42 N.W. 986 (Mich. 1889), City of Detroit v. Beecher

Citation:42 N.W. 986, 75 Mich. 454
Opinion Judge:MORSE, J. CHAMPLIN, J.
Party Name:CITY OF DETROIT v. BEECHER ET AL.
Attorney:William S. Sheeran, City Atty., and John W. McGrath, City Counselor, for appellee.
Judge Panel:Per MORSE and CAMPBELL, JJ.; CHAMPLIN and LONG, JJ., dissenting. SHERWOOD, C.J., did not sit. CAMPBELL, J., concurred. LONG, J., concurred.
Case Date:June 28, 1889
Court:Supreme Court of Michigan
 
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Page 986

42 N.W. 986 (Mich. 1889)

75 Mich. 454

CITY OF DETROIT

v.

BEECHER ET AL.

Supreme Court of Michigan

June 28, 1889

Appeal from recorder's court of Detroit; GARTNER, Judge.

Proceeding by the city of Detroit to condemn land of Luther Beecher and Mary W. Beecher for the purpose of extending a street. Defendants appeal.

Per MORSE and CAMPBELL, JJ.; CHAMPLIN and LONG, JJ., dissenting.

[75 Mich. 456]

William S. Sheeran, City Atty., and John W. McGrath, City Counselor, for appellee.

MORSE, J.

In this case we are asked to review the proceedings, as far as the rights of the respondents are concerned, in the matter of opening and extending Eleventh street from Leverett street to Michigan avenue in the city of Detroit. The street opening was intended to be conducted under act No. 124, Pub. Acts. 1883, as amended by act No. 48, Pub. Acts 1887. Pub. Acts 1883, p. 115; Pub. Acts 1887, p. 48. In the first place the

Page 987

constitutionality of the law is attacked on several grounds: First. The act is framed so ambiguously that the jury are not required to determine upon the necessity of the proposed improvement, but only on the necessity of taking the land for the improvement: provided the improvement is made as designated. Second. Under the law the jury cannot ascertain whether said improvement is necessary or not. Third. Said act requires the jury to pass upon the necessity[75 Mich. 457] of said proposed improvement, without knowing or considering the public or local benefits which will accrue from the proposed improvements. The fourth objection covers nearly the same ground as the third, and the two will be discussed together. The fifth, sixth, seventh, and ninth relate to the laying of the tax to pay the cost of the improvement, and the compensation awarded to the land-owners, and under our view of the case need not be stated here. The eighth objection is that the statute does not provide for the payment for the land condemned before it is taken, as provided by section 15, art. 15, of the constitution. This identical objection has been heretofore considered by this court in Grand Rapids v. Railroad Co., 58 Mich., at pages 646, 647, 26 N.W. 159, and decided to have no merit.

The first objection, "that the act does not require the necessity of the proposed improvement to be determined by the jury," has been disposed of by this court in Grand Rapids v. Railroad Co., 58 Mich. 641, 646, 26 N.W. 161, where it was held that the statute, as a whole, provided for such a finding as the constitution warrants. Under the second objection we are referred to this provision of the constitution, (section 2, art. 18:) "Where private property is taken for the use and benefit of the public, the necessity for using said property, and the just compensation to be made therefor, shall be ascertained by the jury." It is argued that, under sections 7 and 8 of the act, the jury pass upon the necessity of the proposed improvement before they know anything of the cost of the improvement, and that under the constitution no public necessity can exist for the opening of a street unless the benefit to the public is at least equal to the value of the property taken, and that the oath to the jurors as prescribed by section 7, and the manner in which they shall make up their verdict as provided[75 Mich. 458] by section 8, make it the fist duty of the jury to determine "the necessity for taking such private property for the use or benefit of the public for the proposed improvement, and, in case they find that such necessity exists, they shall award to the owners of said property, and others interested therein, such compensation therefor as they shall deem just." Sections 7, 8, Pub. Acts 1883, pp. 118, 119. It is contended that under these sections the jury are required to determine the necessity for the improvement before they are permitted to determine the cost of the same. We do not so understand the statute. The jury are not precluded from estimating and determining the whole cost of the improvement before they find the necessity of it. The compensation of the individual owners of the property is to be apportioned afterwards, as a natural sequence. It would be out of the natural order to award compensation to the owners before the necessity was established, and the constitution requires no such absurd method of procedure in street openings.

The third and fourth objections urged are that the act does not require the jury to consider the public or local benefits which will accrue from the proposed improvement. Under the theory that the law was defective in this respect, the counsel for the respondents requested the court to instruct the jury that they must find that the public benefits must be equal to the cost of said improvement, and that they must find that the benefits which the owners or occupants of real estate in the vicinity of the proposed improvements will receive, and which the common council of the city of Detroit may deem to be specially benefited and may include in a taxing district, equal the cost of said proposed improvement, or they cannot find the said improvement is a public necessity. The court gave the first part of the instruction, as to the public benefit, but refused the second, as to local benefits. [75 Mich. 459] It is claimed that under this act the jury are only permitted to ascertain the compensation to be paid for the proposed improvement, and are not allowed to consider how much benefit the public generally will receive, or any particular benefit which said improvement will bring to a district in the immediate vicinity of the same, and that without such finding of public and local benefits the necessity for the improvement cannot be constitutionally determined. We think the act does require the jury to consider the public benefit, and it is not objectionable in that respect. It is true it does not state in so many words that the jury must find the benefit to the public to be equal to the cost of the improvement, but, when it provides that the jury "must ascertain and determine whether there is necessity for taking for the use and benefit of the public," it logically follows under the law as laid down in this state that, in order to find such necessity, the jury must determine that the benefit to the public will be equal to the cost of the work; and under a proper charge from the court they did so find in this case. It looks a little like hair-splitting to contend that every detail of the method by which the jury arrive at such necessity must be set out in the law. In regard to the question of local benefits, the law, as amended, (section...

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