United States v. River Rouge Imp. Co.

• Decision Date: 05 December 1922
• Docket Number: 3689,3688,3690.
• Citation: 285 F. 111
• Parties: UNITED STATES v. RIVER ROUGE IMPROVEMENT CO. et al. (two cases). SAME v. DODGE BROS. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

285 F. 111

UNITED STATES v. RIVER ROUGE IMPROVEMENT CO. et al. (two cases).

SAME v. DODGE BROS. et al.

Nos. 3688, 3689, 3690.

United States Court of Appeals, Sixth Circuit.

December 5, 1922

[Copyrighted Material Omitted]

Frank Murphy, Asst. U.S. Atty., of Detroit, Mich., and Alfred J Murphy, Special Asst. Atty. Gen. (Howell Van Auken, of Detroit, Mich., and Wm. D. Riter, Asst. Atty. Gen., of Washington, D.C., on the brief), for the United States.

Chas A. Wagner, Selden S. Dickinson, Paul B. Moody, Clifton G. Dyer, and Wm. F. Connolly, all of Detroit, Mich. (Angell, Turner & Dyer, Campbell, Bulkley & Ledyard, Corliss, Leete & Moody, Edward D. Devine, Donnelly, Hally, Lyster & Munro, Keena, Lightner, Oxtoby & Hanley, Monaghan, Crowley, Reilley & Kellogg, Stevenson, Carpenter, Butzel & Backus, Wilkinson & Hinkley, Charles A. Wagner, and Connolly & Henderson, all of Detroit, Mich., on the brief), for defendants in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge:

The River Rouge empties into the Detroit river along the southwesterly edge of the city of Detroit.

It was usable and was used for the purposes of navigation, but was narrow and winding and with a shallow channel. Projects for governmental improvements of the channel had long been under consideration. The Ford Motor Works and allied interests located a plant upon the river about 4 miles above its mouth, and this location furnished an additional, if not the main, reason justifying extensive and expensive improvements of the channel. The War Department engineers prepared a plan or project for the improvement, which contemplated widening and straightening the channel, so as to make it 290 feet wide, on top, with a depth of 21 feet, and a bottom width of 200 feet, and thus to accommodate the largest freighters running on the Great Lakes. Congress approved the project. Act Aug. 8, 1917, 40 Stat. 256, 258. Following what is said to have become the common precedent in such cases, Congress provided that the United States would pay for the excavation, but that the local interests must furnish the right of way, and that, while the necessary condemnation for widening and straightening purposes might be pursued in the name of the United States, the amount of damages awarded should be paid by the local interests; and the circumstances of this case were such that the 'local interests,' upon which this obligation was placed, were the Ford companies. A condemnation suit, involving all the parcels of property to be taken for widening, was commenced in the District Court at Detroit in the name of the United States; and acting under the emergency clause of the statutes (Sec. 5, Act of July 18, 1918, 40 Stats. 911 (Comp. St. Ann. Supp. 1919, Sec. 9878a)), the War Department proposed to take immediate possession.

A bill for injunction was filed; a preliminary injunction was refused, on condition that the Ford companies should pay into court in the condemnation case a sum sufficient to cover any awards which might be made; an appeal was taken to this court from that refusal; the judges of this court refused to stay the work pending that appeal. Later, the appeal was dismissed, the amounts in question paid into court, and the condemnation case proceeded. It was heard before the court and jury, and the jury made a large number of awards covering the several parcels involved. The property owners, respondents in the proceeding, were content. The United States, while satisfied with the most of the awards, now brings these three writs of error to review sixteen of them. Some of the assignments of error apply with equal force to each award, and the others have only specific application.

The whole proceeding was one for the assessment of damages. The fact that the damages were to be paid by the Ford companies, instead of by the government, was not legally relevant to this assessment, and yet that fact appeared before the jury, both in the examination of jurors as to their fitness to sit and by comment made during the final arguments by counsel for two of the owners. Immediately upon the latter incident, counsel for the United States moved for an order declaring mistrial on account of this misconduct of counsel. Obviously this was the same subject-matter touched by the objections which had been made and the exceptions saved concerning the preliminary examination of the jury. The trial judge announced that he would grant the motion, but that the matter could not be tried piecemeal, and that it would therefore be necessary to begin the trial all over again. Thereupon counsel for United States withdrew their motion and the argument proceeded. It is entirely clear that the United States could not refuse the new trial which was offered to it on account of the error of which it complained on this subject, and proceed with the trial, and speculate as to the result, and then be heard in the Court of Appeals to complain of the same error, if error there was. The assignments as to this subject-matter are overruled.

The matter thought to be most important and chiefly argued for the government pertains to a consideration of those special benefits to the property owners which might rightly be set off against the value of the property taken. To be specific, a typical property owner had 100 feet frontage upon the old River Rouge, extending back 500 feet. The 100-foot strip of land necessary to widen the river was taken entirely from the front part of his property, leaving him with a parcel 400 feet deep fronting upon the improved river, which, in effect, was to be converted into a slip 4 miles long. It was the theory of the United States that the parcel remaining after the improvement was worth more than the original parcel and that there were no net damages to be awarded for the taking. The complaints are that the trial judge both took the wrong view as to the character of the eventual riparian rights and admitted improper evidence in determining their value. To the first contention the owners reply by saying that this statute permitted the jury to consider only direct and special benefits; that the existing benefits here were shared by the typical parcel in the same degree in common with all other property fronting on the improvement, and in a less degree in common with all other property in the neighborhood; and that it would follow that if there were error pertaining to the subject of these benefits, it would be immaterial. We do not find it necessary to pass upon this reply, since we have reached the conclusion that there was no substantial error on this subject.

It is obvious that the riparian rights involved in the frontage upon the improved river would normally be greater than the corresponding ones upon the old river; but it is equally clear that these rights, after the improvement as well as before, were not of the absolute nature pertaining to ordinary land, but carried elements of contingency and possibly fatal germs which must be considered in estimating...