In re Bagley Ave. in Detroit

• Decision Date: 04 September 1929
• Docket Number: No. 125.,125.
• Citation: 226 N.W. 688,248 Mich. 1
• Parties: In re BAGLEY AVENUE IN CITY OF DETROIT.
• Court: Michigan Supreme Court

248 Mich. 1

226 N.W. 688

In re BAGLEY AVENUE IN CITY OF DETROIT.

No. 125.

Supreme Court of Michigan.

Sept. 4, 1929.

Appeal from Recorder's Court of Detroit; Frank Murphy, Judge.

Proceeding by the City of Detroit for the condemnation of property in the matter of the widening of Bagley Avenue, opposed by James Lane and others. There was a verdict of necessity, and awards of damages were made, and respondents appeal. Affirmed.

Argued before the Entire Bench. Donnelly, Donnelly, Munro & Dahling, of Detroit, for appellant lane.

Burke & Birge, of Detroit, for appellants Hoyt Laundry and others.

Guy W. Moore and Hal P. Wilson, both of Detroit, for appellant Irwin.

C. H. & G. M. Lehman, of Detroit, for appellant Zack.

James H. Lee, Asst. Corp. Counsel, of Detroit (Clarence E. Wilcox, Corp. Counsel, of Detroit, of counsel), for appellee.

POTTER, J.

This case involves the use by the city of Detroit of the power of eminent domain to condemn lands and buildings for widening Bagley avenue, from Cass avenue to Michigan avenue. There was verdict of necessity, and an appraisal of the damages to or for each parcel to be taken. Respondents appeal.

Necessity for taking and the ascertainment of the just compensation to be made may be determined and fixed either by a jury of freeholders of the vicinage or by commissioners. Section 2, art. 13, Michigan Constitution. The city elected to have a jury called. Such jury, impaneled in proceedings of this kind, is a constitutional tribunal, a jury of special inquest. The Constitution does not vest the power in a court, or in a judge and jury, but in a jury of 12 freeholders of the vicinage. The proceedings are not according to the course of the common law, not in the nature of a lawsuit. The function of the judge is to set in motion the proceedings by organizing the jury, and act in an advisory capacity during its deliberations. The jury may listen to the opinions of witnesses, their estimates of value, and their methods of arriving at the conclusions expressed; but the jury is not bound by the testimony alone. They are to exercise their judgment, based not only upon the testimony but their own knowledge gained from a view of the premises. They are not to be interfered with or dictated to by the judge. The jury are judges both of the law and facts. Toledo, Ann Arbor & Grand Trunk Ry. Co. v. Dunlap, 47 Mich. 456, 11 N. W. 271;Port Huron & Southwestern Ry. Co. v. Voorheis, 50 Mich. 506, 15 N. W. 882;Grand Rapids, Lansing & Detroit Ry. Co. v. Chesebro et al., 74 Mich. 466, 42 N. W. 66. ‘In condemnation proceedings the trial judge has not the power of control over the proceedings and verdicts possessed by the trial judge in common-law actions. He may, of course, confirm or set aside the award reported to him, but he cannot give binding instructions, and the jury is the judge of both law and facts.’ In re Owen and Memorial Parks, 244 Mich. 377, 221 N. W. 279, 280.

Many technical rules have been promulgated for determining value, none of which are important. The determination of value is not a matter formulas or artificial rules, but of sound judgment and discretion, based upon a consideration of all the relevant facts in a particular case. Simpson v. Shepard, 230 U. S. 352, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18. It is, in the final analysis, only the effect of the relative human desire for compared objects expressed in terms of a common denominator. International Harvester Co. v. Ky., 234 U. S. 216, 34 S. Ct. 853, 58 L. Ed. 1284;Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165.

The compensation to be made is to be just. It is the fair cash market value of the property to be taken. The compensation estimated is to be paid in the legal currency of the country. Damages are to be awarded without consideration of the question of benefits to the lands not taken. Port Huron & Southwestern Ry. Co. v. Voorheis, 50 Mich. 506, 15 N. W. 882. Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred.

In the case of land actually taken, just compensation awards its value, or the amount which the value of the property from which it is taken is depreciated. Grand Rapids & Indiana R. R. Co. v. Heisel, 47 Mich. 393, 11 N. W. 212. Where the whole of a parcel of land is taken, the compensation to be made is the fair value of the land so taken. Where only part of a parcel is taken, just compensation is to be determined by the amount which the value of the parcel from which it is taken is diminished. The value of the part actually taken is...