Commissioners of Parks & Boulevards of City of Detroit v. Michigan Cent. R. Co.
Decision Date | 04 March 1892 |
Citation | 51 N.W. 447,90 Mich. 385 |
Court | Michigan Supreme Court |
Parties | COMMISSIONERS OF PARKS AND BOULEVARDS v. MICHIGAN CENT. R. CO. et al. |
Appeal from recorder's court of Detroit; F. H. CHAMBERS, Judge.
Proceeding by the commissioners of parks and boulevards against the Michigan Central Railroad Company, the Lake Shore & Michigan Southern Railway Company, and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company, to condemn a right of way for the use of a boulevard across the tracks of the defendant companies. Judgment of condemnation. Defendants appeal. Reversed.
Henry Russel, A. C. Angell, E. W Meddaugh, and L. C. Stanley, for appellants.
John J. Speed, for appellees.
This is a proceeding for condemnation under Act No. 388, Local Acts of 1889, relating to parks and boulevards and other public grounds of the city of Detroit. The petition was filed in the recorder's court of the city of Detroit on May 22, 1891 and a jury duly impaneled to ascertain and determine the necessity of taking the several parcels of land, and to award the compensation. The cause was heard, the jury found the necessity of taking the land, awarded damages, and the proper order of confirmation was entered, from which the respondents appeal.
The first question presented is, does the boulevard act, being Local Act 388 of 1889, confer upon the commissioners the right to condemn and take an easement? Section 15 provides that the commissioners may acquire, by legal proceedings "any lands or interest in land which may be found necessary for the opening of any park or enlargement or extension of any park or boulevard which may hereafter be laid out, located, or established." The act in question relates to a boulevard already established under a previous act, which provided for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit, and through portions of the townships of Hamtramck Greenfield, and Springwells.
It was known to the legislature that this broad street or boulevard of necessity crossed the right of way of numerous railroad companies. The term "interest in lands" should be so construed as to give effect to the act, and to further the very evident intent of the legislature. The act is far less crude than was the one under consideration in Paul v. Detroit, 32 Mich. 109. It was there claimed that the charter of the city declared all alleys highways, and attempted to take not the use, only, but the fee of the land for them. Justice CAMPBELL, in rendering the opinion of the court, said: So, in construing the present statute, the provision of section 25 that "upon the confirmation of the report, and upon payment, tender, or deposit of the compensation, all the title of the persons who have been made parties as interested in the lands in question shall become and be vested in the city of Detroit, its successors and assigns, forever, for the uses and purposes for which the same was taken," when construed in connection with the previous section, may well be held to mean that the title or interest which is subject to condemnation, and essential for the uses and purposes for which the same was taken, may become vested in the city. The cases cited do not, I think, conflict with these views. In Re Amsterdam Com'rs, 96 N.Y. 351, the act in terms provided that the village should become seised in fee of the property so required. The case was not one where the property sought to be condemned was subject to a previous public servitude. In the case of Camp v. Railroad Co., 47 N. J. Law, 43, it is held that the term "land" includes the whole estate; but it is said: In the case above referred to (Railroad Co. v. Long Branch Com'rs) the court, in construing the statute which provided that, if a company cannot agree with the owner of lands or materials required, a particular description of the land or material required shall be given in writing under oath to one of the justices of the supreme court, who shall cause notice to be given to the persons interested, if known, say: In my opinion, where, as in the present case, the condition of the title and interests in the property sought to be subjected to the public use is such that a greater estate would be inconsistent with the public use to which it has been dedicated, there is no difficulty in saying that the language employed by the legislature is sufficiently broad to confer the right to acquire such an easement as is sought to be appropriated in the present case.
It is contended that the court was in error in refusing to...
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