Plantenga v. Grand Rapids Terminal Railway Co.

Ostrander, J. Believing that my Brother Kuhn has reached a wrong conclusion, I briefly state my reasons for the belief. The railroad in the street is not a nuisance, because it is permitted to be there by competent authority. The fact that before putting it there the damages to plaintiffs were not ascertained and paid does not make it a nuisance. Payment will not transform a nuisance into a lawful structure. Therefore the idea that defendant has created a nuisance ought not to enter into [663] the reasoning upon which decision is based. None of plaintiffs’ land was taken or was invaded. If plaintiffs are damaged, it must be because the use of the property is affected by a lawful, proper operation of the road. It is laid on the side of the street opposite to their premises. It is claimed that it affects the use to which the property had been and is devoted, namely, the use for residence purposes. Defendants claimed that the property had no appreciable value for use as a residence and that for other, as for manufacturing, purposes, its usefulness and value was increased. Upon the first point, or claim, the testimony presented a question of fact which was submitted to the jury. Upon the second point, or claim, the court refused to receive testimony. “The only question of fact,” the court told the jury, “for you to consider, is whether the building and operation of this side track depreciated the value of the plaintiff’s property for residence purposes.” Again, the jury was told: “The question is, if that property had any value for residence purposes before the track was built, has that value been reduced by a proper operation of this side track in the usual way? * * * You are not authorized or permitted to take into consideration the use of the property for any other purposes except for rental purposes, rental residence purposes, and to what extent the building of the railroad depreciated the value of that property for those purposes; that is, you are not to take into consideration the value of the property for factory purposes.” Plaintiffs are contented with these instructions. They say in the brief that they base their claim for daiqages “precisely on the doctrine laid down in Keyser v. Railway Co., 142 Mich. 143 [105 N. W. 143].” The defendants are asserting that the rule laid down is too narrow, since it prevented them from showing that the presence of the road in the street added ma [664] terially to the actual selling value of the property for purposes other than residence. In argument they base their contention in this behalf on the Constitution and statute and the meaning of the words “just compensation” used in each. The elements of plaintiffs’ damages are the same in this action as they would be if condemnation proceedings had been instituted. In similar cases, while the right to recover once for all the damages sustained has sometimes been refused because of want of legislative authority to use the highway (Hoffman v. Railroad Co., 114 Mich. 316 [72 N. W. 167]); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640]), the measure of recoverable damages has be'en in all the cases the reduction in rental value. No other rule for measuring the damages has been suggested. No other damages have been sustained in the instant case. Just compensation is given when the rule is applied. No reason exists, none that I can discover, for changing the rule. The court below employed it, and in doing so committed no error. The serious question in this case relates to the amount of the recovery. The judgment is for $1,000, and it is contended that, if there is any testimony which supports it, it is nevertheless grossly excessive and contrary to the great weight of evidence. It cannot be said that the testimony relied upon by plaintiffs and criticized by defendants is incompetent. The trial judge was of opinion that the verdict was not so clearly against the weight of evidence as to justify setting it aside and, while I am impressed that it is a large verdict, I am not satisfied that the conclusion of the court was wrong. No prejudicial error appears, and therefore the judgment must be affirmed. Stone, C. J., and Bird, Moore, and Steere, JJ., concurred with Ostrander, J.