Houghs v. Mackie

Decision Date18 October 1965
Docket NumberNo. 2,No. 1,2,1
Citation1 Mich.App. 554,137 N.W.2d 289
PartiesCarl 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
CourtCourt of Appeal of Michigan — District of US

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 to use a more indirect route to travel in certain directions is not a deprivation of access and, hence not compensable. See Tomazewski v. Palmer Bee Co. (1923), 223 Mich. 565, 194 N.W. 571. The Supreme Court held in State Highway Com'r v. Watt (1965), 374 Mich. 300, 132 N.W.2d 113, that damages attributable to diversion of traffic are not compensable and this Court holds that whether traffic is diverted by rerouting a road or erecting a fence is immaterial. The construction of a fence along and...

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9 cases
  • State ex rel. Herman v. Schaffer
    • United States
    • Arizona Supreme Court
    • March 26, 1970
    ...Highway Comm., 196 Kan. 13, 410 P.2d 278; cert. denied 385 U.S. 820, 87 S.Ct. 43, 17 L.Ed.2d 57, 43 A.L.R.2d 1072; Houghs v. Mackie, 1 Mich.App. 554, 137 N.W.2d 289; Moses v. State Highway Commission 261 N.C. 316, 134 S.E.2d 664; State Highway Commission v. Central Paving Co., 240 Or. 71, 3......
  • State v. Dunn, No. 82A01-0705-CV-223.
    • United States
    • Indiana Appellate Court
    • June 25, 2008
    ...v. State Dep't of Roads, 177 Neb. 905, 131 N.W.2d 587 (1964); Brady v. Smith, 139 W.Va. 259, 79 S.E.2d 851 (1954); Houghs v. Mackie, 1 Mich.App. 554, 137 N.W.2d 289 (1965); McHale v. State of New York, 278 A.D. 886, 104 N.Y.S.2d 981 (1951), aff'd. 304 N.Y. 674, 107 N.E.2d 593 (1952); State ......
  • Wolf v. Com., Dept. of Highways
    • United States
    • Pennsylvania Supreme Court
    • June 24, 1966
    ... ... State of Nebraska, Department of ... Roads, 177 Neb. 905, 131 N.W.2d 587 (1964); Brady v ... Smith, 139 W.Va. 259, 79 S.E.2d 851 (1954); Houghs ... et al. v. Mackie et al., 1 Mich.App. 554, 137 N.W.2d 289 ... (1965); McHale v. State of N.Y., 278 A.D. 886, 104 ... N.Y.S.2d 981 (1951) aff'd ... ...
  • Goldstein v. City of Baltimore
    • United States
    • Maryland Court of Appeals
    • November 13, 1974
    ...S.W.2d 862 (Mo.1965), cert. denied, (Mohr v. State Highway Comm'n,) 382 U.S. 846, 86 S.Ct. 79, 15 L.Ed.2d 86 (1965); Houghs v. Mackie, 1 Mich.App. 554, 137 N.W.2d 289 (1965); State Highway Comm'n v. Central Pav. Co., 240 Or. 71, 399 P.2d 1019 (1965); James v. State, 88 Idaho 172, 397 P.2d 7......
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