City of Grand Rapids v. Perkins

• Decision Date: 15 November 1889
• Court: Michigan Supreme Court
• Parties: CITY OF GRAND RAPIDS v. PERKINS.

43 N.W. 1037

78 Mich. 93

CITY OF GRAND RAPIDS v. PERKINS.

Supreme Court of Michigan

November 15, 1889

Case made from superior court of Grand Rapids; EDWIN A BURLINGAME, Judge.

W W. Taylor, (J. W. Ransom, of counsel,) for appellee.

LONG J.

This proceeding was instituted by the city of Grand Rapids under Act No. 124, Pub. Laws 1883, (How. St. 1295 et seq.) It was brought for the condemnation of nine parcels of land for the extension and improvement of one of the streets of the city. The cause was duly brought on for trial before a jury, proofs were introduced on either side of the controversy, and the case given to the jury under the charge of the court. After the jury had been in deliberation for some time, they returned into court and asked for further instructions, and the following proceedings were had: " By a Juror to the Court. I am instructed by this jury to ask you this question: Can we award below the evidence or above it on any one parcel? By the Court. No, sir. By a Juror. That is what we wanted to know. The Court. Your view of the premises is a portion of the evidence in in the case. Mr. Tinker. I don't understand they can take their judgment upon that matter outside of the sworn evidence in the case, and award a judgment below or above that evidence; that is my view of the matter. Mr. Ransom, (city attorney.) As the court says, their view of the premises is a portion of the evidence in the case, and they are entitled to use their own judgment in connection with the evidence in the case,-it may be above or below. The Court. That is all I have to say. You cannot award a greater amount or a less amount than the evidence in the case would warrant. Your view of the premises is evidence in the case. Mr. Tinker. Give me an exception to the ruling." The jury then retired and, after being absent for a time, returned into court, and rendered a verdict for less than the lowest amount fixed by any witness giving his sworn testimony. The jury, under the direction of the court, during the proceedings had viewed the premises. The instruction given the jury, in effect, was that while they could not find the value of any parcel less or greater than the evidence fixed it, yet their view of the premises was a portion of the evidence by which they might be guided in their judgment of value. In effect, the jury were told that although witnesses were sworn in the case, and gave testimony as to the value, yet the jury could disregard this testimony, and find the value according to their own judgment, inasmuch as they had viewed the premises. Counsel for the city contends that this is the correct rule, and cites Sutherland on Damages and Brewer v. Tyringham, 12 Pick. 547, as sustaining this rule, and claims that their findings may be more or less in amount than that stated by any witness.

Section 7 of the statute under which these proceedings are had provides: "The jury shall hear the proofs and allegations of the parties, and, if so ordered by the court, shall go to the place of the intended improvement, in the charge of an officer, and upon or as near as practicable to any property proposed to be taken, and examine the premises." This section further provides: "They shall be instructed as to their duties, and the law of the case, by the judge of the court, and shall retire under the charge of an officer, and render their verdict in the same manner as on the trial of an ordinary civil case," etc. Section 15, art. 15, of the constitution of this state provides: "Private property shall not be taken for public improvements in cities and 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."

The statute above cited provides the mode of obtaining the jury under this provision of the constitution, and prescribes the manner of proceeding before the jury to ascertain the necessity...