City of Detroit v. Daly

• Decision Date: 02 March 1888
• Citation: 37 N.W. 11,68 Mich. 503
• Court: Michigan Supreme Court
• Parties: CITY OF DETROIT v. DALY ET AL.

37 N.W. 11

68 Mich. 503

CITY OF DETROIT v. DALY ET AL.

Supreme Court of Michigan

March 2, 1888

Appeal from recorder's court of Detroit; GEORGE S. SWIFT, Judge.

In proceedings to condemn lands for a public street, evidence that the proposed improvement would be a convenience to some lots north of the property sought to be taken, and that there were some lots on the south that would be benefited, though not very much, does not show any necessity for taking such property.

The city of Detroit filed a petition in the recorder's court of that city to condemn certain lands belonging to James W Daly, Franklin H. Jerome, James E. Scripps, and George H. Scripps, for the purpose of extending Riopelle street. The proceedings were instituted under Local Acts 1885, p. 338. Section 12 of this act provides that the jury, in determining the amount of damages when only a part of a lot or lots of land is taken, shall take into consideration the amount of benefits, if any, which the portion not taken will receive from the intended improvements, but it shall not be necessary for them to state in their report the damages separately. It was urged that this section contravened the following clauses of the constitution: Article 14,� 11. "The legislature shall provide a uniform rule of taxation." � 12. "All assessments hereafter authorized shall be on property at its cash value." 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." � 15. "Private property shall not be taken for public improvements in cities or villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders and actually paid or secured in the manner provided 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 vicinity of such property." � 14. "The property of no person shall be taken for public use without just compensation therefor." The jury found that it was a public necessity that the land should be taken, and from their finding and award of damages the respondents appealed.

Just compensation means that the person whose property is taken shall have a fair equivalent in money for the injury done him by the taking. Henry v. Railroad, 2 Iowa, 300; Carpenter v. Jennings, 77 Ill. 250. Benefits may be set off against damages to the remaining land, but not against the value of the land taken. Todd v. Railroad Co., 78 Ill. 530; Robinson v. Robinson, 1 Duv. 162; Richmond v. Rogers, Id. 135. Enhancement in value caused by a road cannot be set off against damages for land taken. Koestenbader v. Pierce, 41 Iowa, 208; Whitcher v. Benton, 50 N.H. 25; Atlanta v. Railroad, 53 Ga. 120. Benefits received in common with other lands must be excluded from the calculations. Cooley, Const. Lim. 707; Upham v. Worcester, 113 Mass. 97; Root's Case, 77 Pa. St. 278. There is nothing in this case to show what benefits the jury took into consideration. In condemning private property for public use every material requirement must be observed. Kroop v. Forman, 31 Mich. 144; Power's Appeal, 29 Mich. 505.

While it is unjust that property should be taken for public use it is equally so that an individual should be paid for the benefit he has received by a public improvement, whether it is thrust upon him or not. Nichols v. Bridgeport, 23 Conn. 189; Trinity College v. Hartford, 32 Conn. 452. If the benefits are greater than the damages, the owner has no equitable claim for damages, and it makes no difference whether he is allowed the full value of his property taken and then assessed for the benefits, or whether they are offset against each other in the first place, and only the balance allowed. Livingston v. New York, 8 Wend. 85, 101; In re Twenty-Sixth St., 12 Wend. 203; Betts v. Williamsburgh, 15 Barb. 255. Those benefits directly occasioned to an estate bounding upon the highway and peculiar to the estate itself, as distinguished from other estates not bounding thereon, may be set off against the compensation for the land taken. Upham v. Worcester, 113 Mass. 97; Whitman v. Railroad, 3 Allen, 133. Where benefits equal injuries there can be no damages. White v. Commissioners of Norfolk, 2 Cush. 361; Allen v.

Charlestown, 109 Mass. 243 ; Green v. Fall River, 113 Mass. 262; Wood v. Hudson, 114 Mass. 513. Where the benefits really and substantially resulting to the claimant equal in pecuniary value the value of that which the public has deprived him, they constitute a just and constitutional compensation for the deprivation. McIntire v. State, 5 Blackf. 384; Hagaman v. Moore, 84 Ind. 496; Watson v. Crowsore, 93 Ind. 220. Statutes which allow benefits to be set off against the value of the land taken, and the balance to be assessed, held constitutional in Holton v. Milwaukee, 31 Wis. 37; Pottawatomie Co. v. O'Sullivan, 17 Kan. 58; Trosper v. Saline Co., 27 Kan. 391; Arbrush v. Oakdale, 28 Minn. 61, 9 N.W. 30; Jackson v. Waldo, 85 Mo. 637. In Iowa there is an express constitutional provision that the jury shall not take into consideration any advantage that may result to the owner on account of the improvement. Frederick v. Shane, 32 Iowa, 254.

Corliss, Andrus & Leete, for appellants.

John W. McGrath, for appellee.

CAMPBELL, C.J.

The city of Detroit carried through proceedings in the recorder's court to open Riopelle street, one of its north and south streets from its existing northern terminus on Farnsworth street northerly to Ferry street, a distance of 1,059 and 54-100 feet in length, and 60 feet in width condemning for that purpose not far from an acre and a half of city property. The extension ran through a solid block of land about 338 feet wide, all of which was owned in a body by James E. and George H. Scripps, except a small part at the south end owned by Daly and Jerome. The property through which the street was proposed to be run is a block of rather less than 10 acres, with a width of 338 feet by 1,059 feet. As left by the street opening it leaves two parcels of the same depth and 139 feet wide, one of which is detached from the other and incapable of use with it. The testimony of competent witnesses decidedly predominates in favor of its being more valuable as a single manufacturing lot than in two smaller ones, and that it could only be made available if so divided by further subdivision into small lots, the sale of which is not in demand. The value of the street parcel is placed by most of the testimony at from $3,700 to $6,000, and nowhere less than $3,000. The testimony of any existing necessity is confined entirely to the convenience of the Peninsular Car-Works on the north side of Ferry street, and of the lots on Riopelle street southward. There is no testimony fixing any value of benefits to the car company's lot, and none fixing them very high on the southerly lots. There is no testimony showing that the extension of Riopelle street northward would be necessary to furnish these lots an outlet, and practically the only benefit which the witnesses seem to have regarded was that which would accrue to Messrs. Scripps by cutting up this land so as to spoil it for the uses they have destined it for. The jury were instructed to find the full value of land taken where the whole of a lot was taken; but where part was taken and part left, they were to apply the advantage caused by the street on the value of the land taken, and give only the resulting balance, if any, as damages, not showing, however, what they allowed for the value of the land and how much was deducted. Beyond this they were to assess on the property left its share of the benefits to the assessment district. The result of this process was that the jury found that for the Scripps land no damage should be allowed, but furthermore assessed against it $115, or about one-third of the entire benefits assessed, which amounted to $450, of which the city paid half. All of the benefits assessed were adjudged to Daly and Jerome for so much of these lands as were taken, and they were charged $15 for their share of the benefits. The assessment district was made to include a parcel of the whole width of the Riopelle farm, 171 feet deep, lying on the north side of Ferry street, (the middle of which was opposite the north end of the extension of Riopelle street,) and in addition to this the Scripps, Daly, and Jerome property and three tiers of lots, or a block and a half on either side of Riopelle street as already existing. The lot north of Ferry street belonging to the Peninsular Car Company was assessed $25 and the 30 lots south of Farnsworth street in the blocks lying on Riopelle street were assessed $50, or $1.66 each. The result of all this was not only that the Scripps property was taken without compensation, but they assessed $115 for the privilege of having it taken. They appeal on various grounds, involving, among other things, the right to allow such results to be reached. The injustice of the finding is so monstrous that we should have no hesitation in setting it aside under the general power given us to review such proceedings. But as important principles are involved, coming within a considerable body of our decisions which have been completely disregarded, we are called on to refer again to some of the rules of law which control or should control these proceedings. They have been announced so often that we do not think it necessary to cite the authorities by name. Many of them were cited by counsel; and...