Grigg Hanna Lumber & Box Co. v. Van Wagoner

Decision Date06 September 1940
Docket NumberNo. 79.,79.
Citation293 N.W. 675,294 Mich. 346
CourtMichigan Supreme Court
PartiesGRIGG HANNA LUMBER & BOX CO. v. VAN WAGONER, State Highway Com'r.

OPINION TEXT STARTS HERE

Suit by the Grigg Hanna Lumber & Box Company against Murray D. Van Wagoner, Michigan State Highway Commissioner, to restrain an alleged violation of plaintiff's rights in relation to a street grade alteration. From a decree for defendant, plaintiff appeals, and defendant cross-appeals.

Decree affirmed, and, on defendant's cross-appeal, decree modified to dismiss plaintiff's amended bill of complaint.Appeal from Circuit Court, Wayne County, in Chancery; Sherman D. Callender, Judge.

Argued before the Entire Bench.

Kenneth M. Stevens, of Detroit, for plaintiff-appellant.

Thomas Read, Atty. Gen., and Edmund E. Shepherd and Kenneth G. Prettie, Asst. Attys. Gen., for defendant-appellee (cross-appellant).

POTTER, Justice.

Plaintiff filed a bill of complaint against defendant to restrain what it claimed to be a violation of plaintiff's rights in relation to a street grade alteration. From decree for defendant, plaintiff appeals and defendant cross appeals.

The bill of complaint alleges that plaintiff is the owner of 141.83 feet of property on the north side of Michigan avenue, at the intersection of Michigan avenue and Bangor avenue; that on the property are two brick buildings containing approximately 50,000 square feet of floor space now occupied by the American Brake Shoe Company; that Michigan avenue runs east and west, and Bangor avenue north from its intersection with Michigan avenue; that at its northernmost end Bangor avenue dead-ends at the New York Central railroad; that Bangor avenue is at present the only method of ingress and egress from plaintiff's property; that immediately east of plaintiff's property Michigan avenue dips down under a grade separation bridge to pass under the Michigan Central railroad; that two and one-half blocks west of plaintiff's property Michigan avenue dips down under a grade separation bridge to pass under the New York Central railroad; that between the two grade separation bridges, at a point one block west of Bangor avenue, Michigan avenue rises to intersect Scotten avenue at grade; that the intersection of Scotten avenue and Michigan avenue is an important intersection, heavily traveled and serving the industrial and residential districts north of Michigan avenue; that the Michigan State highway department proposes to widen Michigan avenue; that in conjunction with widening Michigan avenue defendant proposes to lower the grade of Michigan avenue for the entire two and one-half blocks between the railroad overheads so that Michigan avenue will pass under an overhead bridge to be constructed on Scotten avenue, thereby eliminating the intersection of Scotten avenue and Michigan avenue at grade; that the lowering of the grade will leave the present intersection of Bangor avenue 7 feet above the grade of Michigan avenue and will completely shut off plaintiff's property from all access to Michigan avenue except by a circuitous route through an alley which runs west from the north end of Bangor avenue to Scotten avenue, thence across Scotten avenue to Clark avenue extension which runs southwest to intersect Michigan avenue some two and one-half blocks west of plaintiff's property; that the State highway commissioner has announced that the work will begin at once and will continue pending and during condemnation proceedings.

Plaintiff further alleges that the city of Detroit has filed a condemnation case in the recorder's court for the city of Detroit, in which case the city has sought to condemn a portion of plaintiff's property that will be taken by the public authorities in the widening of Michigan avenue; that there has been omitted from the condemnation case plaintiff's easement of access to and from its property; that plaintiff has been informed the city of Detroit does not intend to bring any condemnation proceedings against plaintiff's easement of access to its property but proposes to permit the State highway department to close the street without any court proceedings. Plaintiff prays that defendant be enjoined from proceeding in any manner to hollow out Michigan avenue until there has been prosecuted to a successful conclusion statutory procedure for the acquisition of the land necessary for the proposed plan and from obstructing the Michigan avenue entrance to Bangor avenue until plaintiff's easement of access to and from its property has been condemned.

Defendant filed an answer admitting the plan as adopted will leave the present intersection of Bangor avenue 7 feet above the grade of Michigan avenue, and denying the alternative route will require passage through an alley for the reason the proposed plan calls for the widening of the present existing alley to a street 30 feet wide. Defendant alleges the only work being done or which will be done upon Michigan avenue until the condemnation of plaintiff's land has been completed is the lowering of the grade on the south side of Michigan avenue; that such work is upon the recently acquired and untraveled portion of Michigan avenue and in no way interferes with travel upon Michigan avenue; that no condemnation proceedings for the acquisition of plaintiff's easement is required inasmuch as plaintiff has an adequate remedy at law; and that several different methods for widening grade crossings were studied and the present proposed plan was adopted by the common council as the plan which would best promote the public safety, welfare and convenience, consistent with the cost of the improvement.

February 2, 1940, a decree was entered enjoining defendant from changing the grade upon the north 6 feet of Michigan avenue or making any change in said street which would in any way interfere with plaintiff's ingress and egress until confirmation of the verdict of the jury in the condemnation case.

March 30, 1940, plaintiff filed a motion for rehearing, alleging that when the decree was entered it was assumed by the court that the question of necessity would be submitted to and decided by the condemnation jury in the condemnation case, No. 1,757, in the recorder's court, brought by the city of Detroit; that such question was not submitted to the jury; that such alleged error would necessitate an appeal by the plaintiff; that unless the trial court granted an injunction staying the work pending a determination of the appeal plaintiff would be deprived of its day in court on the question of necessity by a fait accompli.

April 9, 1940, the decree was amended to change the work ‘six’ to ‘sixty’ so as to enjoin defendant from changing the grade upon the north 60 feet, being the width of the north half of Michigan avenue, or making any change in such street which would in any way interfere with plaintiff's ingress and egress until confirmation of the verdict in the condemnation case. In all other respects, the decree was affirmed and plaintiff's requests for amendment were denied. Defendant's motion for rehearing was also denied.

April 22, 1940, the verdict of the jury in the condemnation case, No. 1,757, involving plaintiff's land, was confirmed.

Plaintiff appeals from the amended decree, claiming error in refusal to enjoin defendant from (1) proceeding to lower the grade on the north side of Michigan avenue during the appeal plaintiff has taken from confirmation of the verdict in the condemnation case, No. 1,757, in the recorder's court; (2) proceeding to lower the grade on the south side of Michigan avenue; (3) proceeding to lower the grade on the north side of Michigan avenue and thereby permanently closing and obstructing Bangor avenue at Michigan avenue until plaintiff's easement appurtenant and right of ingress and egress to its property over and through this intersection has been condemned.

Defendant cross appeals, claiming error in the refusal of defendant's motion to dismiss plaintiff's bill of complaint, as amended.

Plaintiff's rights in the small rectangular piece of property which will be taken in the widening of Michigan avenue should not be injected into the determination of this case. There is no testimony in the record supporting plaintiff's claim that the trial judge, in the condemnation proceedings, refused to let the jury determine the necessity of taking plaintiff's land. Plaintiff's rights will be adequately protected and can best be determined in the appeal to this court from the confirmation of the verdict of the jury in condemnation case, No. 1,757, in the recorder's court.

The work on the south side of Michigan avenue is upon that part of the street which has...

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5 cases
  • Thom v. State (State Report Title: Thom v. State Highway Com'r)
    • United States
    • Michigan Supreme Court
    • December 7, 1965
    ...the amount of damages it received was inadequate. This Court affirmed, largely in reliance upon Grigg Hanna Lumber & Box Co. v. State Highway Commissioner (1940), 294 Mich. 346, 293 N.W. 675. There plaintiff had filed a bill of complaint to restrain the lowering of the street grade and from......
  • Spiek v. Michigan Dept. of Transp.
    • United States
    • Michigan Supreme Court
    • January 21, 1998
    ...as the latter may not, for his own convenience, prohibit a grade change, we do not agree with the Grigg Hanna [Lumber & Box Co. v. State Hwy. Comm'r, 294 Mich. 346, 293 N.W. 675 (1940) ] ruling that society may justly benefit itself at the expense of an individual by failing to compensate h......
  • City of Detroit v. Grigg Hanna Lumber & Box Co.
    • United States
    • Michigan Supreme Court
    • February 7, 1941
    ...separation and the Michigan Public Service Commission found the same to be necessary. In Grigg Hanna Lumber & Box Co. v. Van Wagoner, State Highway Commissioner, 294 Mich. 346, 293 N.W. 675, 678, we again said: “We have repeatedly held that the lowering of street grades is not the taking of......
  • Spiek v. Department of Transp., Docket No. 151606
    • United States
    • Court of Appeal of Michigan — District of US
    • August 8, 1995
    ... ... own convenience, prohibit a grade change, we do not agree with the Grigg Hanna [Lumber & Box Co. v. State Hwy Comm'r, 294 Mich. 346, 293 N.W. 675 ... ...
  • Request a trial to view additional results

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