Township of Custer v. Dawson

Brooke, J. Plaintiff township is undertaking to condemn lands belonging to defendants for the purposes of a public highway under the provisions of Act No. 283, Public Acts of 1909 (2 How. Stat. [2d Ed.] §2173 et seq.). Defendants, being dissatisfied with the determination of the highway commissioner, appealed to the township board and thence to the circuit court for Sanilac county. Plaintiff township now seeks to review the determination there reached, upon certiorari. The first question requiring consideration is the propriety of the remedy. We determined in the case of Hartz v. Wayne Circuit Judge, 164 Mich. 231 (129 N. W. 25), that certiorari was the proper remedy under the law as it stood when that decision was rendered. Act No. 195, Public Acts of 1905. It is the contention of defendants that since the enactment of the act of 1909, which in section 8 (2 How. Stat. [2d Ed.] § 2181) provides for an appeal to the Supreme Court, the remedy is changed so that a review may be had now by writ of error only. We cannot agree with this contention. The right to “appeal,” conferred or affirmed by the statute, means no more than that the party aggrieved may, by appropriate writ, review the proceedings in this court. The act of 1909 does not in any manner change the inherent character of the proceeding. It is still “purely statutory and not after the course of the common law.” The writ was providently issued. We will therefore proceed to a consideration of the questions raised. [369] The petition for the writ, which was adopted by the learned circuit judge as his return, recites that: “Upon the trial of said issue the learned circuit judge refused to permit any testimony either as to the benefits that would accrue to the owners of the several parcels of land, or as to the actual damages that would be sustained by the several owners of the land along said route, or as to the value of the easement acquired by the public, or as to the damages that would be sustained by the property owners, or the difference in value between the easement that would be secured by the public and the title in fee simple to the entire strip of land four rods in width over which the easement would extend, but restricted the proofs offered therein by the township to the actual value in full of the entire fee simple of the lands.” The court directed a verdict in favor of the defendants for the several sums, shown by the testimony admitted, to the entire value of the land taken, undiminished by any possible “benefit” to the owners thereof. This ruling of the learned circuit judge, to which exception was properly taken by plaintiff in certiorari, raises two questions: First, as to the proper measure of damages; and, second, whether those damages may be diminished by possible benefits to the owners of the lands taken. Touching the first question, the Constitution (article 13, § 1) provides: “Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.” What is “just compensation” within the meaning of the Constitution? Does it mean in the case here considered, as held by the court below, the full value of the fee? Counsel for defendants contends that the [370] words mean “payment for private property taken for public use at its full value — full compensation (citing Spring Valley Waterworks v. City of San Francisco [C. C.], 124 Fed. 574). We quite agree with this contention. The compensation must be just — full value —for the property taken. What, then, is the property taken in the case at bar? Clearly it is not the fee. That remains in the owner. There are many incidents of such ownership. For instance, if the public discontinues use of the property taken as a highway, it at once reverts to the owner of the adjoining lands from which it was taken. If valuable minerals underlie the highway, they belong, not to the public, but to the owner of the adjoining lands. Should a steam railroad company desire to lay a track upon the highway, the adjacent owner would be entitled to compensation for the new servitude thereby imposed. Other and lesser incidents of such ownership may be found in the right of the owner to the timber growing upon the lands taken, the right to plant trees, etc. It may be said, indeed it is urged by defendants’ counsel, that the easement taken is perpetual in character and practically equivalent to the full value of the fee. It is in effect argued that the ownership of the fee, charged with the easement in perpetuity, carries with it nothing of real value. In many instances this may be true, but there are conceivable cases where the value of the fee retained would be many times greater than the value of the easement taken. But, whether the ownership of the fee carries with it rights of great or little value, those rights are substantive, and their value (if any) should be determined by the jury under proper instructions and deducted from the full value of the fee in order that the public may be compelled to pay no more than “just compensation” for the property taken. Second. Section 23, chap. 7, of the act in question, provides: [371] “If any discontinued highway shall be upon lands through which a new highway shall be laid out, the same may be taken into consideration in estimating the damages sustained by the owner of such lands; and in like manner the benefits accruing to owners of lands by reason of laying out or altering any highway shall be taken into consideration.” The court below held that, where the owner of the lands to be taken made no claim for damages to the land retained as distinguished from the value of the land taken, “the question of benefits does not arise and cannot arise.” And further: “The court holds that the damages in this case are confined to the value of the land and any compensation for any inconvenience the landowner is put to in rearranging fences and possibly bridges. “Mr. Gates (counsel for township) : And eliminates any advantages he can have by the laying out of the highway? “The Court: Too remote. Too intangible to be a reduction of damages.” We think the court was in error as to both propositions. What the statute, under the Constitution, aims to do is to give to the owner fair value for what is taken. In other words, to place him in such a position that the value of what he retains, plus the damages awarded, shall equal the value of his property before the highway was laid out. If the new road adds nothing to the value of his lands by reason of the fact that he has other adequate approaches thereto or for any other reason, then he is not benefited and nothing should be deducted. But if, on the other hand, his remaining lands are increased in value by reason of the improvement, why should he not, in right and justice and within the statutory limitation, be charged with such increase? We can perceive no reason. The language of the statute is unequivocal and is founded on principles of sound public policy and equity. Similar pro [372] visions with reference to drains (section 4328 et seq., 2 Comp. Laws; 2 How. Stat. [2d Ed.] §3385), have long been a part of our law and have received constant and unquestioned application. The difficulty and lack of precision in ascertaining the value of such benefits affords no reason for refusing to permit the jury to consider them. Their ascertainment must rest more or less upon the opinions of witnesses, and in this respect the situation is one constantly confronting us in the assessment of damages. The exact question here involved seems never to have been presented to this court. Many cases are cited by defendants’ counsel in which the question of the value of the lands to be taken is considered, but in none of them is the question of benefits involved. Other jurisdictions, however, have had occasion to review the question, and the following cases will be found to express conclusions in accord with this opinion: Young v. Harrison, 17 Ga. 30; Trinity College v. City of Hartford, 32 Conn. 452; Commissioners of Pottawatomie County v. O’Sullivan, 17 Kan. 58; Hire v. Kniseley, 130 Ind. 295 (29 N. E. 1132). The record shows that defendants did not question the necessity for the improvement which it is conceded is more than one-half mile distant from any parallel highway. The proceedings in the circuit court should be quashed.