Ansonia Co. v. City of Detroit (In re Widening of Mich. Ave. from Roosevelt to Livernois Avenues)
| Decision Date | 09 June 1937 |
| Docket Number | No. 110.,110. |
| Citation | 273 N.W. 798,280 Mich. 539 |
| Parties | In re WIDENING OF MICHIGAN AVENUE FROM ROOSEVELT TO LIVERNOIS AVENUES. ANSONIA CO. v. CITY OF DETROIT et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
In the matter of Widening of Michigan Avenue from Roosevelt to Livernois Avenues wherein the City of Detroit filed a petition against the Ansonia Company, a Michigan corporation, and the F. W. Woolworth Company. From an award, the Ansonia Company appeals.
Affirmed.Appeal from Recorder's Court of Detroit; Edward J. Jeffries, judge.
Argued before the Entire Bench, except BUTZEL, J.
Wm. Henry Gallagher and Ben L. Silberstein, both of Detroit, for appellant.
Raymond J. Kelly, Corp. Counsel, and James H. Lee, Asst. Corp. Counsel, both of Detroit, for appellee, City of Detroit.
Bulkley, Ledyard, Dickinson & Wright, of Detroit (Glenn D. Curtis, of Detroit, on the brief), for appellee F. W. Woolworth Co.
Appeal from an award in condemnation arising out of the widening of Michigan avenue, Detroit.
Proceedings were instituted November 19, 1930. December 23, 1935, a jury was duly impaneled and sworn, and the case subsequently adjourned to January 6, 1936. From January 6, 1936, to January 14, the jury was to view the premises. The trial occupied many days from January 20, 1936, until October 13, 1936, when the jury, having reached their verdict, were discharged.
The F. W. Woolworth Company was the holder of premises under a lease executed January 30, 1924, expiring April 30, 1944, under which it was to pay a yearly rental of $5,400, payable in equal monthly payments of $450 each. There was a provision in the lease for the suspension of rent in case of the total destruction of the building. The F. W. Woolworth Company was also the holder of premises under a lease dated September 21, 1923, expiring April 30, 1944, under which it was to pay rent at the rate of $7,500 a year, in equal monthly payments of $625 on the first of each current month. This lease was similar to the one above mentioned. About these leases there is no controversy. Neither lease made provision for a reduction of rent in case of condemnation of the leased property.
The Ansonia Company, a Michigan corporation, became the holder of the title to the premises, and appeals from the award of damages, alleging (1) the jury erred in making an award to the F. W. Woolworth Company for damages to its leasehold; (2) in assessing damages to the leasehold, the jury erred in accepting as a basis of computation the allowance of diminished value of leasehold in direct proportion to the diminution of the area of the land; (3) in assessing the value of said leasehold, the jury erred in failing to reduce the award to the lessee to the rpesent value of the losses it would in the future sustain; (4) in assessing the value of said leasehold, the jury erred in awarding the lessee damage to the leasehold commencing with the date of the verdict rather than the date of the actual deprivation of the full use of the leasehold by the lessee; and (5) the court erred in denying the Ansonia Company's motion for a new trial.
Evidence was offered by the city of Detroit that the title in fee simple to parcel 68, comprising 100.10 front feet and 113 feet depth, was in the Ansonia Company, and that F. W. Woolworth Company occupied 60.1 front feet, to the full depth of said land, as lessee. Evidence of the value of the buildings upon said land was offered by the city showing the first buildings occupied by th Landau Company on 40 feet of land had a present reconstruction cost of $24,150.86, which was depreciated 40 per cent, leaving its present value $14,490.57; that the value of the building remaining after the taking was $4,881.67, and the cost of rehabilitating the same $2,400, giving the value of the building when finally rehabilitated $7,281.67. Deducting the latter sum from $14,490.57 left a balance of $7,208.90. To ascertain the damage, there was added to the latter figure the cost of rehabilitation of $2,400, leaving the damages to the Landau store on parcel 68 as $9,608.90. The second building occupied by the F. W. Woolworth Company had a frontage of 60.1 feet and a reconstruction cost of the part taken of $15,475.18, which was depreciated 40 per cent., which gave a present value of $9,285.11; that the reconstruction cost of the part remaining was $11,987.56, which, depreciated 40 per cent., left its present value $7,192.56. This gave the present value of these buildings as $16,477.67, and the cost of rehabilitating the remainder $2,700, which would bring the value of the remainder as rehabilitated to $9,892.56. And taking the present value of the front as $16,477.67 and deducting the value after rehabilitation of $9,892.56 left $6,585.11, to which was added the cost of rehabilitation of $2,700, making the total damage to this building of $9,285.11.
Combining the value thus arrived at for the two buildings, we have the following figures:
+------------------------------------------+
¦Value of Landau parcel before ¦ ¦
+-------------------------------+----------¦
¦taking ¦$14,490.57¦
+-------------------------------+----------¦
¦Value of Woolworth parcel ¦ ¦
+-------------------------------+----------¦
¦before taking ¦16,477.67 ¦
+-------------------------------+----------¦
¦ ¦30,968.24 ¦
+-------------------------------+----------¦
¦Value of Landau parcel after ¦ ¦
+-------------------------------+----------¦
¦taking ¦7,281.67 ¦
+-------------------------------+----------¦
¦Value of Woolworth parcel after¦ ¦
+-------------------------------+----------¦
¦taking ¦9,892.56 ¦
+-------------------------------+----------¦
¦ ¦17,174.23 ¦
+-------------------------------+----------¦
¦Total value before taking ¦30,968.24 ¦
+-------------------------------+----------¦
¦Less total value after taking ¦17,174.23 ¦
+-------------------------------+----------¦
¦Difference ¦13,794.01 ¦
+-------------------------------+----------¦
¦Add cost of rehabilitation ¦5,100.00 ¦
+-------------------------------+----------¦
¦ ¦18,894.01 ¦
+------------------------------------------+
The city offered as a witness Mr. Edward J. Strata, who testified in relation to the value of the land involved, a summary of whose testimony was as follows:
+-------------------------------------------+
¦Present value of land ¦$118,504.38¦
+-------------------------------+-----------¦
¦Present value of building ¦30,968.24 ¦
+-------------------------------+-----------¦
¦Total value of land and ¦ ¦
+-------------------------------+-----------¦
¦building ¦149,472.62 ¦
+-------------------------------+-----------¦
¦Value of land remaining after ¦ ¦
+-------------------------------+-----------¦
¦taking ¦80,172.08 ¦
+-------------------------------+-----------¦
¦Value of building remaining ¦ ¦
+-------------------------------+-----------¦
¦after taking ¦17,174.23 ¦
+-------------------------------+-----------¦
¦Total value of remainder ¦97,346.31 ¦
+-------------------------------+-----------¦
¦Value of the land and buildings¦ ¦
+-------------------------------+-----------¦
¦taken is ¦52,126.31 ¦
+-------------------------------+-----------¦
¦Cost of rehabilitation ¦5,100.00 ¦
+-------------------------------+-----------¦
¦Total damage from taking ¦57,226.31 ¦
+-------------------------------------------+
Subsequently upon presentation of the case to the jury, counsel for the city agreed the cost of rehabilitation was deducted from the damages and the figures given by the city's witnesses as to the damage to the building should be increased by the cost of rehabilitation in each instance. This would give the damages to the Landau building, according to the city's figures, $12,008.90; and the damages to the Woolworth building $11,985.11.
On June 17, 1936, in the absence of the Ansonia Company, the Woolworth Company introduced testimony as to the damages to its leasehold interest. Such witnesses were cross-examined by counsel for the city. And on June 18, 1936, in the absence of the Woolworth Company, the Ansonia Company offered testimony indicating its land damage to be $80,600; that the damage from the taking would be $76,000; and that the total damage to both buildings was $38,832.76.
The jury returned a verdict fixing the damages to the land at $41,477 and the damage to the buildings at $26,843, making a total award of damages and award for the land and buildings of $68,320. Of this total, the jury awarded to the Woolworth Company for damage to its leasehold the sum of $46,246.50. This award was confirmed by the court, and the real controversy is between the Woolworth Company and the Ansonia Company as to the division of the award of damages and compensation.
Private property shall not be taken for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law. Const.1908, art. 13, § 1.
‘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, except when to be made by the state, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law,’ etc. Const.1908, art. 13, § 2.
Both the necessity for the taking and the compensation, so far as the controversy here is concerned, was to be ascertained by a jury of twelve freeholders residing in the vicinity of...
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