Whether or not they were right in this, we are not called upon to determine. If they were wrong it would not entitle complainant and the intervening complainants to relief in this case. For in that case their property should still be assessed for a smaller amount, and, therefore, all they could claim would be a reduction in the amount of their taxes. They make no such claim. To entitle them to equitable relief in such a case, they should have tendered their proportionate share of the taxes and pointed out the extent of their reduction. This they did'not do. They claim relief upon no such ground, and we cannot give it to them. See Grand Rapids, etc., R. Co. v. City of Grand Rapids, 137 Mich. 596, 597. If I am right in the foregoing views, the decree of the circuit court should be reversed and a decree entered in this court dismissing complainants’ bill, with costs of both courts. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred with Carpenter, J. McAlvay, J., concurred in the result.