Commissioners of Parks and Boulevards v. Moesta

• Citation: 91 Mich. 149,51 N.W. 903
• Court: Supreme Court of Michigan
• Decision Date: 08 April 1892
• Parties: COMMISSIONERS OF PARKS AND BOULEVARDS v. MOESTA et al.

51 N.W. 903

91 Mich. 149

COMMISSIONERS OF PARKS AND BOULEVARDS v. MOESTA et al.

Supreme Court of Michigan

April 8, 1892

Appeal from recorder's court of Detroit; F. H. CHAMBERS, Judge.

Proceeding by the commissioners of parks and boulevards for the condemnation of certain lands to widen a boulevard. From the determination of a jury finding it necessary to take their land and fixing the compensation therefor, Henry Moesta and Bertha Moesta appeal. Reversed.

William Look and H. F. Chipman (Henry M. Duffield, of counsel,) for appellants.

John J. Speed, for appellee.

MONTGOMERY J.

This is an appeal from the determination of a jury finding a necessity for taking certain land of the appellants, for the purpose of widening a boulevard in the city of Detroit, and fixing the compensation therefor. Three questions are presented; First, whether the provisions of Local Act 388 of 1889, relating to the method of ascertaining the necessity to take lands for this purpose are constitutional; second, whether the instructions in the case properly left to the jury the question of necessity for taking the land for the improvement; third, whether the trial judge gave the jury correct instructions as to the rule of damages.

1. The constitution provides, (article 18, � 2:) "When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, * * * shall be ascertained by a jury." Section 16 of the act in question provides that a petition may be filed by the commissioners, praying, among other things, "that a jury may be impaneled to determine the necessity for taking such lands." And in section 21 it is provided that "such jurors shall be sworn to ascertain and determine the necessity for taking the several parcels of land sought to be taken, for the purposes set forth in the petition, and, if taken, to award to each person entitled thereto the proper compensation to be allowed for his or her interests in the lands so taken." If we have correctly understood appellants' contention, it is that, by the terms of the act, the jury is required to assume that the contemplated improvement is a public necessity, and that the only question left for their determination is whether property sought to be taken is essential for use in carrying out the scheme already conclusively determined upon by the commissioners, and hence that the statute conflicts with the constitutional provisions above quoted. We do not so read the statute. On the contrary, we think it very clear that, by the terms of the act, the question of necessity for taking the property, including the public necessity for making the improvement, is as fully committed to the jury as is the question of compensation. A like objection to a similar statute was fully answered in Grand Rapids v. Railroad Co., 58 Mich. 644, 26 N.W. 159.

2. It is contended, further, that the trial judge did not submit to the jury the question of whether it was necessary to take the appellants' land in such manner as to leave the jury to pass upon the question of whether a necessity existed for making the improvement itself,-that is, widening the boulevard,-but that the only question left to the jury to pass upon was whether the taking was necessary for the completion of the boulevard, as determined upon by the commissioners. The particular language complained of is the following: "It appears that the right of way has been obtained from adjoining owners, and the boulevard opened and worked a long distance north of any of the lands sought to be taken in this case, doubtless with the expectation that this portion of the road-way would be opened to the same width as that which is north of it, and the city has purchased the approach to the bridge one hundred and fifty feet in width lying south of Jefferson avenue, probably with the expectation of making the same width for the boulevard lying north of Jefferson avenue. It is not necessary for you to consider whether it is desirable to have a boulevard, but only whether the boulevard, as laid out and opened, should now be widened to its full width at this point, by taking the piece of land which is sought to be taken by the petition in this cause. * * * I have explained to you what the word 'necessity' means. It does not mean that you cannot absolutely get along without it, but whether it is useful is the question, and whether it would be beneficial to have it opened for the purpose of...