Eilender v. City of Pontiac

• Decision Date: 02 December 1963
• Docket Number: No. 39,39
• Citation: 371 Mich. 671,124 N.W.2d 806
• Parties: Charles EILENDER and Esther Eilender, his wife, Plaintiffs and Appellants, v. CITY OF PONTIAC, a municipal corporation, Defendant and Appellee. April Term.
• Court: Michigan Supreme Court

Page 806

124 N.W.2d 806

371 Mich. 671

Charles EILENDER and Esther Eilender, his wife, Plaintiffs and Appellants, v. CITY OF PONTIAC, a municipal corporation, Defendant and Appellee.

No. 39 April Term.

Supreme Court of Michigan.

Dec. 2, 1963.

Milton F. Cooney, Pontiac, for appellants.

William A. Ewart, City Atty., Pontiac, for defendant and appellee.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs owned a triangular piece of property, approximately 14 acres, within the city of Pontiac, with a frontage of 1,334.26 feet on a 20-foot, 2-lane highway, known as M-24 and/or Perry street.

In 1958 the State constructed this 20-foot, 2-lane highway, into a double, 4-lane, divided highway, leaving plaintiffs with 1,190 feet of frontage, and the city of Pontiac's share of this $1,354,653 project was $220,548.21. The city withdrew $101,517.39 from its general fund and levied a special assessment against the abutting property owners for the balance of its share, namely $119,301.12.

Plaintiffs paid their assessment of $5,003.95 under protest and commenced this suit to recover same, alleging:

'The widening of the highway at or in the vicinity of plaintiffs' property, constituted a general public work.

'That the plaintiffs, said property owners, suffered a pecuniary loss by reason of the widening of the said Perry street and the construction of said double highway.

'That the value of plaintiffs' land was not increased in value in any amount by the widening of Perry street, a 2-lane highway to a 4-lane super highway.'

Trial was had before a jury and plaintiffs' 2 witnesses testified there were 'no special benefits--as determined from general benefits' and 'that there was no special benefit.'

Plaintiffs' witness, John D. Millis, admitted that the new double, 2-lane highway, with a 16-foot center median, conferred general benefits to plaintiffs' property and would be an important feature to future use of the property, and that there would be probably a future potential economic factor due to the fact that more people can get in and out of plaintiffs' property with less hazards.

Defendant's witness, Mr. Archer, who is a land appraiser, testified that the construction of the 4-lane highway, with a safety factor, created 'accessibility for ingress and egress' and doubled the value of the property. Another witness for defendant, a former director of highway planning and traffic engineering of the State highway department, testified that the construction of the double, 4-lane highway makes plaintiffs' property 'much more attractive for commercial operation, or even residences, and a safer access to the property than they had before when they had the single.'

At the close of testimony, the trial court submitted 2 questions for the jury's determination:

'1. Did the highway in this case as presently constructed confer additional benefit upon the property of the plaintiffs over and above that conferred upon the general public?

'2. Did the highway in this case as presently constructed increase the value of the plaintiffs' land in an amount at least equal to the sum paid by them as special assessment?'

The jury answered the foregoing questions in the affirmative, and plaintiffs appeal contending: 1) There was no competent evidence offered 'that the reconstruction of a paved state highway, with a divided highway abutting appellants' property, produced a special benefit to appellants, over and above the general benefit enjoyed by the community as a whole,' and 2) That the city of Pontiac was not 'authorized by law to impose a special assessment upon appellants' property.'

The record sustains the conclusion that the jury's verdict is well supported by the evidence, and this record is clearly distinguishable from appellants cited Fluckey v. City of Plymouth, 358 Mich. 447, 100 N.W.2d 486, where ...