Biff's Grills, Inc. v. Michigan State Highway Commission

Citation254 N.W.2d 824,75 Mich.App. 154
Decision Date19 April 1977
Docket NumberDocket No. 28483
PartiesBIFF'S GRILLS, INC., Plaintiff-Appellant, v. MICHIGAN STATE HIGHWAY COMMISSION, Defendant-Appellee. 75 Mich.App. 154, 254 N.W.2d 824
CourtCourt of Appeal of Michigan (US)

[75 MICHAPP 155] Ackerman & Ackerman by Alan T. Ackerman, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Janis Meija, Asst. Atty. Gen., for defendant-appellee.

Before WALSH, P. J., and ALLEN and KAUFMAN, JJ.

ALLEN, Judge.

Plaintiff alleges that its thriving restaurant business at the intersection of Orchard [75 MICHAPP 156] Lake Road and I-696 was effectively destroyed in 1973, when a median strip was installed in Orchard Lake Road. The median prevents northbound traffic from turning left into the plaintiff's establishment which is located on the west side of Orchard Lake Road, just north of I-696. The Court of Claims trial judge announced that he would grant a hybrid accelerated/summary judgment for the defendant after concluding that the plaintiff had failed to state a claim (1) upon which relief could be granted against the State; (2) which was within the subject matter jurisdiction of the Court of Claims. GCR 1963, 116.1(2), 117.2(1). After a last minute motion to amend the complaint was denied, the judge dismissed the action pursuant to his earlier opinion. The plaintiff appeals from the dismissal and the denial of its motion to amend.

The first issue on appeal is whether a private landowner 1 has a cause of action against the government as the result of safety improvements within the existing right of way where the improvements make it more difficult for some customers to reach the landowner's commercial establishment. We conclude that, under existing Michigan precedent, no cause of action was stated in the present case.

Plaintiff's theory is that construction of the median resulted in a constructive taking or inverse condemnation of its easement of access to its property. Michigan recognizes the theory of inverse condemnation as a means of enforcing the [75 MICHAPP 157] constitutional ban on uncompensated takings of property. Const.1963, art. 10, § 2, Thom v. State Highway Commissioner, 376 Mich. 608, 138 N.W.2d 322 (1965); Hill v. State Highway Commission, 382 Mich. 398, 170 N.W.2d 18 (1969). But only when all existing routes of access have been effectively blocked have the courts actually awarded damages. Thom, supra.

The great majority of cases deny recovery. They either ignore the concept of inverse condemnation or pay lip service to it but find it inapplicable. The most common technique is to hold that a private owner has no property interest in the continuance of traffic patterns (so long as ingress and egress routes remain). State Highway Commissioner v. Watt, 374 Mich. 300, 132 N.W.2d 113 (1965). Another frequent statement is that no taking of property occurs when access to property is merely made "inconvenient" as opposed to being completely blocked. Houghs v. State Highway Commissioner,1 Mich.App. 554, 137 N.W.2d 289 (1965). The plaintiff's restaurant remains directly accessible from the southbound lanes of Orchard Lake Road. Access to or from the northbound lanes is indirect and difficult but not impossible. Given the authorities, we are forced to conclude that the plaintiff has suffered an inconvenience, not an unconstitutional taking.

The cases 2 and rationale underlying the controlling precedents have been attacked in Carroll, Compensability for Impairment of Abutting Owner's Easement of Access: A Century of Michigan Supreme Court Analysis, 52 J. Urban L. 505 (1974). Carroll argues that Justice Souris' opinion in Thom v. State Highway Commissioner, supra, [75 MICHAPP 158] should be read as overruling Pontiac v. Carter, 32 Mich. 164 (1875). (See fn. 2).

While that was Justice Souris' intent, he was joined by only two of the other seven members of the Court. 3 Justice Souris later acknowledged that Thom has not overruled Carter. Autio v. Proksch Construction Co., 377 Mich. 517, 537 fn. 15, 141 N.W.2d 81 (1966). And, one year after Thom, the Court made the following statement in State Highway Commissioner v. Gulf Oil Corp., 377 Mich. 309, 315, 140 N.W.2d 500, 503 (1966):

"In (State Highway Commissioner v. Watt, 374 Mich. 300, 307, 132 N.W.2d 113), this Court held that diversion of traffic is not an element of damages in condemnation proceedings. The reasoning of the majority opinion in that case is persuasive here."

We conclude that we have no choice but to hold that the plaintiff's original complaint failed to state a claim upon which relief could be granted. We now must examine the other issues raised by this appeal.

Plaintiff contends that the Court of Claims is the proper forum in which to seek relief where a plaintiff alleges an already accomplished 4 inverse condemnation by the State of Michigan. We agree. Thom v. State Highway Commissioner, supra; Hill v. State Highway Commission, supra. Nevertheless, the trial judge properly dismissed that part of the original complaint which sought mandamus relief to force the defendant to commence formal condemnation proceedings. Mandamus against state [75 MICHAPP 159] officials must be sought in the Court of Appeals. 5 GCR 1963, 714.1(1).

The trial judge erred by failing to recognize his subject matter jurisdiction over an action for inverse condemnation. But the error was harmless since he also held correctly that the original complaint failed to state a claim upon which relief could be granted.

An alternative basis for the grant of accelerated and summary judgment was the judge's opinion that the Oakland County Road Commission, not the State Highway Commission, was the proper defendant because the State only served as a conduit for Federal highway funds. We do not believe that the present record is sufficient to permit an informed ruling on that point. Parallel suits by the plaintiff and the owner of the property against the Oakland County Road Commission are still pending in Oakland County Circuit Court.

After the judge announced his ruling on the defendant's motion for summary judgment, the defendant requested leave to amend its complaint. The amended complaint alleged that the defendant had planned the median strip as far back as 1961 when it purchased property for I-696 from plaintiff's landlord's predecessor in title. Plaintiff's theory is that the former owner would have demanded a higher price if he had known that the remainder of his property would not have perpetual unlimited access to all the traffic lanes on Orchard Lake Road.

The trial judge denied the motion to amend because he found "no grounds indicating that the prior opinion and order of this court should be set [75 MICHAPP 160] aside". We do not believe that the correctness of an initial summary judgment opinion necessarily forecloses amendment of the pleadings especially when the opinion has not yet been implemented by a judgment order. Given Michigan's liberal amendment rules, GCR 1963, 118.1, Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 213 N.W.2d 134 (1973), and the fact that the proposed amended complaint alleged a different cause of action, it would have been safer to allow the amendment and then grant a renewed motion for summary judgment. But the judge did not err. In Fyke & Sons, supra, at 660, 213 N.W.2d at 139, the Supreme Court noted:

"On a motion to amend, a court should ignore the substantive merits of a claim or defense unless it is legally insufficient on its face and, thus, as expressed in Foman v. Davis (371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), supra, it would be 'futile' to allow the amendment. See 6 Wright & Miller, Federal Practice & Procedure, § 1487, p. 432."

Amendment would have been futile in the present case.

Accepting as true the allegations in the proposed amended complaint, the following facts are presented. In 1961, the defendant purchased three acres of land for the I-696 expressway from a remote predecessor in title of the plaintiff's landlord. At that time, the defendant knew that the higher traffic volume caused by the expressway interchange might someday require the installation of a median down the middle of Orchard Lake Road. So, it included in its bid for the three acres an amount which reflected the diminution in the value of the remainder of the property bordering on Orchard Lake Road which would occur if the median were installed. The predecessor in title, [75 MICHAPP 161] being unaware of the median plans, thought that the defendant's offer was very generous and so decided to accept it. If it had known about the median, it would have held out for a higher price and developed the remainder of the property in a manner which would have minimized the impact of the median.

Plaintiff argues that the facts so alleged spell out a cause of action roughly analogous to a breach of contract action for which plaintiff may recover damages despite State Highway Commissioner v. Gulf Oil Corp. supra. We must disagree.

First, we have already shown that present law does not permit an increase in eminent domain compensation because traffic flow past the remainder of a parcel will be diminished or diverted. Therefore, if the allegation that the defendant's offer included compensation for the median is true, the predecessor in title received more than it was entitled to receive. It could not have demanded a higher price because of the median. The plaintiff has cited several cases for the proposition that a remote successor in title (including a lessee) may claim damages when the condemning authority even...

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  • Proctor v. Saginaw Cnty. Bd. of Commissioners
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    ...condemnation as a means of enforcing the constitutional ban on uncompensated takings of property." Biff'sGrills, Inc. v. State Hwy. Comm. , 75 Mich.App. 154, 156-157, 254 N.W.2d 824 (1997). Plaintiffs attempt to argue in these appeals that their inverse-condemnation claims are somehow separ......
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