Condemnation of Lands in City of Battle Creek for Park Purposes, In re

• Decision Date: 29 November 1954
• Docket Number: No. 61,61
• Citation: 67 N.W.2d 49,341 Mich. 412
• Parties: In re CONDEMNATION of LANDS IN CITY OF BATTLE CREEK FOR PARK PURPOSES. Appeal of WILBER.
• Court: Michigan Supreme Court

Page 49

67 N.W.2d 49

341 Mich. 412

In re CONDEMNATION of LANDS IN CITY OF BATTLE CREEK FOR PARK

PURPOSES. Appeal of WILBER.

No. 61.

Supreme Court of Michigan.

Nov. 29, 1954.

Cobb, Wilder & Nielsen, Battle Creek, for respondents and appellants, Luther R. Wilber and Irene Wilber.

John M. Allen, City Atty., Richard C. Scatterday, Asst. City Atty., Battle Creek, for petitioner and appellee.

Before the Entire Bench.

DETHMERS, Justice.

Defendants appeal from an order confirming jury verdict in condemnation proceedings. Defendants Luther and Irene Wilber, husband and wife, hereinafter called parents, are record title owners of the entire premises sought to be taken, and their son and his wife, defendants Donald and Constance Wilber, hereinafter called children, are alleged in the pleadings to be in possession of a portion thereof as contract purchasers.

Plaintiff's petition alleged that parents were the only persons who owned or had any claim to the premises. They answered, alleging that other persons were in possession of a portion thereof under a land contract, without naming such persons or describing the portion thus affected. Plaintiff, on leave granted, then amended its petition to allege that insofar as petitioner knew or could with diligence ascertain, parents owned the entire premises in fee and children, as land contract vendees, resided on the northeasterly portion of lot 101. Parents answered, admitting said allegation and further alleging that children were contract vendees of the northeasterly portion of lot 101, describing said portion as being lot 10 of a proposed plat. Children appeared by the same attorneys as parents and filed an answer which adopted the answer of parents.

On trial plaintiff introduced proofs that the records of the office of register of deeds disclosed parents to be the sole owners of the entire premises in fee. Plaintiff offered no other evidence of ownership nor did defendants or their witnesses testify to an interest in children. Defendants placed an expert witness on the stand to testify concerning the value of the premises. He did not testify as to a separate value to be placed on any portion being purchased by children, but, on the contrary, testified only as to the value to be placed on the entire premises. The record supports the statement of the trial court that the attorney for defendants, in a lengthy opening statement, never mentioned children or indicated that they were entitled to a share in the award, but based his statement entirely on the premise that parents were the sole owners and entitled to any damages resulting from a taking; that the entire case was presented on that basis; that no proofs were offered as to a contract interest in children nor any proofs upon which an award to them could properly have been made by the jury. The court went on to say that defendants' attorney failed, even in his closing argument, to make any mention of children or their interest and that he made no request that the jury return a separate award to them.

The jury found necessity for the taking and awarded compensation in the amount of $40,000.06, employing for that purpose a blank verdict form which recited that they found it necessary to take the private property described in the petition and that the compensation to be paid was the mentioned amount, but spaces in the form intended for description of the property and for names of owners to whom compensation was to be paid were left blank by the jury. On plaintiff's motion, supported by the testimony of the jury's foreman that this was in accord with the jury's intention, the court ordered the verdict form to be amended to show the description of the entire premises and to name parents as the persons who were the owners to whom the award was made and ordered the foreman to sign it as amended.

Defendants claim error in failure of the jury to award compensation to children. The latter were made parties to the case, entered an appearance, filed an answer, were represented on trial by the same counsel as parents and had their day in court. That plaintiff's petition and defendants' answers contained the mentioned references to a land contract does not alter the fact that children failed to assert any interest in the premises during the hearing. They permitted their counsel to proceed as if the property involved was one piece belonging to parents only. That the proceedings ended in no award to them constituted no failure of due process in view of the course pursued by them and their counsel at trial inasmuch as they were given every opportunity to assert their rights and neglected to do so. They cannot now challenge the verdict for failure to make a separate award to them. Despite superficial differences in the facts in the cases, this is the only conclusion possible within the meaning of Todd v. State Highway Commissioner, 227 Mich. 208, 198 N.W. 945. It follows that the court did not err in ordering the form of verdict amended in the manner above indicated inasmuch as the record contained nothing that would have supported an award of compensation to anyone other than parents. P.A.1911, No. 149, § 11, C.L.1948, § 213.31, Stat.Ann. § 8.21, permits the descriptions and names of occupants or owners to be inserted in the blank verdict by either the court or the jury. Section 12 of that same act, being the act under which these proceedings were brought, provides in part as follows:

'* * * Amendments either in form or substance may be allowed in any paper, petition, process, record or proceedings or in the description of the property proposed to be taken, or the name of any person whether contained in the resolution passed by the public corporation or state agency or otherwise, whenever the amendment will not interfere with the substantial rights of the parties. Any such amendment may be made after as well as before judgment confirming the verdict of the jury.'

That amendment of the verdict is permissible under the statutory provision when substantive rights of parties are not injuriously affected was held in City of Detroit v. Fidelity Realty Co., 213 Mich. 448, 182 N.W. 140. In view of the state of the record, the amendment here made was authorized by the statute.

The petition described the entire premises to be taken, named the record title owner thereof and alleged on information and belief that children held a contract interest to a portion thereof. Was the petition defective for failure to separately describe the parcel occupied by children as alleged vendees? So contending, defendants cite Toledo, etc., R. Co. v. Munson, 57 Mich. 42, 23 N.W. 455. Involved there was C.L.1857, § 1963 et seq., the provisions of which...