Card v. City of Detroit (In re Land for Recreational Purposes)

• Decision Date: 14 October 1947
• Docket Number: No. 2.,2.
• Citation: 319 Mich. 212,29 N.W.2d 146
• Parties: In re LAND FOR RECREATIONAL PURPOSES. CARD et al. v. CITY OF DETROIT.
• Court: Michigan Supreme Court

319 Mich. 212

29 N.W.2d 146

In re LAND FOR RECREATIONAL PURPOSES.CARD et al.

v.CITY OF DETROIT.

No. 2.

Supreme Court of Michigan.

Oct. 14, 1947.

OPINION TEXT STARTS HERE Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.

Proceeding by the City of Detroit against Enoch Card and others for acquisition of land in blocks bounded by Wisconsin, Cherrylawn, Chippewa, and Norfolk Avenues for recreational purposes. From the judgment, Enoch Card and others appeal.

Judgment set aside and new trial granted.

REID, J., dissenting.

Before the Entire Bench.

Ramon A. Martinez, of Detroit, for respondents and appellants.

William E. Dowling, Corp. Counsel, and Vance G. Ingalls, Asst. Corp. Counsel, both of Detroit, for appellee.

BOYLES, Justice.

The crucial question here is whether the circuit judge erred in refusing to allow the landowners (appellants) to introduce testimony before the jury in condemnation proceedings, to show that the city was already the owner of other lands in the same locality equally suitable for the public purspose intended (in this case, for recreational purposes, to establish a public playground).

In this case, the question of necessity for taking the lands sought to be condemned is solely a question of fact to be submitted to and determined by the jury. The Constitution, Mich.Const.1908, art. 13, § 2, so provides, and this Court has frequently so held. See In re widening of Michigan Avenue, Roosevelt to Livernois, 280 Mich. 539, 273 N.W. 798, and cases cited therein.

The question whether there was any necessity for the city to take the lands here in question, for recreational purposes, if the city already owned other lands in the same locality equally suitable for such purposes,was a proper question for the determination of the jury. The testimony offered by appellants, as bearing on the question of necessity, to the effect that other lands in the vicinity, already owned by the city, would accommodate the needs of the public equally well, was competent and should have been admitted. City of Grand Rapids v. Coit, 149 Mich. 668, 113 N.W. 362;Village of Hamtramek v. Simons, 201 Mich. 458, 167 N.W. 973.

Fort Street Union Depot Co. v. Backus, 92 Mich. 33, 52 N.W. 790, relied upon by the city (appellee) is not in point. The question there was whether the Fort Street Union Depot Company could condemn the lands in question when it was shown it could condemn other lands for its purposes, then owned by another, a railroad company. In the instant case, the city already owns the ‘other lands,’ which the jury might consider were equally sufficient for the recreational purposes sought, thereby negativing the necessity for condemning the lands of the appellants.

This court cannot say how heavily the testimony which the trial judge refused to admit might have weighed in the balance, when the jury were considering the question of necessity. It should have been admitted. Nor do we pass upon the merits of the question whether there is any necessity for condemning the lands in question. That was for the jury. In view of this conclusion, other questions raised by appellants do not require consideration.

The verdict and subsequent confirmation should be set aside and a new trial granted, with costs of this Court to appellants.

CARR, C. J., and BUTZEL, BUSHNELL, SHARPE, NORTH, and DETHMERS, JJ., concurred with BOYLES, J.

REID, Justice (dissenting).

Defendants appeal from a judgment of the recorder's court for the city of Detroit confirming an award for the condemnation of defendants' lands in question for recreational purposes. The city of Detroit (a home-rule city) on November 9, 1945, through its corporation counsel, William F. Dowling, filed its petition in the recorder's court of said city for the condemnation of 30 parcels of land under the provisions of title VIII, chapter 1, of the charter of the city of Detroit relative to condemnation proceedings. The petition requested the court to impanel a condemnation jury to determine among other things, ‘whether it is necessary to take the said private property described in the fifth paragraph of this petition, for the use and benefit of the public; whether the taking of such private property is a necessity for the purpose of making such public improvement.’ The trial of the case began on May 15, 1946, and proceeded during about four weeks time. The jury visited the property on June 10, 1946. On June 12, 1946, the jury found the necessity as claimed by the city, and made an award of $92,950 to the owners, which verdict was confirmed on June 19, 1946, by order of the court. No motion for a new trial was filed.

The plaintiff city contended that the common council of the city of Detroit had determined the necessity of providing much more adequate and enlarged recreational facilities for the neighborhood in question, that in order to create such adequate recreational facilities it became necessary to enlarge the existing playground of the Higgenbotham public school two blocks to the east, taking in a number of lots already owned by the city of Detroit and the 30 parcels of private land involved in this case; that under the provisions of the scavenger sale act the lands (evidently embraced in the same general area) which had already been acquired by the city through scavenger sale must be converted to a public use, otherwise the said lands would revert to the state, and be a loss to the city, and it therefore became a public necessity to condemn the private property involved in this two-block area in order to consolidate all of the land into one recreational unit.

Defendants contended that the condemnation of private property was not necessary because the city of Detroit owned 26 acres of land which it could convert into a park within the same neighborhood and at a distance one block southwest of the proposed site; that the condemnation of the 30 parcels of property involved the eviction and ouster of 22 families and that in itself was a double hardship in view of the fact that the neighborhood is a Negro neighborhood and the 22 Negro families would have a much more acute problem of finding housing than if they were white families; and that as between housing and recreation, the needs of the 22 families represented a more acute problem for the city of Detroit than the problem of furnishing additional recreational facilities.

The testimony offered shows statements by city officials to the effect that the city does not propose to eject the tenants during the housing shortage. Plaintiff claims that two-thirds of the owners have accepted their awards. We would suppose that the lands taken would afford colored children additional playground facilities.

Defendants state that the crux of the case hinges on a proposition...