Houghs v. Mackie

• Decision Date: 18 October 1965
• Docket Number: No. 2,No. 1,2,1
• Citation: Houghs v. Mackie, 1 Mich.App. 554, 137 N.W.2d 289 (Mich. App. 1965)
• Parties: Carl E. HOUGHS et al., Plaintiffs-Appellants, v. John C. MACKIE, Commissioner of Michigan State Highway Department, and Wayne County Board of Road Commissioners, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 289

137 N.W.2d 289

1 Mich.App. 554

Carl E. HOUGHS et al., Plaintiffs-Appellants, v. John C. MACKIE, Commissioner of Michigan State Highway Department, and Wayne County Board of Road Commissioners, Defendants-Appellees.

Cal. No. 2.

Court of Appeals of Michigan, Division No. 1.

Oct. 18, 1965.

Leave to Appeal Denied Jan. 11, 1966.

Willard L. Mikesell, Charlotte, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Asst. Atty. Gen., Lansing, Donald K. Goulais, Asst. Atty. Gen., Escanaba, for John C. Mackie.

John P. Cushman, Gen. Counsel and Frank W. Lindemann, Detroit, for Wayne County Bd. of Road Commrs.

Before GILLIS, P. J., and T. G. KAVANAGH and QUINN, JJ.

GILLIS, Judge.

This is a mandamus action to compel the commissioner of the Michigan state highway department to remove a fence which the department erected parallel and adjacent to I-94. A service drive parallels the fence and plaintiffs either own property abutting the service drive or a street leading into the service drive. This action was commenced in the Supreme Court, referred to the Wayne county circuit court for findings of fact on stated issues and transferred to this Court for decision. The board of county road commissioners for the county of Wayne had been added as a party defendant.

The circuit court found:

1) The petitioners continue to have access to the highway but such access is one-half to three-quarters of a mile east of their property;

2) Petitioners have suffered substantial damages; and

3) No official action was taken at the time the fence was erected to acquire any property rights from the petitioners.

The issue before this Court is whether the construction of the fence for the purpose of limiting access to the expressway without the acquisition or condemnation of access rights constitutes the taking of private property without compensation or a valid exercise of police power.

Mere inconvenience caused by the necessity...