Campau v. City of Detroit

• Decision Date: 19 December 1923
• Docket Number: No. 481.,481.
• Citation: 225 Mich. 519,196 N.W. 527
• Parties: CAMPAU v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

225 Mich. 519

196 N.W. 527

CAMPAU

v.CITY OF DETROIT et al.

No. 481.

Supreme Court of Michigan.

Dec. 19, 1923.

Certiorari to Circuit Court, Wayne County; Henry A. Mandell, Judge.

Application by Daniel J. Campau for mandamus asking that the City of Detroit and its Common Council be required to pay sum awarded in condemnation proceedings. There was an order dismissing his application, and he brings certiorari. Reversed and remanded.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Moore & Moore, of Detroit, for appellant.

Water Barlow, of Detroit (Richard I. Lawson, of Detroit, of counsel), for appellees.

STEERE, J.

Plaintiff seeks by certiorari to reverse an order of the circuit court of Wayne county dismissing his application for a mandamus asking that defendants be required to pay or cause to be paid to him the sum of $886,882.50, awarded in condemnation proceedings as compensation for certain land desired by the city, ‘and the interest thereon from the 30th day of June, 1922, as damages for the delay in making such payment.’

The city of Detroit instituted condemnation proceedings in the recorder's court of said city, on September 24, 1921, to acquire for public use as a park certain lands lying within its boundaries. The case is entitled--

‘In the Matter of the City of Detroit to Provide for a Site for Park Purposes and for Municipal Buildings to be Thereon Constructed, Located South of Harper Avenue and East of Conner's Avenue for the Use and Benefit of the Public.’

Plaintiff herein owned most of the tract desired, and was the principal respondent. Three other small pieces were included for which the total award amounted to less than $5,000.

Proceedings were duly had in accordance with provisions of title VIII, c. I, of the City Charter, which follows closely chapter 75, Comp. Laws 1915, § 3376 et seq. On June 30, 1922, a jury called to decide the questions raised found it necessary to take appellant's land for public use, and awarded him as just compensation therefor damages in the sum of $886,882.50, which was upon the same date duly confirmed by a judgment of the court.

Defendant's answer states that the city--

‘has been ready and willing to pay the plaintiff his said award of $886,882.50 ever since June 5, 1923, and has repeatedly offered to him said award since that date, but he has refused to accept payment thereof unless he is paid interest as well thereon at the rate of 5 per cent. per annum from June 30, 1922, the date of the confirmation of the award to him by the court.’

The only question presented to this court for determination is whether appellant is entitled to legal interest on the award from the time of the judgment of confirmation until it is paid or tendered. Section 16 of title VIII chapter I of the city charter of Detroit, relative to payment, is the same as section 16 of the general law and provides as follows:

‘Section 16. Within one year after confirmation of the verdict of the jury, or after the judgment of confirmation shall on appeal be confirmed, the council shall set apart and cause to be provided in the treasury, unless already provided, the amount required to make compensation to the owners and persons interested for the private property taken as awarded by jury, and shall in the resolution setting apart and providing said sum, if not already provided, direct the city treasurer to pay to the persons respectively entitled to the money so set apart and provided, to each his or her proportion, as ascertained and awarded by said verdict. And it shall be the duty of the treasurer to securely hold such money in the treasury for the purpose of paying for the property taken, and pay the same to the persons entitled thereto, according to the verdict of the jury, on demand, and not pay out the money for any other purpose whatever. The council may provide the necessary amount by borrowing from any other money or fund in the treasury, and repay the same from money raised to pay the compensation awarded by the jury when collected, or otherwise, as it may provide. Whenever the necessary sum is actually in the treasury for such purpose, the treasurer shall make and sign duplicate certificates, verified by his oath, showing that the amount of money is in the treasury for payment of the award for the private property taken in the case, giving the title of the case, and shall cause one of the certificates to be filed in the office of the clerk of the court in which the proceedings were had, and the other to be filed with the city clerk, which certificate shall be prima facie evidence of the matters herein stated. Whenever the amount of the compensation is in the treasury, and thus secured to be paid, the council may enter upon and take possession of and use such private property for the purpose for which it was taken, and may remove all buildings, fences and other obstructions therefrom. In case of resistance or refusal on the part of any one to the council or its agents and servants entering upon and taking possession of such private property for the use and purpose for which it was taken, at any time after the amount of the compensation aforesaid is actually in the treasury ready to be paid to those entitled thereto, the council by the corporation counsel may apply to the court, and shall be entitled, on making a sufficient showing, to a writ of assistance to put the city in possession of the property.’

Plaintiff's contention is that confirmation by the court of the award is a judgment, and by express statutory provisions judgments draw interest at the rate of 5 per cent. per annum in this state.

For the city it is contended that this is a special proceeding authorized for the public welfare, not according to the course of common litigation or common law, gives the condemning municipality a year without default after confirmation of the award in which to raise the money and make payment, leaves the condemnee in possession, use, ane enjoyment of the property condemned until paid for, and there is no provision in the charter or act it follows for adding interest to the award.

That this is a judicial proceeding, and confirmation of the award by the court is a judgment is settled law in this state. It is the result of the exercise of judicial authority in which the court finally determines and adjudicates that the sum awarded is at that time just compensation to the owner for his private property. It is immune from collateral attack, is conclusive upon and enforceable at the instance of all parties to the proceeding, and in general ranks with judgments for all practical purposes. Scotten v. Detroit, 106 Mich. 564, 64 N. W. 579;Balch v. Detroit, 109 Mich. 253, 67 N. W. 122;Zoltowski v. Judge of Recorder's Court, 112 Mich. 349, 70 N. W. 1018.

The legal rate of interest in this state is 5 per cent. per annum unless agreed to the contrary by the parties within the maximum permitted. Sections 5997-5999, Comp. Laws 1915. Judgments or decrees bear interest from the date of their rendition, unless otherwise agreed or provided. Sections 12835, 12970, Comp. Laws 1915. In that aspect of the case defendant's counsel contend that the condemnation law otherwise provides by giving the city a year after consummation of the award in which to raise the money, pay the judgment, and take over the property condemned.

Article 5 of the amendments of the Constitution of the United States as amended concludes, ‘nor shall private property be taken for public use, without just compensation.’

Section 1, art. 13, of the Constitution of this state, also provides (italicized as shown) that:

‘Private property shall not be taken by the public nor by any corporation 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.’

Both the charter under which this condemnation was had and the statute of this state upon that subject prescribes that the questions of necessity and just compensation shall be determined and fixed by the award of a jury, upon which the court shall render a judgment of confirmation in the exercise of its judicial functions, with the binding force before pointed out. It amounts to a present forced sale of the property at the then cash value awarded, giving the purchaser, however, on or before a year from date in which to pay for it.

While the purchaser may not take possession until payment is made, it leaves the forced seller in doubtful possession as a tenant by sufferance of the property which he no longer owns, liable to be dispossessed at the option of the purchaser any week day in the year. He cannot sell or lease it, nor improve or till it, with the certainty of harvesting; his limited and beneficial use of it are but from day to day at the pleasure of the purchaser. Whatever his future plans and purposes in regard to his property were they are ended, and if it is unimproved his restricted possession has but little if any value, while the purchaser, having by comdemnation proceedings secured the property and compelled him to part with it at the price fixed by and at the time of the hearing and judgment, can at its option rest secure and have the beneficial use of the sum awarded for a year thereafter. How long it may choose to do so within that limit being unknown, it is conceded future interest on the just compensation awarded at the time of the hearing and judgment cannot be taken into consideration in making the award or by the court in its confirmatory judgment.

Even admitting there can be no interest under the constitutional prohibition until there is a ‘taking,’ either actual or constructive, it can logically be contended that instituting and pressing condemnation proceedings against private property to a point which, through no contractual relations or tort on his part, abridge and destroy the owner's right to full...