City of Grand Rapids v. Barth

• Decision Date: 04 September 1929
• Docket Number: No. 35,June Term.,35
• Citation: 226 N.W. 690,248 Mich. 13
• Parties: CITY OF GRAND RAPIDS v. BARTH et al.
• Court: Michigan Supreme Court

248 Mich. 13

226 N.W. 690

CITY OF GRAND RAPIDS

v.BARTH et al.

No. 35, June Term.

Supreme Court of Michigan.

Sept. 4, 1929.

Appeal from Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Condemnation proceeding by the city of Grand Rapids for widening of Fulton street. From the order of confirmation, awarding damages, Louis Barth and others appeal. Affirmed.

Argued before the Entire Bench. J. T. & T. F. McAllister and Steketee & Steketee, all of Grand Rapids, for appellants.

Ganson Taggart and Fred N. Searl, both of Grand Rapids (Stuart E. Knappen, of Grand Rapids, of counsel), for appellee.

Trowbridge, Lewis & Watkins, of Detroit, amici curiae.

NORTH, C. J.

The city of Grand Rapids has instituted condemnation proceedings incident to acquiring land to be used in widening Fulton street, between East Park Place and Barkley avenue. Fulton street is one of the main thoroughfares leading to the business section of Grand Rapids. It is 66 feet wide, and the city proposes to add a 16-foot strip of land on the northerly side, and is planning to reserve a parking lane on each side of the widened street. The defendants are the owners of separate lots, approximately 185 feet deep, fronting on the northerly side of Fulton street; each parcel is a corner lot and a little over 100 feet in width. The jury impaneled found in favor of the petitioner as to the matter of necessity and awarded damages to Dr. and Mrs. Barth in the sum of $20,917.70, and to Miss Godfrey $12,348.65. The defendants have appealed from the order of confirmation. While there are 49 assignments of error, the matters in controversy are submitted in appellants' brief under the following headings:

I. ‘The city of Grand Rapids has no authority to condemn and take defendants' property * * * for the sole purpose of creating parking space thereon.'

II. ‘The defendants in this cause did not receive just compensation for their property, but the rule applied and the amount allowed was in direct violation of the decisions of this court, and amounted to a confiscation of defendants' property without just compensation.'

Appellants urged in the trial of this case that there was no necessity for taking more than 8 feet of land, which, by reason of the location of their buildings, would result in much less damage to their respective properties than the taking of the front 16 feet. They also insisted that the city did not have the power to take their property to widen a street, and thus provide a parking place, when by prohibiting or limiting parking the present thoroughfare would be wide enough to accommodate street traffic. We find no justification in this record for disturbing the determination of the jury as to the necessity for this public improvement, and of taking 16 feet off of the front of defendants' properties therefor. The amount of land to be taken is, to a large extent, within the discretion of the condemnor. Panfil v. City of Detroit, 246 Mich. 149, 224 N. W. 616.

In their brief appellants have thus framed and commented on the other question above suggested: ‘* * * We have been unable, like the city, to find any direct decision on the question of whether the public can condemn private property for parking space only. * * * We respectfully submit that, as a matter of law, this right should not and does not exist.'

It does not seem to us that dearth of adjudicated cases directly in point render the rule of law obscure or doubtful. From the day of the ox cart there have been maintained in the public highways hitching posts and rails, by which provision was made for the leaving of animal-drawn vehicles at proper places on public thoroughfares. The demand of our motor age has greatly increased the necessity for space in the public streets for leaving vehicles. This right is of importance to the tradesmen along the street, as well as to the traveler thereon. One would hardly have the temerity to question that such a use is a lawful use of the highway. Its regulation is a matter for the exercise of police power, with which, in the absence of abuse, courts should not interfere. In the future this space, which the city seeks to add to Fulton street, may or may not be used for parking. The land was taken ‘for street purposes.’ But parking is a proper use of the highway, and, if necessity therefor exists, the right of eminent domain may be exercised to establish or widen highways adequate for this purpose. The taking of the land for highways is not limited to that necessary for actual travel. City of Detroit v. Hartner, 227 Mich. 132, 198 N. W. 839.

A more important question is presented by defendants' claim that they ‘did not receive just compensation for their property.’ The rule as to the measure of damages adopted by the trial court is clearly stated in his charge to the jury, from which we quote:

‘* * * In determining what is a fair compensation to be awarded, you are not to decrease the amount of your award by the benefit that may accrue to the property of these respondents that is left after the street is widened, nor are you to increase your award by reason of the fact that they will be called upon to pay an assessment for making the improvement. You are simply to award to them the full, fair market price of the value of the land that is taken. * * *'

‘The measure of damages for the land that is taken is not the value of the 16-foot strip considered by itself alone. The measure of damages is the difference between the value of the property as it now is, with nothing taken, and the property with 16 feet taken from its front, and without taking into consideration any benefit to the property that remains accruing by reason of the widening of the street. In other words, if the land were now 100 feet deep-which seems to be the figure that has been taken for convenience-and 16 feet of it were taken, the measure of damages would be the difference between the value of the same piece of land with the same street in front of it, not widened, with a depth of 100 feet, and the value of the same land, with the street not widened, with a depth of 84 feet. Now that is the rule of damages. * * *'

‘As regards the land taken, therefore, if you find that the improvement is a necessary public improvement, you will award to the owners the fair market value of the 16 feet proposed to be taken, and if the value of the remainder of the property is decreased by reason of cutting off the 16 feet, also whatever you may find to be the decrease in the value.'

‘On some of these parcels there are buildings, and a portion of some of these buildings will have to be removed if the proposed improvement is made. The rule of damages in regard to buildings is as follows: If the portion remaining, after the strip is taken, is of great value, and there can be advantageous reconstruction, rearrangement and new adjustment, then the cost of altering the building and all consequential damages because of such alteration, plus the value of the part taken, furnishes the rule for measuring the compensation to be awarded for taking part of the building. In determining the amount of damages the jury must either consider the remainder worthless and allow the value of the whole building, or consider what can be done with the remainder and the cost of doing it.'

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