In re Opening First St.

• Decision Date: 06 January 1886
• Citation: 58 Mich. 641,26 N.W. 159
• Court: Michigan Supreme Court
• Parties: In re OPENING FIRST STREET.

26 N.W. 159

58 Mich. 641

In re OPENING FIRST STREET.

Supreme Court of Michigan

January 6, 1886

Appeal from superior court of Grand Rapids.

J.W. Ransom, for plaintiff.

T.J O'Brien, for appellant.

CAMPBELL, C.J.

The appeal in this case is brought to review certain proceedings had under the general law, and not under the charter of Grand Rapids, to open a street in extension of its original bounds. The law in question is one passed in 1883, to provide uniform methods for the appropriation of property in cities and villages, which was approved May 31, 1883, and is printed on pages 1295-1300, 1 How.St.

On the twenty-second of September, 1884, the common council of Grand Rapids adopted resolutions declaring the necessity of opening First street, and widening and extending it of a uniform width of 66 feet from the west line of Broadway to the west boundary of the city; including in the description of the land to be taken a part of appellant's railway, 33 feet by 66 feet. The city attorney was ordered to proceed in the superior court of Grand Rapids, and accordingly brought these proceedings. The appellant appeared by attorneys, and was represented throughout the proceedings. Upon December 30 which was the original day of hearing, various objections were made to the sufficiency of the steps taken to give jurisdiction, and also to the validity of the statute in question. A panel of 24 freeholders was ordered, from which six names were struck on each side. Of the remaining 12, who were duly summoned, 3 were excused and 2 were found not to be freeholders. Five competent talesmen were called, and the jury thus made up acted and found a verdict. Some challenges were made to jurors for remoteness. Evidence was given by appellant of a trust mortgage of its road, and all its property and franchises, to secure the payment of bonds which was in the usual form of railway mortgages, and retained to the appellant the ordinary control of its affairs until dispossessed. Objection was then made that until the trustees were made parties the proceedings were illegal. This was overruled. Two witnesses were sworn upon the damages of appellant, and the questions asked, and allowed against objection to be answered, were general as to "what amount of compensation" ought to be paid to appellant; and the witnesses gave in reply each a single round sum,--one saying $300, and the other $125. The jury gave $200. The jury viewed the premises, but were charged that in fixing the compensation they must be governed by the evidence, and not by their own arbitrary opinions as to what should be awarded. Some further instructions were given on the general question, which are not important as to appellant. The effect of the charge on the duty of the jury in determining necessity will be referred to, as far as required, in considering that feature of the record. After the verdict, a motion for a new trial was made, based upon the legal insufficiency of the action of the common council the disregard by the jury of the evidence, and upon a showing by affidavit that appellant was induced to maintain its track and build a station in that part of the city by an agreement made by the city in conformity with an understanding with the land-owners in the vicinity that First street should not be continued across the railroad. This motion was also denied.

As the record stands, and was presented, we do not think it proper to discuss any fundamental questions not necessary to a decision. While some suggestions are made which are not lacking in force, we are not disposed to enter ourselves, without a more exhaustive argument, upon a search and comparison of all the possible provisions of law that may have a bearing on possible cases. It is the duty of courts to see that no one is wronged by proceedings to deprive him of his freehold, and to this end the appellate power given by the statute is of the broadest character. But it is quite as important to construe laws, where it can be done fairly and without violence to their terms, in such a way as to give their operation for lawful ends, if practicable; and while some statutes are purposely made complete in themselves, and independent of others, nevertheless most of them form part of a system, and may be construed in that view.

The present statute (No. 124 of 1883) was intended to provide a method applicable to cities and villages generally, whereby lands may be condemned for public uses. It is a modification of two successive statutes, passed in 1877 and 1882, to reach the same results. It provides, after the municipality has determined upon the policy of a public improvement, for a jury of freeholders from the municipality to determine the public necessity and the proper compensation for land taken; and it purports to exclude from the consideration of the jury any allowance of benefits to set off against the value. In this respect it is fairer than its predecessors. But it is claimed that the statute is not effectively framed to secure the just results intended.

It is first urged that no showing is required that attempts have been made to get private consent, and failed. Many statutes have required the failure of such an attempt to be set out as a ground of jurisdiction; and it is certainly proper that proceedings in invitum should not be had unless necessary. But we are not able to find authority for holding a law unconstitutional for not expressly providing that this should be made to appear. How far it may become material in the subsequent inquiry, we need not now consider. The objection was not made at an early stage of the proceedings, and it cannot properly be made now.

It is claimed that the...