East Saginaw & St. Clair Railroad Company v. Benham

• Decision Date: 07 January 1874
• Citation: 28 Mich. 459
• Court: Michigan Supreme Court
• Parties: The East Saginaw & St. Clair Railroad Company v. Henry W. Benham and another

28 Mich. 459

The East Saginaw & St. Clair Railroad Company v. Henry W. Benham and another

Supreme Court of Michigan

January 7, 1874

Heard January 6, 1874 [Syllabus Material]

Appeal from Saginaw Circuit.

Proceedings under the statute to condemn lands for the use of a railroad. Claimants appealed. Affirmed.

The petition was as follows:

To the Circuit Court for the County of Saginaw:

"Your petitioner, the East Saginaw & St. Clair railroad company, respectfully shows that it is a corporation duly organized under the laws of this State for the purpose of constructing, operating and maintaining a railroad from the Saginaw river at South Saginaw, thence through East Saginaw and Vassar to the St. Clair river, a distance of ninety-five miles as near as may be; that the capital stock of said company is one million dollars, of which ninety-five thousand dollars has been in good faith subscribed, of which subscribed capital five per cent. and upwards has been paid in; that it is the intention of your petitioner in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association to-wit: the places above named; that your petitioner has surveyed the route of its proposed road in said county of Saginaw, has made a map and survey thereof by which said route is designated, has located its said road according to such survey, and has filed a certificate thereof, signed by a majority of its directors, together with such map and survey certified by such directors, in the office of the register of deeds of said county of Saginaw.

"Your petitioner further shows that it seeks to acquire title by special proceedings under this petition to the following real estate situated in said county and State and to no other viz.: A strip or parcel of land one hundred feet in width lying fifty feet on each side of the center line of the East Saginaw & St. Clair railroad as located and established, as shown by said map and survey, upon and across the south half of section twenty-eight in town twelve north, of range five east; that said real estate is required for public use, to wit: for the purposes of your petitioner's incorporation in constructing, operating and repairing its said road and the appurtenances thereof, to wit: as and for right of way; and that your petitioner has not been able to acquire title thereto by agreement with the owner for the purchase thereof, for the reason that such owner asks for the same what your petitioner considers an unreasonable price, and refuses to accept the reasonable sum which your petitioner has offered therefor.

"Your petitioner further shows that so far as known to your petitioner, and so far as can with reasonable diligence be ascertained, the only persons who own or have, or claim to own or have any estate or interest in said tract or parcel of land are Henry W. Benham and Mrs. Elizabeth Benham, both of whom reside at the city of Boston in the State of Massachusetts. Your petitioner therefor prays for the appointment of three disinterested and competent free-holders of said county as commissioners to ascertain and determine the necessity for taking said real estate for the purposes aforesaid, and to appraise and determine the damages and compensation to be allowed to the owners thereof under the laws of this State, and your petitioner will ever pray," etc.

The oath subscribed by the jurors was as follows:

[Title of the court and of the cause.]

"The undersigned jurors summoned in pursuance of an order made in the above entitled proceeding on the 19th day of April, 1873 do...