In re Harper Ave.

• Decision Date: 01 April 1927
• Docket Number: No. 78.,78.
• Citation: 213 N.W. 74,237 Mich. 684
• Parties: In re HARPER AVE.
• Court: Michigan Supreme Court

237 Mich. 684

213 N.W. 74

In re HARPER AVE.

No. 78.

Supreme Court of Michigan.

April 1, 1927.

Appeal from Recorder's Court of Detroit; Edward J. Jeffries, Judge.

Condemnation proceeding by the City of Detroit for the purpose of widening Harper Avenue from Van Dyke Avenue to Cadieux Avenue, where not already widened as a public street and highway. From an award of damages by a jury in the recorder's court, Stanley Kurczewksi and others appeal. Affirmed, and appeals dismissed.

Argued before the Entire Bench. Monaghan, Crowley, Reilley & Kellogg, of Detroit, for appellants Stanley Kurczewski, Katherine Kurczewski, Stephen Sosnowski, Agnes Sosnowski, and Casmira Sadlowski.

Chas. P. O'Neil, Corporation Counsel, and James H. Lee, Asst. Corporation Counsel. both of Detroit, for appellee.

SNOW, J.

Condemnation proceedings were had in the recorder's court for the city of Detroit, in pursuance of its charter, to acquire the right to take several parcels of private property for public use in the widening of Harper avenue from Van Dyke avenue to Cadieux avenue in said city.

Stanley and Katherine Kurczewski, for parcel No. 2, were awarded by the jury for property damage $20,879.58, and for business damage $575, making a total of $21,454.58.

Stephen and Agnes Sosnowski, for parcel No. 13, were awarded by the jury for damage to business property $33,532, and for damage to business, $809, making a total of $34,341.

Kazimira Sadlowski, for parcel No. 23, was awarded for property damage $34,489. business damage $1,808, making a total of $36,297.

Each of the foregoing owners has appealed.

1. It is first contended by counsel for appellants that the judge of the recorder's court should not have said to the jury that his instructions to them were purely advisory and that they were the judges of the law and facts; that in the city of Detroit the judge should be judge of the law and the jury governed by his instructions, citing section 7 of chapter 1 of title 8 of the charter as follows:

‘The jury shall hear the proofs and allegations of the parties, and, if so ordered by the court, shall go to the place of the intended improvement, in charge of an officer, and upon or as near as practicable to any property proposed to be taken, and examine the premises. It shall be instructed as to its duties and the law of the case by the judge of the court, and shall retire under charge of an officer, and render its verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing, and shall be signed by the foreman of or by all the jurors.’

Justice Steere, in Chicago, etc., R. Co. v. Jacobs, 225 Mich. at page 685, 196 N. W. 621, 623, speaking for this court, says:

‘The jury in condemnation proceedings is a jury of inquest authorized to act as judges of the law and facts, with the judge attending only in an advisory capacity. At such inquest large discretion is given the jury in taking testimony and other particulars, which does not bind them to the strict rules of evidence and technicalities of trial in nisi prius courts'-citing number of authorities.

The subject is well reviewed, and many authorities referred to in City of Detroit v. Fidelity Co., 213 Mich. 449, 182 N. W. 140. See, also, Village of Paw Paw v. Flook, 214 Mich. 486, 183 N. W. 13.

The section of the city charter above eferred to is in effect verbatim with section 3382, C. L. of 1915, the general law of the state relative to condemnation procedure before juries. Our attention is called to no other provision of the charter bearing upon the question. But in any event we have no disposition to make exception to the procedure in condemnation cases having to do with cities. Such proceedings must likewise be regarded, not as ‘a contest of litigious rights,’ but in the nature of an appraisal of values, which should and always has been determined by juries, appraisers, or some other ‘unjudicial body.’ Toledo, A. A. & G. T. R. Co. v. Dunlap, 47 Mich. 462, 11 N. W. 271.

Juries, under the city's charter, must determine the...