Comm'n of Conservation of Dep't of Conservation v. Connor

• Decision Date: 07 January 1947
• Docket Number: No. 64.,64.
• Citation: 25 N.W.2d 619,316 Mich. 565
• Parties: COMMISSION OF CONSERVATION OF DEPARTMENT OF CONSERVATION v. CONNOR et al.
• Court: Michigan Supreme Court

316 Mich. 565

25 N.W.2d 619

COMMISSION OF CONSERVATION OF DEPARTMENT OF CONSERVATION

v.CONNOR et al.

No. 64.

Supreme Court of Michigan.

Jan. 7, 1947.

Appeal from Circuit Court, Gogebic County; Thomas J. Landers, judge.

Condemnation suit by Commission of Conservation of the Department of Conservation of State of Michigan against Gordon Connor and the Connor Lumber & Land Company. From the judgment, the defendants appeal.

Affirmed.

Before the Entire Bench, except DETHMERS, J.

R. B. Graves, of Wisconsin Rapids, wis., and Charles M. Humphrey and Charles M. Humphrey, Jr., both of Ironwood, for appellants.

Foss O. Eldred Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Harry W. Jackson and Daniel J. O'Hara, Asst. Attys. Gen., and William F. Pellow, sp. Asst. Atty. Gen., for appellee.

BUTZEL, Justice.

Act No. 27, Pub.Acts lst Ext.Session 1944, Stat.Ann.1945 Cum.Supp. § 13.790(21) et seq., provides for the acquisition and development of recreational facilities for park purposes in several defined areas in Michigan and specifically appropriates the sum of $1,000,000 for the acquisition of property in the Porcupine Mountain area consisting of certain large tracts of land in Gogebic and Ontonagon counties. The instant suit was brought by the commission of conservation of the department of conservation of the State of Michigan, plaintiff, for the purpose of condemning some of the property in the Porcupine Mountain area owned by the Connor Lumber & Land Company, a corporation, and Gordon Connor, the defendants herein. As no question is raised as to the legal right of plaintiff to seek condemnation of the property, we shall not discuss the various acts by virtue of which plaintiff has brought these proceedings. We limit our discussion exclusively to the questions raised by appellants.

The testimony discloses that the Porcupine Mountain area sought by plaintiff for park purposes is one of the most beautiful tracts of land in the United States. One witness described its unsurpassable scenic beauty as rivaling that of Switzerland. Its recreational and educational facilities are described by witnesses in unmeasured terms. It is sought in the present case to expropriate 4590.79 acres of property on which there is a solid stand of timber. Defendants own the fee to 2466.82 acres of this property together with the water flowage rights in the Presque Isle River, the riparian rights thereof and a railroad bridge crossing it, also such portion of defendant corporation's logging railroad as extends over a small portion of the property. Defendants own the timber rights on the remainder of the property consisting of 2123.97 acres, the fee of which is in the Keweenaw Land Company. According to Act No. 27, supra, the entire park as contemplated will have approximately 43,000 acres, the larger portion of which is located in Ontonagon county. A solid stand of virgin timber covers the property of defendant corporation. It is one of the few remaining stands of such size in Michigan. The timber consists largely of hemlock and to a lesser extent of various kinds of hardwood. Defendant Gordon Connor owns 154.80 acres of timber land in Gogebic county which plaintiff also seeks to acquire in this proceeding.

In the original petition filed, 299.15 acres in Ontonagon county were included but, by appropriate amendment, were excluded on motion at the hearing of the case. By another amendment and motion, the 154.80 acres of defendant Gordon Connor in Gogebic county were included.

Defendants' witnesses were in accord with those of plaintiff as to the beauty of the proposed park and many of its advantages; but they stoutly maintained throughout the entire proceedings there was no need whatsoever to include in the proposed park defendants' stand of timber for the logging and lumbering of which, as will as for other stumpage, defendants had constructed many facilities at considerable expense. In addition to the extension of the logging railroad and the building of a bridge, defendant lumber company owns a lumber camp on the property and a large sawmill some 15 miles distant from the property sought to be condemned. Defendants further claim that there can be but little permanence to much of the timber on the property sought to be condemned as the timber is ripe for harvesting and some of the trees are rotting. Defendants contend, however, that a salvage can be obtained from the rotting trees if they are cut within a reasonable time. Defendants further show that the property is over 15 miles distant from the Porcupine Mountains. They contend that a very wide strip of virgin timber on each side of the roadway running through the property would more than suffice for educational and historic purposes. Plaintiff, however, claims that defendants' large stand of virgin timber has great historic value, will demonstrate a basic industry of northern Michigan, and will attract a large number of tourists to this forest part of the park. Plaintiff showed that part of the property fronts on Lake Superior, and includes the picturesque Presque Isle River and gorge. In the last analysis, the question of necessity of expropriating defendants' property was one for the jury. Each side presented a long array of exceptionally well-qualified witnesses. The jury found for necessity. Its verdict is sustained by the evidence.

The jury awarded defendant lumber company the sum of $211,872.30, and defendant Gordon Connor $4,774.10, as just compensation for the taking of their properties. Defendants raise many other questions on appeal.

(1) Appellants claim that the court and jury did not have jurisdiction to determine the question of the necessity of establishing the proposed park without including all other owners of property within the area of the proposed park. This would mean joining a large number of owners of property in Ontonagon county in a suit brought in Gogebic county. The acreage of defendants is slightly over 10 per cent. of the entire acreage proposed for the park. Defendants' property adjoins a county park. A roadway runs to and through the property and while it undoubtedly would be desirable to combine all parts of the park, the value of a 43,000-acre park is not destroyed because adjoining acreage also described in Act No. 27, supra, is not obtained in toto or in one proceeding for park purposes. In fact, if the various large areas devoted to park purposes are joined together by a roadway or a still wider strip of land, their particular value or that of the park as a whole is not destroyed. In the original petition it was sought also to condemn 299.15 acres of adjoining timber land belonging to the defendant company and situated in Ontonagon county. When the attorneys for plaintiff moved to amend the petition so as to exclude the Ontonagon county acreage, defendants' attorney not only did not oppose the motion, but on behalf of defendants intimated that there would be no necessity for a further condemnation proceedings in Ontonagon county and that the same measuring stick might be used in arriving at the value of defendants' property in Ontonagon courts as would be determined in the instant suit to condemn the Gogebic county property. Defendants, however, now take the position that the court had no jurisdiction to condemn only part of the property designated in the statute. Act No. 27, supra, for the proposed park. In 1 Comp.Laws 1929, § 3766, Stat.Ann, § 8.14, in providing for condemnation by State agencies and public corporations, it is stated that the necessary proceedings should be instituted in the circuit court of the county where the private property sought to be taken is located et cetera. If full credence were given to the testimony of one of the witnesses of defendants that the value of their properties sought to be condemned in this proceeding were worth in excess of one million dollars, when and if converted into lumber, and this were the proper method of evaluating the timber, it would follow that no other property than that of defendants could be acquired at the present time, as the appropriation under Act No. 27, supra, for the entire area consisting of approximately 43,000 acres is only one million dollars.

Defendants call our attention to the case of City of Allegan v. Iosco Land Co., 254 Mich. 560, 236 N.W. 863, where proceedings were brought under 1 Comp.Laws 1929, § 3784 et seq., Stat. Ann. § 8.41 et seq. a different act, by virtue of which proceedings were brought to acquire property for building a dam and acquiring the flowage rights over 1500 acres of land. The court properly held that this was an indivisible undertaking. It could serve no purpose to condemn only part of the property which would be useless unless the balance of it were also expropriated. Other cases cited by defendants likewise are distinguishable.

In the present case, it was stated that negotiations were under way to secure without condemnation necessary tracts in the park area, that the State already owned 1,000 acres of the proposed tract in Ontonagon county, and that it had or was arranging for the exchange of other lands owned by the State for a very large acreage in the proposed park area in Ontonagon county belonging to Federal and State agencies, as well as others. The present suit would not preclude bringing other condemnation suits if it became necessary. It was proper to exclude the portion of the property in Ontonagon County as described in the original petition. It was not necessary to include all the property as set forth by Act No. 27, supra, in the present proceeding. Defendants' claim of a jurisdictional defect has no merit. See In re Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140, and In re HuronClinton Metropolitan Authority's Petition, 306 Mich. 373, 10 N.W.2d 920, for authority to exclude certain parcels from a pending condemnation proceeding.

(2) Defendants claim that the verdict was fatally defective in not first...