Charter Tp. of Delta v. Eyde

• Decision Date: 11 May 1972
• Docket Number: Docket No. 11113,No. 3,3
• Parties: Petition of the CHARTER TOWNSHIP OF DELTA for Condemnation of Private Property, Plaintiff-Appellee, v. Patrick EYDE et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 918

198 N.W.2d 918

40 Mich.App. 485

Petition of the CHARTER TOWNSHIP OF DELTA for Condemnation of Private Property, Plaintiff-Appellee, v. Patrick EYDE et al., Defendants-Appellants.

Docket No. 11113.

Court of Appeals of Michigan, Division No. 3.

May 11, 1972.

Released for Publication July 20, 1972.

Leave to Appeal Granted Aug. 1, 1972.

Lester N. Turner, Sinas, Dramis, Brake & Turner, Lansing, for eyde.

Hudson E. Deming, Grand Ledge, for Horst.

Harold W. Glassen, Glassen, Parr, Rhead & McLean, Lansing, for appellee.

Before DANHOF, P.J., and BRONSON and TARGONSKI ^*, JJ.

DANHOF, Judge.

The Township of Delta brought this action under M.C.L.A. § 213.21 et seq.; M.S.A. § 8.11 et seq., seeking to condemn an easement across the defendants' property for the purpose of laying a sewer line. The trial court directed a verdict on the question of the necessity of the project but allow the question of the necessity of the route chosen and the amount of compensation to go to the jury. The plaintiff was granted an easement 50 feet wide and sufficient area for construction. Defendants were compensated in the amount of $6,000 and they appeal. We affirm.

The defendants contend that it was error to enter a judgment providing for a 50-foot easement and 'sufficient area for construction.' They argue that the case was tried on the assumption that only a 50-foot easement was being condemned and that the judgment awards plaintiff more than was tried. We do not regard the phrase 'sufficient area for construction' as significant. In order to construct a sewer line the Township must enter upon the defendants' property and dig a hole. Damage caused by these activities is compensable and testimony was received regarding this damage. The phrase 'sufficient area for construction' means only that the Township may enter and dig a hole.

Defendants contend that it was error to allow 10 of the 12 jurors to bring in a verdict, and also, it was error to direct a verdict in a condemnation case. In condemnation cases the rules pertaining to civil trials are to be followed unless a statute specifically provides otherwise. Consumers Power Co. v. Allegan State Bank, 20 Mich.App. 720, 174 N.W.2d 578 (1969), leave to appeal granted 383 Mich. 793 (1970). There being no specific statute providing otherwise, these contentions are without merit.

The defendants contend that the trial court erred in not allowing them to show what the soil conditions were on other parcels of land. They argue that the conditions on the other land tended to show that the route chosen for the sewer was not suitable. They also contend that the conditions on the other land show that the Township did not use proper engineering standards because, in view of the conditions on the land, more soil samples should have been taken on the land involved in this action. The defendants offered no testimony to establish the relevancy of conditions on the other land, and they offered no testimony regarding proper engineering standards. Therefore, these contentions lack merit.

Defendants contend that the trial court erred in giving the following instruction:

'And in determining whether it is necessary for this sewer to follow the route selected by the Township, across the Eyde property, evidence has been offered of possible alternate routes. I instruct you that although other routes equally feasible may be available, that fact in itself is not enough to permit you to say that it is not necessary to follow the route selected by the Township.

'If you find that the Township's decision to follow the proposed route was arbitrary, that it was not adopted in good faith, that it was not based on sound advice and that alternate routes are substantially better, then you should find no necessity to take the property in question.

'On the other hand, if you find the proposed route approaches alternative routes in its feasibility, having regard for the interests of both sides and for the interests of other parties who might be affected by the alternate route, if you find that it was selected not arbitrarily but in good faith, with reliance on sound engineering advice, and such advice is reasonable, then you should find a necessity to take the property in question, the Eyde property along the proposed route.'

We hold that this instruction was proper.

Defendants contend that the trial court erred in instructing the jury that the defendants had the burden of proving that they were entitled to be compensated in the amount they claimed, and that the Township had the burden of proving that compensation should be limited to the amount that it claimed. This instruction was not erroneous. See 27 Am.Jur.2d, Eminent Domain, § 419, p. 308.

The defendants contend that the trial court erred in not allowing testimony regarding the feasibility of developing a lake on their property. This contention is not supported by the record.

The defendants contend that the trial court erred in not allowing one of them to testify regarding the cost of attaching proposed construction on the property to the sewer line. Even if we assume that this testimony is relevant and not unduly speculative, the defendants did not establish that the witness had personal knowledge of the cost.

Defendants' final contention is that the Township of Delta is being allowed to condemn property for the State of Michigan. The defendants present no argument on this question...