City of Grand Rapids v. Grand Rapids & I.R. Co.

• Decision Date: 05 May 1887
• Citation: 66 Mich. 42,33 N.W. 15
• Parties: In re Petition of CITY OF GRAND RAPIDS, etc., v. GRAND RAPIDS & I.R. CO.
• Court: Michigan Supreme Court

33 N.W. 15

66 Mich. 42

In re Petition of CITY OF GRAND RAPIDS, etc., v. GRAND RAPIDS & I.R. CO.

Supreme Court of Michigan

May 5, 1887

Appeal from superior court, Grand Rapids.

J.W. Ransom, for appellee.

T.J O'Brien and J.H. Campbell, for appellant.

SHERWOOD J.

The petition in this case was filed in behalf of the city on the tenth day of November, 1884, in the superior court of Grand Rapids. It sets forth certain resolutions which had been adopted by the common council, stating that it was made and filed for the purpose of commencing proceedings under act 124, Laws 1883, to take and condemn private property for the purpose of opening First street, in said city; that the property proposed to be taken is on 16 different lots, giving the descriptions thereof; that the "sixth parcel being described as a part of lot 4 section twenty-four, town seven north, range twelve west commencing at the intersection of the west line of lot 4 of said section 24 with the north line of First street produced westerly; thence east on said line of First street, produced 33 feet; thence south, parallel with the west line of said lot 4, 66 feet, to the south of First street produced; thence west 33 feet; thence 66 feet to the place of beginning,--containing 2,178 square feet, more or less." The Grand Rapids & Indiana Railroad Company is the owner of this parcel. The petition stated the names of other owners as respondents, and the other usual statements in such cases, and prayed that a jury might be summoned to determine the necessity for taking the property for the use or benefit of the public, which the petition described, and the just compensation to be made therefor.

The case was before this court at the October term, 1886, on appeal from an order confirming the verdict upon the first trial. The verdict was set aside, and the case sent back for a new trial. See 58 Mich. 641, 26 N.W. 159. Upon the new trial, a verdict was again obtained for the city, and confirmed by the court, and the defendant company appeals to this court. The constitutional questions were substantially disposed of in the decision rendered in the former case.

Four points are now urged by counsel for the defendant against the order made by the judge of the superior court, confirming the verdict of the jury.

It is claimed, first, that the oath administered to the jury was not such as is required by the statute. The oath is given in form and substance, and will be found in section 7, Laws 1883, p. 118. ^[1]

The following was the oath administered: "Each and all of you do solemnly swear that you will well and truly ascertain and determine whether there is a necessity for taking, for the use or benefit of the public, the private property which the petition describes and prays may be taken; and, if you shall determine that it is necessary to take said property, that then you will ascertain, determine, and award the just compensation to be made therefor, and faithfully and impartially discharge all such other duties as devolve upon you in the case, and, unless discharged by the court, a true verdict give, according to law and the evidence, so help you God."

In these cases under this statute it is the duty of the court to instruct the jury as to their duties, and the law of the case, and their oath requires the jury to faithfully and impartially discharge all the duties enjoined upon them. This I think sufficiently includes the necessity for the improvement. And the verdict finds that there is a public necessity for the improvement. The charge clearly shows that the judge of the superior court not only understood the requirements of the law and constitution upon the subject, but fully instructed the jury upon the same. In the first paragraph of his charge he says to them: "There are three principal questions for you to determine: First, the public necessity for opening, widening, and extending the street; secondly, the necessity for taking the property described in the petition for the proposed improvement; thirdly, just compensation to be paid for such private property."

Certainly the defendant had the benefit in the rulings of the court and action of the jury to the extent its counsel claims the constitution gives it. I do not think Powers' Appeal, 29 Mich. 504, nor Bowler v. Perrin, 47 Mich. 155, 10 N.W. 180, apply to this case in the manner urged by counsel for defendant. I agree with Chief Justice CAMPBELL in his conclusion, when the case was presented before, that, "when we take the whole statute together, it evidently means such a finding as the constitution warrants."

The second point relied upon by the defense is that witnesses for the city were permitted "to state the amount of the damage to the appellant by reason of the opening of the street." The testimony of these same witnesses upon the compensation to be made to the defendant, on account of opening the street, was objected to by counsel for appellant, and its admission was one of the points made for reversal in this case before, and the exception was sustained. The questions then propounded to the witnesses were very similar to those in the present case, and, were it not for the explanation given in the answers made by the witnesses in the present case, would fall under the same condemnation, but, with the explanations given and facts stated by them, I do not think the appellant's case was prejudiced by the answers made.

The defendant's third point relates "to the rulings and instructions of the court as to the effect of the contract claimed to exist between the city and the railroad company, wherein the circuit judge held the same to be invalid. ^[1] At the close of the trial, counsel for defendant asked the court to give the following instructions to the jury upon this subject:

"(a) To facts which appear in evidence in this case, and are undisputed by evidence, viz., the action of the common council of the city in the appointment of a committee to confer with the officers of the railroad company, the proposition made by the railroad company through the solicitor, relative to the establishment of a depot on the West side, and the report, preamble, and resolutions submitted by the committee of the common council to the common council, and adopted by that body, and the erection of the depot by the company, and its use of a street, constitute a contract complete in its terms, between the city of Grand Rapids on the one part, and the Grand Rapids & Indiana Railroad Company on the other part.

"(b) By the terms of such agreement, the railroad company agreed to construct and maintain a passenger house on the line of its road between Bridge and First streets, for all local and accommodation trains upon said road, and in consideration thereof it was agreed upon the part of the city (1) that the company should have the right to use and occupy the east half of Seward St., from Bridge St. to a point 185 feet north of Third St., for the purpose of constructing, operating, and maintaining its railroad thereon; (2) that First street should not be continued across the line of said railroad. (3) It appears by the evidence in the case that the company has complied with the agreement on its part. (4) It also appears that the railroad company has, at large expense, constructed and maintained a passenger depot at the place named, since the adoption of the resolution by the council, upon the faith of the agreements made on the part of the city, which I have stated. (5) It also appears that both parties have acquiesced in the agreement and acted under it for nearly thirteen years. (6) I instruct you that the agreement is binding upon both parties, and that it is a bar to the opening of First street from the center line of Seward street east to Alabama street."

Counsel for respondent thereupon presented and read the following further requests, and the same were taken under consideration by the court. The court having refused to give the foregoing six requests, the said respondent requests the court to instruct the jury:

"(7) The agreement which I have stated is valid and binding upon the parties at the least, so far as the agreement to build the depot on the one part, and the right to use and occupy Seward street, are concerned.

"(8) So far as the use of Seward street is concerned, for the purpose named, the agreement vested the railroad company with valuable rights.

"(9) So far as the agreement provides that First street shall not be continued across the line of the said railroad is concerned, it vests the railroad company with valuable rights.

"(10) Although (under the ruling of this court) the agreement cannot operate as a bar to the opening of the street, and the appropriation of the land, if the public necessity requires it, just compensation must be made to the railroad company for its interest in the property taken, and for the damages it will sustain by reason of the opening of the street, and by the depreciation thereby of any rights and any additional expense which will thereby be imposed upon the company.

"(11) The compensation which the railroad company is entitled to receive is (1) the value of the land described in the petition, whatever you determine it to be; (2) for the interference with use of the premises, in connection with its passenger depot, and resulting inconvenience and use of the street at this point, whatever you may find it to be; (3) the cost of building a crossing, which appears to be $21.12; (4) the cost of gates at the crossing, $300; (5) the cost of a tower for gate-keeper, $700; (6) for expense of wages of flagman to attend the crossing, and fuel and lights. *** The undisputed evidence shows that these expenses will, at the lowest figure, be for a

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