Backus v. Fort St Union Depot Co, No. 55

CourtUnited States Supreme Court
Writing for the CourtBREWER
Citation42 L.Ed. 853,18 S.Ct. 445,169 U.S. 557
Docket NumberNo. 55
Decision Date07 March 1898
PartiesBACKUS et al. v. FORT ST. UNION DEPOT CO

169 U.S. 557
18 S.Ct. 445
42 L.Ed. 853
BACKUS et al.

v.

FORT ST. UNION DEPOT CO.

No. 55.
March 7, 1898.

Page 558

The defendant in error is a cop oration created under the laws of the state of Michigan, for the purpose of constructing a union depot in the city of Detroit. In order to connect this depot with the railroads desiring to enter, it was necessary to place tracks on River street, and some of the way, at least, these tracks had to be elevated above the grade of the street. As a part of its enterprise the depot company undertook the work of constructing these tracks. The plaintiffs in error were the owners of a manufacturing plant. The individual plaintiff in error held the title in fee to the property, and the corporation plaintiff in error was his lessee. This manufacturing plant fronted on River street, and fronted on that part of it where the tracks were necessarily on a viaduct far above the surface. No part of the ground actually occupied by the plant was sought to be taken, but under the laws of Michigan the owner of a lot fronting on a street owns to the center of the highway, and is entitled to recover damages in case that street is appropriated to the use of a railroad. The third clause in section 4 of the union depot act (1 How. Ann. St. § 3461) provides specifically that the amount of these damages shall be ascertained

Page 559

in the same way as is provided in ordinary cases of condemnation.

The constitution of Michigan provides:

Article 15, § 9: 'The property of no person shall be taken by any corporation for public use without compensation being first made or secured, in such manner as may be prescribed by law.'

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, except when to be made by the state, shall be ascertained by a jury of twelve freeholders, residing in the vicinty of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law.'

The Michigan union depot act was passed in 1881. It prescribes proceedings for the condemnation of private property, substantially similar to those in the Michigan general railroad law, first passed in 1855. Sections 9, 10, and 11 of the depot act, being sections 3466, 3467, and 3468 of 1 How. Ann. St., provide:

§ 3466—Sec. 9: 'The commissioners shall take and subscribe the oath prescribed by article eighteen of the constitution. * * * They may view the premises described in the petition, and shall hear the proof and allegations of the parties, and shall reduce the testimony, if any is taken by them, to writing, if requested to do so by either party, and after the testimony is closed in such case, and without any unreasonable delays, and before proceeding to the examination of any other claim, all being present and acting, shall ascertain and determine the necessity of taking and using any such real estate or property for the purposes described; and, if they deem the same necessary to be taken, they shall ascertain and determine the damages or compensation which ought justly to be made by the company therefor to the party or parties owning or interested in the real estate or property appraised by them. * * * They shall make a report to said court or judge, signed by them, of the proceedings before them, if any, which

Page 560

may be filed with the clerk of the court, either in vacation or term time, or the probate court, as the case may be. * * * In case a jury shall have been demanded and ordered by the court, pursuant to section eight of this act, the said jury shall proceed to ascertain and determine the necessity of taking and using any such real estate or property, and the damage or compensation to be paid by the company therefor, in the same manner and with like effect as is provided in this section in the case of commissioners, and as is further provided in said section eight. * * * The said judge, or a circuit court commissioner to be designated by him, may attend said jury, to decide questions of law and administer oaths to witnesses, and he may appoint the sheriff or other proe r officer to attend and take charge of said jury while engaged in said proceedings. And the jury shall proceed to determine the amount of damages to be awarded, and shall have all the powers hereby conferred upon commissioners; and a report signed by the jury, whether the judge is or is not in attendance, shall be valid and legal. * * *'

§ 3467—Sec. 10: 'On such report being made by the commissioners or jury, the court, on motion, shall confirm the same on the next or any subsequent day when in session, unless for good cause shown by either party; and when said report is confirmed, said court shall make an order containing a recital of the substance of the proceedings in the matter of the appraisal, and a description of the real estate or property appraised, for which compensation is to be made, and shall also direct to whom the money is to be paid, or when and where it shall be deposited by the company. Said court, as to the confirmation of such report, shall have the powers usual in other cases.'

§ 3468—Sec. 11: 'A certified copy of the order so to be made shall be recorded in the office of the register of deeds for said county, in the book of deeds; and thereupon, on the payment or deposit by the said company, of the sum to be paid as compensation for such land, franchise or other property, and for costs, expenses and counsel fees as aforesaid, and as directed by said order, the company shall be entitled to

Page 561

enter upon and take possession of and use the said land, franchise and other property for the purpose of its incorporation; and all persons who have been made parties to the proceeding, either by publication of otherwise, shall be divested and barred of all right, estate and interest in such real estate, franchise or other property, until such right or title shall be again legally vested in such owner; and all real estate or property whatsoever acquired by any company under and in pursuance of this act, for the purpose of its incorporation, shall be deemed to be acquired for public use: provided, the said sum to be paid as damages and compensation, and costs, expenses and counsel fees as aforesaid, shall be paid by the company, or deposited as provided in this act, within sixty days after the confirmation of said report by the said court; and in case said company fail or neglect so to do, such failure or neglect shall be deemed as a waiver and abandonment of the proceedings to acquire any rights in said land or property. Within twenty days after the confirmation of the report of the commissioners or jury, as above provided for, either party may appeal, by notice in writing to the other, to the supreme court, from the appraisal or report of the commissioners or jury; such notice shall specify the objections to the proceedings had in the premises, and the supreme court shall pass on such objections only, and all other objections, if any, shall be deemed to have been waived; such appeal shall be heard by the supreme court at any general or special term thereof, on notice thereof being given according to the rules and practice of the court. On the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners or jury, in its discretion. The second report shall be final and conclusive upon all parties interested. If the amount of the compensation to be allowed is increased by the second report, the difference shall be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or shall be deposited as the court shall direct; and in such case all costs of the appeal shall be paid by the company; but if the amount is diminished, the difference shall be refunded to the company by the party to whom the same may

Page 562

have been paid, and judgments therefor and for all costs of the appeal shall be rendered against the party so appealing. On the filing of the report, such appeal, when made by any claimant of damages, shall not affect the said report as to the right and interests of any party, except the party appealing; nor shall it affect any part of said report in any case, except the part appealed from; nor shall it affect the possession of such company of the land appraised; and when the same is made by others than the company, it shall not be heard except on a stipulation of the party appealing not to disturb such possession during the pendency of such proceedings.'

The proceedings were commenced in the usual form by a petition filed by the depot company, January 24, 1891, in the circuit court for the county of Wayne, in which county the city of Detroit is situate.

The plaintiffs in error (respondents below) demanded a jury. The first hearing commenced on February 25, 1891, and terminated on March 18, 1891, in a disagreement of the jury upon both issues, that of necessity, and that of compensation. A second hearing was had, commencing on June 10, 1891, and resulting on July 16, 1891, in a verdict in favor of the depot company on the question of public necessity, and assessing the damages of the respondents as follows: To Absalom Backus, Jr., as the owner of the fee, $17,850; to the corporation, A. Backus, Jr. & Sons, $78,293. At neither of these hearings was the judge of the circuit court present. Upon the motion of the depot company the circuit court vacated the award of damages, and ordered that a new jury be impaneled. Thereupon the respondents applied to the supreme court of the state for a writ of mandamus to compel the setting aside of this order. That court, on November 19, 1891, issued a peremptory writ of mandamus as prayed for. 89 Mich. 210, 50 N. W. 646. On November 30, 1891, the circuit court, in compliance with this writ, entered an order which, as...

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149 practice notes
  • United States v. Crary
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 24, 1932
    ...L. Ed. 818; Bauman v. Ross, 167 U. S. 548, 593, 17 S. Ct. 966, 42 L. Ed. 270; Backus v. Fort St. Union Depot Co., supra, 169 U. S. 569, 18 S. Ct. 445, 42 L. Ed. It is worthy of notice that the last three cases I have cited are later in date than the Beatty Case. At any rate, motion No. 6 mu......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...in violation of Section 1 of Article 14, Constitution of the United States. McFarland v. American Co., 241 U.S. 79; Backus v. Fort Co., 169 U.S. 557; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1; Lansdown v. Kierns, 303 Mo. 75; Gast Realty Co. v. Granite Co., 240 U.S. 55. (6) The a......
  • United States v. Standard Oil Co. of California, No. E-5.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 4, 1937
    ...effective procedure. Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393, 16 S.Ct. 344, 40 L.Ed. 467; Backus v. Fort St. Union Depot Company, 169 U.S. 557, 571, 18 S.Ct. 445, 42 L.Ed. 853; Crane v. Hahlo, 258 U.S. 142, 147, 42 S.Ct. 214, 66 L.Ed. 514; Hardware Dealers Mut. Fire Ins. Co. v. Glid......
  • Sebastian Bridge Dist. v. Missouri Pac. R. Co., 6051.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 9, 1923
    ...622, 37 L.Ed. 463), yet either may be determined by a properly authorized quasi judicial body (Backus v. Fort Street Union Depot Co., 169 U.S. 557, 18 Sup.Ct. 445, 42 L.Ed. 853; Bauman v. Ross, 167 U.S. 548, 17 Sup.Ct. 966, 42 L.Ed. 270; 20 C.J. 1023, Sec. 414 and citations), or both may be......
  • Request a trial to view additional results
149 cases
  • United States v. Crary
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 24, 1932
    ...L. Ed. 818; Bauman v. Ross, 167 U. S. 548, 593, 17 S. Ct. 966, 42 L. Ed. 270; Backus v. Fort St. Union Depot Co., supra, 169 U. S. 569, 18 S. Ct. 445, 42 L. Ed. It is worthy of notice that the last three cases I have cited are later in date than the Beatty Case. At any rate, motion No. 6 mu......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...in violation of Section 1 of Article 14, Constitution of the United States. McFarland v. American Co., 241 U.S. 79; Backus v. Fort Co., 169 U.S. 557; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1; Lansdown v. Kierns, 303 Mo. 75; Gast Realty Co. v. Granite Co., 240 U.S. 55. (6) The a......
  • United States v. Standard Oil Co. of California, No. E-5.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 4, 1937
    ...effective procedure. Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393, 16 S.Ct. 344, 40 L.Ed. 467; Backus v. Fort St. Union Depot Company, 169 U.S. 557, 571, 18 S.Ct. 445, 42 L.Ed. 853; Crane v. Hahlo, 258 U.S. 142, 147, 42 S.Ct. 214, 66 L.Ed. 514; Hardware Dealers Mut. Fire Ins. Co. v. Glid......
  • Sebastian Bridge Dist. v. Missouri Pac. R. Co., 6051.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 9, 1923
    ...622, 37 L.Ed. 463), yet either may be determined by a properly authorized quasi judicial body (Backus v. Fort Street Union Depot Co., 169 U.S. 557, 18 Sup.Ct. 445, 42 L.Ed. 853; Bauman v. Ross, 167 U.S. 548, 17 Sup.Ct. 966, 42 L.Ed. 270; 20 C.J. 1023, Sec. 414 and citations), or both may be......
  • Request a trial to view additional results

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