Connor v. Brake
| Decision Date | 07 April 1952 |
| Docket Number | No. 299,299 |
| Citation | 333 Mich. 219,52 N.W.2d 672 |
| Parties | CONNOR v. BRAKE et al. CONNOR LUMBER & LAND CO. v. BARKE et al. Motion |
| Court | Michigan Supreme Court |
Graves & Casey, Wisconsin Rapids, Wis., Pierce, Planck & Ramsey, Lansing, for petitioners.
Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Nicholas V. Olds, Asst, Atty. Gen., for respondents.
Before the Entire Bench.
Gordon R. Connor and Connor Lumber & Land Company, plaintiffs (herein referred to as Connor), filed petitions against D. Hale Brake, Treasurer of the State of Michigan, and Commission of Conservation of the Department of Conservation, defendants (herein referred to as Conservation), for a mandamus to order Conservation to pay certain judgments based on condemnation awards and interest in accordance with Connor's computations. We issued orders to show cause and of reference to the circuit court of Gogebic county. The petitions are presented on one record and will be discussed accordingly as our decision on either petition will determine the questions raised in each of them. The underlying facts leading to the present proceedings are very fully set forth in the record and opinions in Commission of Conservation of Department of Conservation v. Connor, 316 Mich. 565, 25 N.W.2d 619, to which reference will be made.
P.A.1944, First Ex.Sess.No. 27, C.L.1948, § 299.101 et seq., Stat.Ann. § 13.790(21) et seq., provides for acquisition and development of recreational facilities in several defined areas and appropriates five million dollars for this purpose. The act expressly states that one million dollars of the appropriation is to be used for the acquisition by condemnation proceedings of the properties in Gogebic and Ontonagon counties in what is known as the Porcupine Park area, in which the properties of Connor were located. On April 18, 1944, condemnation proceedings were begun by Conservation in the circuit court for the county of Gogebic to condemn certain properties in the area. The jury found necessity and awarded the sum of $211,872.30 to the Connor Lumber & Land Company, and $4,774.10 to Gordon Connor, both of whom appealed from judgments on the awards rendered November 25, 1944. The appeals were not submitted to this court until October 18, 1946, and the judgments were affirmed on January 7, 1947, with costs to Conservation.
Three days after the cases were begun in the circuit court, Conservation brought suit to enjoin Connor from removing any timber from the lands which Conservation sought to condemn, and a temporary injunction was issued as well as an order to show cause. Connor at first made no attempt to have the temporary injunction dissolved. It was stated by Connor's attorney at the hearing on the order to show cause that up to that time Connor had not been damaged but it denied that the court had jurisdiction. Connor was not interested in the scenic beauty of the property but principally in the timber, while Conservation was interested in both, it being also desirous of preserving a large stand of virgin timber for its historical value by thus acquiring one of the few remaining large stands of such timber and exhibiting it to visitors to the area as one of the sources of a basic industry of northern Michigan. Connor took no further action to appeal from the order granting the timporary injunction and remained the sole title owner until divested by final judgment after failure to prevail on the appeal to this court. In the present mandamus proceedings, Connor no longer denies that the court had jurisdiction but in its brief now concedes that the court had jurisdiction to issue the injunction to preserve the status quo during the pendency of the condemnation proceedings. Conservation, on the other hand, could not take possession before the final disposition of the case in this court. Until that time, Connor had possession but could not remove the uncut timber, the value of which was included in the awards and judgments.
The entire sum of one million dollars had been previously set aside to Conservation for the purpose of acquisition of lands in the Porcupine Park. On March 12, 1947, shortly after the decision in this court affirming the award of the jury, there was filed with the county clerk of Gogebic what is known herein as defendant's 'Exhibit 502' containing the facts with reference to the condemnation, including the verdict of the condemnation jury, schedule of the lands included, the verdict entered, the judgment entered thereon, the remittitur from the Supreme Court affirming the judgment, a copy of a resolution passed by the administrative board on the 21st day of March, 1944, setting aside funds for the acquisition of the lands and certification of D. Hale Brake, Treasurer of the State of Michigan, dated March 5, 1947, stating that he had set apart and was now keeping moneys directd by the resolution of the State administrative board in payment for the lands as required by the verdict.
On May 8, 1947, the State Treasurer, through his deputy, wrote to the Connor Lumber & Land Company that a State warrant payable to it in the amount of $201.977.62 was being held and upon demand would be mailed to it, in accordance with the following computation:
"Connor Lumber and Land Company
gross award $211,872.30
less: 1945 taxes through
April 30, 1947 $4,214.80
1946 taxes through
April 30,1947 3,959.72
Supreme Court costs 454.59
Circuit Court costs 230.99
Witness fees, etc
allowed by (circuit)
court 1,034.49 9,894.68
--------- ------------
Warrant $201,977.62"
A letter of the same date was sent to Gordon Connor, showing the following computation:
"Gordon Connor, gross award $4,774.10
less: 1945 taxes through April 30
1947, $107.07
1946 taxes through April
30,1947, 100.59
Supreme Court costs 10.24
Circuit Court costs 5.21
Witness fees, etc
allowed by Court 23.31 246.42
------- ----------
Warrant $4,527.68"
Connor, on May 29, 1947, through their attorneys, wrote to the attorney general of the State of Michigan, stating that they would not accept such computations on which the taxes for 1945 and 1946 were deducted and that the treasurer had not taken into account interest from the date of confirmation or from the commencement of the condemnation proceedings up to the date of the award. The attorneys further stated that they had instructed local counsel to move to set aside the taxation of costs in the circuit court in favor of the State and to take necessary steps for the taxation of costs in behalf of Connor in the event that the taxation was set aside and that if it was the contention of the State that there was no liability for interest upon the award the question would have to be raised in a separate action either in the State or Federal courts.
On motion duly filed, the circuit court for Gogebic county set aside the costs and witness fees totaling $1,265.48 in the Connor Lumber & Land Company case, and $28.52 in the Gordon Connor case, and on December 5, 1947, supplemental State warrants were issued for these amounts. No notice was given to Connor that such warrants had been issued, although it knew of the court order authorizing them. The latter appealed from the circuit court's denial of the cost of fees of expert witnesses that Connor was put to and in 321 Mich. 648, 32 N.W.2d 907, this court reversed the circuit court and allowed costs and witness fees in favor of Connor to be determined by the circuit court in its discretion. Costs of the second appeal were thereafter taxed in favor of Connor in the amount of $223. Thereupon the circuit court allowed costs and expert and witness fees in favor of Connor in the sum of $4,534.30 on August 16, 1948. A warrant for the latter amount was issued on October 5, 1948, and mailed to Connor, whose attorney refused to accept it until the question of the liability of the State for interest was decided. The warrant upon its return was filed with the State Treasurer.
On or about November 12, 1948, the instant mandamus proceedings were instituted and an order to show cause was issued. Connor, as the moving party, did not file a record in this court until June 23, 1951, a delay of over two years. The record fails to disclose the reason for this long delay. Connor now contends that it is entitled to: (1) interest on the gross awards from the date of the issuance of the preliminary injunction to the present, (2) repayment of 1944 taxes paid by Connor Lumber & Land Company, with interest, (3) costs taxed in its favor on the second appeal, with interest. Connor also contends that the deduction of the 1945 and 1946 taxes from the gross awards was improper.
There is no interest due on the awards during the time of the pendency of the proceedings in the trial court, as claimed by Connor. There was no action by the State such as to constitute a 'taking'...
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