Appeal
from superior court of Grand Rapids; Edwin A. Burlingame
Judge.
McGRATH
C.J.
This is
a proceeding to open Campau street, now a cul-de-sac, through
to Ferry street. Error is assigned upon the admission of the
opinions of witnesses as to the necessity of the proposed
opening. Eight witnesses were asked one of the following
questions: "What have you to say about its being or not
being a necessary public improvement? From your knowledge of
that part of the city, and your acquaintance with its past
and present condition, and its present growth, state to the
jury what reasons you have why the opening of this street is
or is not a necessary public improvement, if you have any
reasons to give." One witness answered as follows
"Well, sir, I consider the opening of Campau street as
the next improvement to the taking of Grab Corners in the
center of the city. I am satisfied, from my knowledge of the
neighborhood and the condition of the property and the
business there, that it is a necessary public improvement. I
believe that the people who are directly interested are
sufficient, enough of them, with those whose use the street,
to call them part of the public at least; and I think, for
the interests of the city in the west, with those
thoroughfares established and used, that it should be
opened." Another said: "Well, I
consider the necessity of the improvement in the first place
as a general necessity to the public; and, on the other hand,
it is a necessity from the property interests down there on
that street, on this end and on the other, and also the heavy
traffic from the west and northwest part of the city to the
southwest part or to the depots, as you might say.
I have
noticed,-I have done business on the street for the last
eight or nine years, and I have noticed that the heavy
traffic has almost invariably gone that way, seeking an
outlet to the depots, avoiding Monroe street. That is another
reason why I consider it a public improvement. And, of
course, the property holders down there, they have interests
there that require an opening up of the street. It is a
necessity, the same as any other street is, and, as I
consider it, in any other part of the city." Another
answered as follows: "That property down there is quite
central property. It is not residence property. It is
business property. And Campau street is partly open now, and
the future of the city will demand that it must be open some
time; and the property is destined to be built over, is being
built over all the time, with buildings; and this space that
is now sought to be taken for a street will be built on. And
when it becomes a necessity, which can no longer be put off,
to open the street, it is going to cost the city a great deal
more to open it than it is at the present time. And another
thing, the street should be opened, and the grade line
established, so that people building on either side of the
street could know where they are setting their buildings. One
building should not be set above another. There should be
some authority-some regularity-in regard to the establishment
of that class of buildings; and we all know very well, if
this ground was not platted now, if there is a plat made and
presented to the board of public works, with the street half
opened, they would throw it out in a moment; they would say
that the streets must be dedicated to the public. It is a
public necessity." It was the province of the jury to
determine the question of the necessity for the opening. It
was competent to show the location; that it was in the
central and business portion of the city; that
there was a great deal of heavy traffic through that
district; that other parallel streets, through which traffic
was forced, were occupied by street-car tracks; that the
traffic often became congested in existing streets; that
there was a heavy grade in such streets; that the grade was
much less on the line of the proposed street; that business
blocks were being erected and other improvements made in the
locality; and other facts from which the necessity for the
street might properly be inferred.
The
objection to the questions put is that they were calculated
to draw out, and did actually bring out, not only opinions,
but arguments, rather than facts. There is no valid reason
why the jury, aided by arguments coming from counsel, rather
than from witnesses, cannot in such a case form an
intelligent opinion upon the question of the necessity for
the taking without the aid of opinion evidence. City of
Detroit v. Brennan, 93 Mich. 338, 53 N.W. 525.
The
proposed street crossed the right of way of the Grand Rapids
& Indiana Railroad Company, and error is assigned on behalf
of that company. The court instructed the jury that the
damage done to the railroad company "by having a highway
run across their right of way must necessarily include all
the additional expenses entailed upon them by reason of such
crossing, which, in a city like this or in this city, must
necessarily involve considerable outlay in making and keeping
in repair the crossings, convenient and safe, putting in
gates and towers, if such you find to be necessary, and
providing guards against accident, or, in the language of
Judge Sherwood in another case somewhat similar to this, as
far as the railroad interests are concerned: that, in
addition to the damage for the use of the land occupied by a
street in crossing this right of way, there should be added
to that any extra expense created by the use of such right of
way for the street in the ordinary use of respondent's
road, and such other damage as it may sustain, for injury to
its track, right of way, and franchises occasioned by the
crossing, and which may properly be considered as the
natural, necessary, and approximate cause
thereof. The rule here stated does not include expenses made
necessary in order to comply with the police regulations of
the state municipality, but such damages only as arise in
making the structural changes necessary to comply with
statutory regulations, which must necessarily continue in the
future operation of the respondent's road, as well as in
full value for all lands taken that are not included in their
right of way, and all damages caused thereby to their
remaining premises, if any such you find. I have referred
above to gates and towers. Among other structural changes in
this case may be found the putting down and keeping in repair
the approaches to and crossings of this right of way, and the
tracks thereon, of planks or other suitable material, the
making and putting in of sidewalks, such structural changes
as the law requires at street crossings in the city. There is
some little testimony, I believe, in regard to one of the
side tracks being used for storing cars. In addition to such
other damages, you should, in fixing just compensation, take
into consideration the fact, if you find by the evidence that
it exists, that the railroad company has now a side track
upon which it sometimes stores its cars, upon its right of
way upon this proposed street crossing, and allow such
compensation for the interrupting of such use of such side
track for storage purposes as will fully compensate the
company for the...
