Cleveland v. City of Detroit

• Decision Date: 08 September 1948
• Docket Number: No. 48.,48.
• Citation: 322 Mich. 172,33 N.W.2d 747
• Parties: CLEVELAND (BOOKSTEIN et al., Interveners) v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

322 Mich. 172

33 N.W.2d 747

CLEVELAND (BOOKSTEIN et al., Interveners)

v.CITY OF DETROIT et al.

No. 48.

Supreme Court of Michigan.

Sept. 8, 1948.

Appeal from Circuit Court, Wayne County, in Chancery; John V. brennan, judge.

Suit by Cynthia Mills Cleveland against the City of Detroit, a municipal corporation, and the F. P. E. Noteholders Corporation, a Michigan corporation, to enjoin prosecution of condemnation proceedings by the city, wherein Jack Bookstein and Louis Lamed, a copartnership doing business as the Book Furniture Company, and others, intervened, and wherein the F. P. E. Noteholders Corporation filed a cross-complaint. From a decree dismissing the bills of complaint, the intervening plaintiffs and the F. P. E. Noteholders Corporation appeal.

Decree affirmed.

Before the Entire Bench.

William Alfred Lucking, of Detroit, for appellant Cleveland.

Lucking, Van Auken, Schumann & Greiner, of Detroit, for appellant F. P. E. Noteholders Corporation.

Raymond J. Kelly, Clarence E. Page, and Helen W. Miller, all of Detroit, for defendant and appellee.

DETHMERS, Justice.

Plaintiff, cross-plaintiff and intervening plaintiffs, hereinafter called plaintiffs, own property which the defendant city sought to acquire by condemnation for the construction thereon of sub-surface bus terminals for the improvement of its street railway system. Plaintiffs, by this suit, seek to enjoin prosecution of the condemnation proceedings and appeal from a decree for defendant dismissing the bills of complaint.

Do Michigan statutes and public policy permit condemnation of the fee for the city's street railway system? It is contended that the city, in the operation of its street railway system, is in the position of a street railway corporation, which, under the provisions of 3 Comp.Laws 1929, § 11304, Stat.Ann. § 22.433, must, when seeking to acquire property by condemnation, proceed in the same manner as provided in the general railroad law and that the latter permits taking only an easement and not the fee. This overlooks the rights of defendant as a city to provide in its charter for the acquisition by condemnation of private property for any public use within its powers, and specifically for a public utility for supplying transportation to the municipality and its inhabitants. 1 Comp.Laws 1929, §§ 2235, 2236, Stat.Ann. §§ 5.2078, 5.2079. These statutes, so far from limiting the city to the acquisition of an easement, clearly contemplate taking the fee.

Does the defendant city's charter avail itself of the permissive provisions of the avove sections of the so-called Michigan home rule act so as to provide for condemning private property for motor bus terminal sites to be used in connection with its street railway system? Cited are the provisions of Title 4, Chap. 13, § 7 of the charter, authorizing the street railway commission to condemn existing street railway property privately owned. It is urged that under the rule ‘ expressio unius est exclusio alterius' these provisions permit condemnation of such existing railway property to the exclusion of condemnation of other property for the extension of existing facilities. It is to be observed, however, that Title 8, Chap. 1, § 1, of the charter provides as follows:

‘The council of the city of Detroit is hereby authorized to take private property for the use and benefit of the public within the limitations of the state constitution, and to institute and prosecute proceedings for that purpose. Provided, that this chapter shall not apply to cases where proceedings have already been instituted under any laws in force prior to the taking effect of this charter; and Provided, further, that nothing herein contained shall be held to abridge the right of said city to take private property for the use and benefit of the public under other acts to which resort may be had for said purpose.’

Proceedings by the defendant city under this section are not barred by the specific provisions of Title 4. Rather, an alternative is afforded. See Union School District of City of Jackson v. Starr Commonwealth for Boys, Mich., 33 N.W.2d 807.

Art. 8, § 23, Michigan Constitution of 1908, empowers cities to own and operate utilities of the type here involved. There can be no doubt that the use of property for transportation of the public is a public use thereof. City of Traverse City v. Township of Blair, 190 Mich. 313, 157 N.W. 81. The statutory and charter provisions above noted authorize acquisition by condemnation for such permissible public use.

Plaintiffs contend that an easement is all the defendant needs for the purposes of such bus terminals and that the taking of the fee would represent an excess taking beyond that required for the avowed public purpose. Art. 13, §§ 1, 2, Michigan Constitution of 1908, vests in a jury of 12 free holders the function of determining the necessity of taking private property for public use. Sutton v. Village of Morenci, 202 Mich. 91, 167 N.W. 958;In re Owen and Memorial Parks, 244 Mich. 377, 221 N.W. 279. The trial court properly held that the question of necessity, being one for the jury in condemnation proceedings, is not open to the court in an action brought to enjoin such proceedings.

It is plaintiffs' position that the proposed bus terminals will require use of only the sub-surface and such portions of the surface as are necessary for ingress and egress or, at the most, the sub-surface, surface and space above the surface to a height of not more than one story, leaving the so-called sky rights above the first story unnecessary to the contemplated public use; that the properties in question are in the heart of the Detroit business district, where lands have a value consisting not only of surface and sub-surface uses, but also that attaching to the use of the space above for buildings many stories in height; that defendant intends to use the upper space areas, not necessary for the projected public use, for private purposes, such as leasing to private business enterprises; that we should, therefore, hold that the taking of the entire fee and of the sky rights is, as a matter of law, not necessary for public purposes. Testimony for defendant is that the condition of the soil is such that the open cut or caisson method rather than tunneling under existing buildings on plaintiffs' properties would be necessary. It is obvious that, after existing buildings have been...