Grand Rapids, L. & D.R. Co. v. Chesebro

• Decision Date: 19 April 1889
• Citation: 74 Mich. 466,42 N.W. 66
• Parties: GRAND RAPIDS, L. & D. R. CO. v. CHESEBRO ET AL.
• Court: Michigan Supreme Court

42 N.W. 66

74 Mich. 466

GRAND RAPIDS, L. & D. R. CO. v. CHESEBRO ET AL.

Supreme Court of Michigan

April 19, 1889

Appeal from probate court, Kent county. Condemnation proceedings.

CAMPBELL J.

The petitioner began proceedings against respondents on the 9th day of March, 1888, to procure by condemnation a right of way over 40 acres of land owned by respondents near Grand Rapids. This resulted in an award of $600, divided among the parties according to their several undivided estates. The proceedings are before us on appeal, partly on questions of jurisdiction and partly on questions arising on the inquest and on the record. The petition, which does not indicate that the case differed from any other application, sets out the usual preliminary allegations, and that a map and survey were duly approved June 30, 1887, for so much of the railroad line as reached Grand Rapids, and a further map in continuation to the terminus within the city in September, 1887. The lack of ability to agree is averred to have been caused by the exorbitant demands of respondents, who are owners. It appears, however, as a matter of fact, that the petitioner went upon the land, and began operations on it, in the summer or early fall of 1887, when respondents filed a bill to restrain them, in which defendants' title was made out but an injunction was refused in case these proceedings should be commenced, and this ruling was made in February 1888. During that possession, which was wrongful, the work appears to have been completed, and the road opened and operated. We do not care to discuss the question of good faith in the entry, although it was evidently with notice of respondents' claims, and rested on a legal notice of the supposed effect of conveyances, and not on ignorance of fact. But, on the record as it now stands, we do not deem it specially important.

The chief objections urged against having an inquest allowed refer to the silence of the petition on the real condition of affairs, and the effect of the tortious holding, as well as on supposed defects in the map and survey, and their approval by the state board. Before passing to the questions presented under the inquest, it is necessary to refer to the preliminaries. There can be no doubt, under our decisions and under the constitution of this state, that there can be no possessory right in a railroad company adverse to the real owner, without either a license or a payment or tender after a valid condemnation. It is a land-owner's absolute right not to be disturbed in his freehold. No court has the right to divest possession in advance of condemnation, or to legalize it. The utmost that can be claimed for the chancery proceedings in the record before us is that the court did not see fit to enjoin petitioner from possession, provided it proceeded to apply for condemnation. It in no way legalized the possession, or relieved petitioner from any action at law for the wrongful entry. The principle is elementary, and was recognized in Railroad Co. v Probate Judge, 53 Mich. 217, 18 N.W. 788; Railroad Co. v. Railroad Co., 61 Mich. 9, 27 N.W. 715; Railroad Co. v. Probate Judge, 63 Mich. 676, 30 N.W 598. It was held in Railroad Co. v. Callanan, 61 Mich. 12, 27 N.W. 717, that a pending suit for damages was not affected by condemnation proceedings. But, on the other hand, there have been several cases before us where a railroad was in possession when the petition was filed, and that fact alone is not enough to bar the jurisdiction. Dunlap v. Railroad Co., 50 Mich. 470, 15 N.W. 555, was a suit growing out of such a case, and Railroad Co. v. Dunlap, 47 Mich. 456, 11 N.W. 271, was a case where the railroad had got into possession by wrong, and had failed on one proceeding, which was fraudulent. Morgan's Appeal, 39 Mich. 677, was another case. We are not prepared to say that cases may not exist where such a wrongful possession has been assumed for the purpose of extorting terms that might indicate a lack of honest disability to agree on a price. It is very certain that no one should be allowed to profit by his own wrong. But usually, where there has been no criminal entry, there can be no very good reason, why, unless forbidden by injunction, there should not be an inquest allowed, where all the statutory conditions have been respected. This may affect the damages, but in most cases, at least, the remedies at law are sufficient to secure justice. In the present case the inquest was property sought.

We do not think the map and survey were insufficient, and the certificate of approval is presumptively good. In the absence of proof to the contrary, the certificate of a majority of the state board, attested by the secretary, will be presumed to have been at a lawful meeting. We should have some doubt whether the offer of $300 for the right of way was so made as to show a difficulty in making a reasonable arrangement. But, as it appeared one of the respondents was an infant, that fact alone was enough to save the jurisdiction. We think there was jurisdiction to start the proceedings, if the description in the map and petition was sufficient.

We think that the probate judge ruled incorrectly in holding that a competent surveyor was not as good a witness as any one else to test and apply the data on the map as sufficient guides for location. The object of having a map filed at all is to enable the public to know the line of the railroad. It is not to inform railroad experts and engineers, but people generally, and it must furnish reasonable means for doing so. But in the present case there is no difficulty in applying the description. It shows where the line enters and where it leaves the land, and the various bends and other lines of direction are easily inferred from what is shown. We have had frequent occasion to sustain the sufficiency of the juror's oath and finding, so far as form is concerned, and need not dwell upon that. We think the jury had the case fairly before them.

But the proceedings before the jury appear to have been conducted in a peculiar method, not within the proper rules governing such cases, and appear to have led to conclusions that cannot be maintained. The probate judge acted throughout as if he had been a nisi prius judge, presiding over a common-law jury, and assumed the whole responsibility of directing what testimony should go before them, and on what theories of damages. Whether he charged them or not does not appear, but his rulings on evidence had practically the same effect. Whether the constitution will suffer the jury or commission of inquest to act in a court of common-law jurisdiction under the conditions applicable to other juries is a very serious question, but, so far as we know, it has not been attempted. The constitution in such cases as the present allows either commissioners appointed by a court of record or a jury of freeholders to determine the necessity of public use, and to ascertain the damages. Commissioners form no part of the machinery of a court, and a jury of inquest is not a court. It has always been settled that the appropriation of private property did not come under the "judicial power," as it is located under the constitution in courts, and except for the constitution the nature of the tribunal of condemnation would have been discretionary with the legislature. Highway commissioners act on the location of highways, and under the old constitution public commissioners condemned land for the state railroads. In the railroad special charters there was no instance of action by a common-law trial jury. Then, as under our present statutes, the jury was a jury of inquest, specially created and not a trial jury. We held in Railroad Co. v. Dunlap, 47 Mich. 456, 11 N.W. 271, where the jury was impaneled in a circuit court, that the only functions of the court were to set the proceedings in motion by organizing a jury or appointing commissioners, and affirming or vacating the award; and we held, further, that the jury were judges of law and fact, and not subject to interference by the judge, should he undertake to accompany them. The statute, which probably was in this respect borrowed from some other region, while it does authorize a judge to go with and decide questions of law and swear witnesses, also allows him to deputize a circuit court commissioner to do the same thing. It would be absurd to consider such action as valid judicial action. It was held there, as it has been uniformly held, that the jury cannot be made subject to any such instruction, and must act on their own judgment. When the award comes up for confirmation, it may be attacked for irregularity or impeached on the merits in various ways, as it may be on appeal. But the award is and must be the jury's award, reached in the jury's own way. If the jury see fit to accept rulings which are wrong, and act on them, their action will be reviewed accordingly, but as their own and not as the attending magistrate's ruling. See, to the same point, Railway Co. v. Voorheis, 50 Mich. 506, 15 N.W. 882; Railroad Co. v. Probate Judge, 53 Mich. 217, 18 N.W. 788. This difficulty is still more apparent when the application is made to a probate court. Under our constitutional system, that court itself is, for most purposes, at least, a prerogative, and not a judicial, court, and has no jurisdiction over persons or property, except in such proceedings as relate to the estates of deceased persons, or those under disability and liable to wardship. This was referred to in Railway Co. v. Probate Judge, 63 Mich. 676, 30...