Johnstone v. Detroit, G. H. & M. Ry. Co.

• Decision Date: 04 December 1928
• Docket Number: Nos. 142,143.,s. 142
• Citation: 245 Mich. 65,222 N.W. 325
• Parties: JOHNSTONE et al. v. DETROIT, G. H. & M. RY. CO. et al. POHLMEYER et al. v. SAME.
• Court: Michigan Supreme Court

245 Mich. 65

222 N.W. 325

JOHNSTONE et al.

v.DETROIT, G. H. & M. RY. CO. et al.

POHLMEYER et al.

v.SAME.

Nos. 142, 143.

Supreme Court of Michigan.

Dec. 4, 1928.

Appeal from Circuit Court, Oakland County; Fred S. Lamb, Joseph H. Collins, and Glenn C. Gillespie, Judges.

Suits by George H. Johnstone and another and by Frederick C. Pohlmeyer and another against the Detroit, Grand Haven & Milwaukee Railway Company and others, to enjoin defendants from constructing a railroad grade on certain premises without first purchasing plaintiffs' interest therein or acquiring them in accordance with statutes governing the exercise of the right of eminent domain. From a decree for plaintiffs, defendants appeal. Decree modified in accordance with opinion.

Argued before the Entire Bench, except POTTER, J.H. R. Martin and H. V. Spike, both of Detroit, for appellants Detroit, G. H. & M. Ry. Co. and H. W. Nelson Co.

Goodenough, Voorhies, Long & Ryan, of Detroit, Pelton & McGee, and Andrew L. Moore, all of Pontiac, and Harry J. Merritt, of Royal Oak, for appellants F. W. Clawson Land Co. and others.

Wilber M. Brucker, Atty. Gen., and Kit F. Clardy, Asst. Atty. Gen., for appellant Rogers.

Atkinson, O'Brien & Clark, of Detroit, for appellees George H. Johnstone and Sarah D. Johnstone.

Carl Belz, of Detroit (Frank W. Atkinson, of Detroit, of counsel), for appellees Frederick C. Pohlmeyer and Anna C. Pohlmeyer.

FEAD, C. J.

This is an appeal from a decree enjoining defendants from constructing a railroad grade on certain premises without first purchasing plaintiffs' interests therein or acquiring them in accordance with the statutes governing exercise of the right of eminent domain. It involves a phase of the Woodward avenue condemnation proceedings, other aspects of which are reported in Fitzsimons & Galvin v. Rogers, 243 Mich. 649, 220 N. W. 881, in which several of the questions here raised were determined.

Under Act 340, P. A. 1927, the state has contracted to acquire a new right of way for the Detroit, Grand Haven & Milwaukee Railway Company in exchange for the present right of way to be taken for highway purposes. The new right of way runs through Bloomfield Estates subdivision in Oakland county. By general plan, adopted by the common owner in 1915, and evidenced by recorded instrument under seal, the subdivision is restricted exclusively to residences of stated minimum cost, with setback and other requirements. In pursuance of condemnation statutes, the state has purchased several of the lots from the original owner and is proceeding to take others from individual owners for such right of way. Except as to one lot, the conveyances on purchase are made subject to the restrictive covenants. Plaintiffs own lots in the subdivision, located 66 feet or more from the right of way, none of which is being taken by the state. It is conceded that the use to be made of the lots purchased and condemned by the state will constitute a violation of the building restrictions applicable to all the lots.

Parties interested in other subdivisions traversed by the new right of way have intervened and filed briefs. The instruments and conditions affecting their interests are not before us, and we pass upon them only in so far as they may fit into the situation here set out.

The principal question is whether, because of the proposed violation of the restrictions, the state must pay compensation to the owners of other lots in the subdivision, whose land is not actually and physically taken, under our Constitution, art. 13, § 1, which prohibits the taking of private property for public use without just compensation therefor.

In Allen v. City of Detroit, 167 Mich. 464, 133 N. W. 317,36 L. R. A. (N. S.) 890, the city purchased a lot in a subdivision restricted to residences and undertook to build a fire hall thereon. This court held that the city could not erect a building which would be in violation of the restrictions, without release from the other lot owners or condemnation of their interests. Speaking for the court, Mr. Justice Steere said:

‘Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. * * *

‘The contention that the city under its general police power may ignore this building restriction, and erect its fire engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws. Police power is regulative and restrictive only, limiting and dictating the owner's use of property for public safety, but never extends to depriving him of it for public benefit.’

This opinion has been cited with approval by this and other courts many times, and has been regarded as announcing settled law of the state. Defendants, however, urge that the opinion is not in harmony with authority and principle, and should be overruled. Because of the importance of the question, we will re-examine it.

There are not many cases in point. Defendants have cited and rely upon United States v. Certain Lands in Town of Jamestown (C. C.) 112 F. 622, and Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N. E. 505, which deny compensation to owners whose lands are not physically taken, but are covered by common restrictions applying also to lands condemned.

In United States v. Certain Lands in Town of Jamestown, the deeds contained restrictions prohibiting the use of the property for certain specified industrial purposes, for the liquor traffic, and for ‘other noxious, dangerous, or offensive trade or business.’ The government condemned some of the land for coast defense fortification. The District Court held that owners of other lands subject to the common restrictions were not entitled to compensation because--

‘I think this case might well be put upon the ground that the right acquired by the government does not appear to be in any substantial particular inconsistent with the provisions of this condition, or destructive thereof, and that for this reason there is no taking of the claimants' property in this particular.’

The court recognized that--

‘Were we dealing with a condition of a different character, such as a building restriction appurtenant to the claimants' estates, whereby their value was greatly enhanced through the fact that light and air could not be cut off, or perhaps a fine prospect destroyed, a different question would be presented.’

The court entered upon a discussion of public policy in connection with restrictions, and observed:

‘The more reasonable view would seem to be that, if a number of summer residents choose to locate their houses upon these points of land which command the approaches by sea, they take the risk that such natural points for defense will at some time be occupied by the government; and, while they may be entitled to such increased values as result from the expectation that private persons will not carry on offensive occupations on the tract, they are not entitled to the value of a belief or expectation that the government will not apply these natural points of defense to the public use. While the owners may so contract as to control private business, and thereby increase the values of their estates, they are not entitled so to contract as to control the action of the government, or to increase the value of their lands by any expectation or belief that the government will not carry on public works in their vicinity, or that in case it does it will compensate them for the loss due to the defeat of their expectation that it would not. * * * Each landowner holds his estate subject to the public necessity for the exercise of the right of eminent domain for public purposes. He cannot evade this by any agreement with his neighbor, nor can his neighbor acquire a right from a private individual which imposes a new burden upon the public in the exercise of the right of eminent domain.’

The case was reviewed by the Circuit Court of Appeals in Wharton v. United States, 153 F. 876, and was disposed of upon the ground that--

‘The purpose of the United States in acquiring the property does not appear to be in any substantial particular inconsistent with the conditions of the deeds or destructive thereof.’

The court passed by the discussion of the District Court upon the subject of public policy with the comment that the general outlook of conditions is in that direction, and also suggested that building restrictions are probably not true easements or hereditaments.

In Doan v. Cleveland Short Line Ry. Co., the property was restricted to residence purposes. Defendants purchased some of the lots and proceeded to construct a four-track embankment 25 feet high on them. The gist of the decision was:

‘If such restriction is not to be construed as preventing the use of the property for public purposes, then of course there is no violation on the part of the defendant, and it follows that no recovery can be had. If, on the other hand, it is to be construed as prohibiting the use of the property for any purpose other than that of residences, it would prevent a public use of the lots and thereby defeat the right of eminent domain. No covenant in a deed restricting the real estate conveyed to certain uses and preventing other uses can operate to prevent the state, or any body politic or corporate having the authority to exercise the right of eminent domain, from devoting such property to a public use. The right of eminent domain rests upon public necessity,...