Detroit Int'l Bridge Co. v. Am. Seed Co.

• Decision Date: 24 January 1930
• Docket Number: No. 109.,109.
• Citation: 228 N.W. 791,249 Mich. 289
• Parties: DETROIT INTERNATIONAL BRIDGE CO. v. AMERICAN SEED CO. et al.
• Court: Michigan Supreme Court

249 Mich. 289

228 N.W. 791

DETROIT INTERNATIONAL BRIDGE CO.

v.AMERICAN SEED CO. et al.

No. 109.

Supreme Court of Michigan.

Jan. 24, 1930.

Appeal from Circuit Court, Wayne County; Arthur Webster, Judge.

Condemnation proceeding by the Detroit International Bridge Company against American Seed Company and another. From an order of condemnation, named defendant appeals. Affirmed conditionally.

Argued before the Entire Bench.Oxtoby, Robison & Hull, of Detroit, for appellant.

Sherman D. Callender and Milton W. Kleckner, both of Detroit (Stevenson, Butzel, Eaman & Long, of Detroit, of counsel), for appellee Detroit International Bridge Co.

FEAD, J.

This is review of condemnation proceedings instituted by the Detroit International Bridge Company, hereafter called plaintiff, to acquire lands of the American Seed Company, designated as defendant, for an international bridge, which has since been constructed and opened from the city of Detroit, Mich., to the town of Sandwich, Ontario. Defendant has appealed from an order of condemnation. The Peninsular State Bank is interested only as mortgagee.

Plaintiff was organized June 20, 1927, under Act No. 84, Pub. Acts 1921, the corporation code, as a corporation for pecuniary profit, but with nominal capital, for the purpose of ‘constructing, owning and/or operating a highway bridge across the Detroit River from Detroit, Michigan, to Sandwich, Province of Ontario, Canada.’

On August 4, 1927, plaintiff amended its articles to increase its capital stock and to change its corporate purposes to read:

‘To construct, own and/or operate a highway bridge across the Detroit River from Detroit, Michigan, to Sandwich, Province of Ontario, Canada, and the approaches thereto.

‘To maintain and operate such bridge and the approaches thereto for the use of vehicular and pedestrian traffic, and to charge and collect tolls for such use.’

It claimed the right of eminent domain under Part 2, c. 1, § 2, Act No. 84, Pub. Acts of 1921, as amended by Act No. 232, Pub. Acts 1925, and Act No. 335, Pub. Acts 1927. The only change made in 1927 was in adding the words ‘or tunnel’ and ‘or under’ to the act of 1925. The pertinent part of the section, with the amendment italicized, is: ‘Every corporation shall have power, unless expressly prohibited by law, to purchase, hold and convey all such real and personal estate as the purposes of the corporation may require, and all other real and person estate which shall have been, bona fide, conveyed or mortgaged to said corporation by way of security or in satisfaction of debts. Any corporation organized for the purpose of constructing, owning or operating any highway bridge or tunnel, across or under any river, stream or other waterway forming a part of the boundary between this state and any other state or country, shall, in addition to all other powers by this act conferred, have the power to condemn any and all real estate, or interest therein, or pertaining thereto deemed necessary for the purposes of such corporation, when no mutual agreement can be reached for the purchase thereof, and in which condemnation said corporation shall proceed as in the condemnation of lands or franchises for railroad purposes under chapter one hundred fifty-seven of the compiled laws of nineteen hundred fifteen, as amended.’

Permission to construct the bridge was originally granted by Act of Congress of March 4, 1921 (41 Stat. 1439), to the American Transit Company, a Nevada corporation, its successors and assigns. The act granted no power of eminent domain. The permission was made subject to the Federal Bridge Act of March 23, 1906 (33 USCA §§ 491-498) which provides: ‘If tolls shall be charged for the transit over any bridge constructed under the provisions of this Act, of engines, cars, street cars, wagons, carriages, vehicles, animals, foot passengers, or other passengers, such tolls shall be reasonable and just, and the Secretary of War may, at any time, and from time to time, prescribe the reasonable rates of toll for such transit over such bridge, and the rates so prescribed shall be the legal rates and shall be the rates demanded and received for such transit.’ 33 USCA § 494.

The rights of the American Transit Company were assigned to plaintiff in August, 1927. Proper authorization by the Canadian government was granted to the Canadian Transit Company, Incorporated, May 3, 1921, all the stock of which is owned by plaintiff.

Defendant contends the amendments of 1925 and 1927 to the corporation code, granting right of eminent domain, are unconstitutional on several grounds, which we summarize:

1. The use is not restricted to public purposes.

When employed in a statute, there is no doubt of the meaning of the word ‘highway,’ unless, as sometimes happens, the context plainly shows a perversion of use. The expression ‘private highway’ is a misnomer, and ‘public highway’ is tautology. A highway is a public way for the use of the public in general, for passage and traffic, without distinction. Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522;Flint & Pere Marquette Ry. Co. v. Gordon, 41 Mich. 420, 2 N. W. 648;Burdick v. Harbor Springs Lumber Co., 167 Mich. 673, 133 N. W. 822; Elliot on Roads and Streets, vol. 1, p. 1; Gorham v. Johnson, 157 Mich. 433, 122 N. W. 181; 29 C. J. 364; 4 R. C. L. 195.

A toll road or bridge, if established by public authority, is a highway, and land may be taken for it under the power of eminent domain. 1 Lewis Eminent Domain (3d Ed.) 522; 38 Cyc. 363; 22 L. R. A. (N. S.) 135 note.

The bridge and its approaches form one structure. As such, it constitutes a union of highways of Michigan and of Ontario and converts them into one uninterrupted public road. Land taken for the approaches is as fully dedicated to the public purpose as the bridge itself.

The statute does not authorize the taking for private purposes or for both public and private purposes, as in Berrien Springs Water Power Co. v. Circuit Judge, 133 Mich. 48, 94 N. W. 379,103 Am. St. Rep. 438;Ryerson v. Brown, 35 Mich. 333, 24 Am. Rep. 564;Board of Health v. Van Hoesen, 87 Mich. 533, 49 N. W. 894,14 L. R. A. 114, relied on by defendant. The taking of property ‘deemed necessary for the purposes of such corporation,’ as provided in the statute, plainly has reference back to the public purpose of ‘constructing, owning or operating any highway bridge.’ Swan v. Williams et al., 2 Mich. 427.

It is true that hereafter plaintiff may amend its charter, but, whatever the amendment, it cannot devote the property taken under the power of eminent domain to a private use. No express restrictions in the statute are required to preserve the public purpose. The obligation is implied from acceptance of the right. As was said in Swan v. Williams, supra: ‘For the purpose of carrying out and effectuating the general purpose, the company may be regarded, as we have shown, as a trustee or agent-entitled to certain rights and immunities, upon a faithful observance upon its part, of the objects and terms of its creation. The right to purchase and hold lands for the purposes of the road, being a right delegated in virtue of the eminent domain of the government, and derogatory to those of the citizen whose property is condemned, must be construed as conferring no right to hold the property in derogation of the purposes for which it was taken.’ Also Holt v. Antrim, 64 N. H. 284, 9 A. 389; 1 Lewis Eminent Domain, § 313.

Plaintiff, in exercising the power, irrevocably bound itself to the statutory public use of the property. As is conceded by counsel for plaintiff, it did not acquire the fee. It took only an easement for public purposes, and failure of use for such purposes would work a reverter of the land. Flint & Pere Marquette Railroad Co. v. Rich, 91 Mich. 293, 51 N. W. 1001.

2. The state cannot lawfully delegate exercise of its sovereign power of eminent domain to plaintiff.

(a) Because the bridge, being for commerce with another nation, is exclusively a federal purpose.

In People ex rel. Trombley v. Humphrey, Auditor General, 23 Mich. 471, 9 Am. Rep. 94, it was held that the state could not condemn lands for a purely national project, such as a lighthouse, as there was a want of necessity for the exercise of state power; the federal government having full right to condemn for its own purposes. Counsel agree that the United States may authorize a corporation to condemn lands in a state for an interstate or international bridge, with or without the consent of the state. Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449;United States v. Jones, 109 U. S. 513, 3 S. Ct. 346, 27 L. Ed. 1015. And defendant contends the federal power was held exclusive, in case of such a bridge, in Latinette v. City of St. Louis (C. C. A.) 201 F. 676.

The Latinette Case does not sustain defendant's contention. In the respect claimed, the court merely observed, in effect, that, while Congress could properly refer to the state law the procedure for determination of compensation, it could not, by like reference, work a delegation of any of its own or of the state power of eminent domain, but that the power must be conferred, if at all, by direct grant. Clearly, one government cannot authorize right of exercise of any part of the sovereignty of another.

In a large number of instances cited by counsel, states have authorized condemnation of lands for interstate bridges and ferries. None pass upon the issue here. Apparently the question of want of power in the state has not before been raised.

The bridge is not exclusively a national or state purpose. The federal government is interested in it by virtue of its constitutional authority over navigation, interstate and foreign commerce and post roads. But it did not originate, adopt, nor aid the project. Its function is merely supervisory and permissive. The state is interested in the extension of its highway system to the state boundary in the Detroit river, an indubitably...