Detroit, G. H. & M. Ry. Co. v. Weber
Decision Date | 04 September 1929 |
Docket Number | No. 74.,74. |
Citation | 226 N.W. 663,248 Mich. 28 |
Court | Michigan Supreme Court |
Parties | DETROIT, G. H. & M. RY. CO. v. WEBER et al. |
OPINION TEXT STARTS HERE
Certiorari to Circuit Court, Wayne County; Fred S. Lamb, Judge.
Condemnation proceeding by the Detroit, Grand Haven & Milwaukee Railway Company against Joseph F. Weber and another. On certiorari by defendant named to review an order denying his motion to dismiss proceedings. Affirmed.
Argued before the Entire Bench.Earl I. Heenan and MacKay, Wiley, Streeter, Smith & Tucker, all of Detroit, for appellant.
H. R. Martin and Victor Spike, both of Detroit, for D., G. H. & M. Railway Company.
The Detroit, Grand Haven & Milwaukee Railway Company is the successor to the Detroit & Pontiac Railroad Company, and as such possesses and is operating its railroad from Detroit to Grand Haven under a special charter granted by the territorial Legislature in 1834, as modified by various subsequent legislative enactments. It has instituted condemnation proceedings in Wayne county by which it seeks to acquire, ‘for additional yard tracks and facilities,’ lands belonging to the appellant, Joseph F. Weber. These proceedings were instituted pursuant to the General Railroad Law (C. L. 1915, §§ 8232-8330).
Mr. Weber appeared specially, objected to the court's jurisdiction, and moved to dismiss the proceedings, because: (a) The special charter of the railway company did not authorize it to condemn lands for the purposes set out in the petition; and (b) if it possessed such power, the railroad should follow the procedure set up in its special charter, and could not proceed under the General Railroad Act. This motion was denied by the circuit judge. The correctness of this ruling is challenged by Mr. Weber, and is here for review on certiorari.
More specifically stated, it is Mr. Weber's claim that the railway company is not possessed of power under its special charter to acquire by condemnation his land described in the petition, to be used for ‘the construction and operation by it of additional yard tracks and facilities adjacent to * * * its main line,’ which are alleged to be required by ‘its business, and the present and future convenience and necessity,’ and further that, since this railway company is operating under a special charter, it cannot prosecute condemnation proceedings under the General Railroad Law, as it is now attempting to do.
As summarized in appellant's brief, this company under its special charter has the power to condemn land to the following extent only: ‘So far as the same may be necessary for the purposes hereinafter mentioned and no further * * * for the location, construction and keeping in repair said railroad, not exceeding one hundred feet in width * * * or any other purpose which is necessary in the construction or repair of said road or its works.’
It is asserted that power to condemn for ‘additional yard tracks' is not granted by the foregoing provisions of the special charter. But, in addition to the powers conferred by the terms of its special charter, the Legislature, in the General Railroad Law passed in 1873, provided: ‘The provisions of this section shall apply to all railroad companies operating lines of railroad in this state, whether such companies are organized under the general railroad law or under any special charter from the state legislature.’ C. L. 1915, § 8243.
Earlier in the section cited it is provided:
‘Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following, that is to say: * * *
Appellant's counsel take the position that, because express...
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