In re Huron-Clinton Metropolitan Auth.

• Decision Date: 07 September 1943
• Docket Number: No. 45.,45.
• Citation: 306 Mich. 373,10 N.W.2d 920
• Parties: Petition of HURON-CLINTON METROPOLITAN AUTHORITY. In re BELLEVILLE LAKE PARK PROJECT.
• Court: Michigan Supreme Court

306 Mich. 373

10 N.W.2d 920

Petition of HURON-CLINTON METROPOLITAN AUTHORITY.

In re BELLEVILLE LAKE PARK PROJECT.

No. 45.

Supreme Court of Michigan.

Sept. 7, 1943.

Proceeding by the Huron-Clinton Metropolitan Authority to condemn property in Van Buren Township, Wayne County, for public use and benefit for parkway purposes, limited access highways and connecting drives, known as the Belleville Lake Park project. From an order denying petitioner's motion to amend the petition and dismissing the proceeding, petitioner appeals.

Order vacated and set aside, and case remanded with directions.

BOYLES, C. J., dissenting in part.Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Before the Entire Bench.

John P. O'Hara, of Detroit, for Huron-Clinton Metropolitan Authoity.

Tinkham & Snyder, of Wayne, for certain respondents and appellees.

James R. Breakey, Jr., of Detroit (Ronald R. Weaver, of Detroit, and J. Don Lawrence, of Ypsilanti, of counsel), for Harry Mosley and others.

Jorgensen, Alexander & Matheny, of Detroit, for Gerald Stoddard and others.

Levin, Levin, Garvett & Dill, of Detroit (Earlmont H. Dill, of Detroit, of counsel), for respondents.

STARR, Justice.

Huron-Clinton Metropolitan Authority (herein referred to as the ‘Authority’) appeals from an order dismissing its petition for the condemnation of certain lands in Van Buren township, Wayne county, for public park purposes.

The Authority is a public corporation created by Act No. 147, Pub.Acts 1939, Comp.Laws Supp. 1940, § 2289-1 et seq. (Stat.Ann.1942 Cum.Supp. § 5.2148(1) et seq.) for the purpose of planning, developing, and maintaining parks, limited access highways, and recreational facilities within a district composed of Wayne, Washtenaw, Oakland, Livingston, and Macomb counties. The constitutionality of said act, which gives the Authority power to acquire land for its purposes by purchase, gift, devise or condemnation, was upheld in Huron-Clinton Metropolitan Authority v. Boards of Supervisors, 300 Mich. 1, 1 N.W.2d 430.

On July 10, 1942, the board of commissioners of the Authority adopted a resolution authorizing the institution of proceedings under 1 Comp.Laws 1929, § 3763 et seq., as amended (Stat.Ann. § 8.11 et seq.), to acquire certain privately-owned lands on the northerly side of Belleville lake in Van Buren township, Wayne county, for the purpose of establishing a public park. In pursuance of such resolution, on September 3, 1942, the Authority filed petition in circuit court to condemn 110 parcels of land containing approximately 1,000 acres. Such petition asked that a jury be impaneled to determine whether or not it was necessary to make such public improvement; whether or not it was necessary to take such private property for the use and benefit of the public; and to ascertain and determine the just compensation to be paid therefor. An order was entered for the appearance of those persons named in the petition as having an interest in said property, and such order was phblished and personally served as required by 1 Comp.Laws 1929, § 3769, as amended by Act No. 296, Pub.Acts 1941, Comp.Laws Supp. 1942, § 3769 (Stat.Ann.1942 Cum.Supp. § 8.17).

On November 2, 1942, a jury was impaneled and sworn. On November 5, after the jury had viewed the property, the taking of testimony was begun with a circuit judge presiding. Three witnesses testified regarding the necessity of the proposed public improvement. While the third witness was testifying, an attorney representing the owners of parcels numbered 31, 32, and 33 of the lands sought to be condemned, filed appearance, and upon his request the proceedings were adjourned until November 17. On the adjourned date, in the presence of the court and jury, such attorney made the following statement and motion:

‘Your honor, last Friday I filed an appearance in this matter in behalf of Emma Dahlinger, who is the owner of parcel 32 in this proceeding. * * * And also in behalf of parcels 31 and 33, which are owned by the Quirk Farms, and the Quirk Farms, Inc., are all owned by Mr. Henry Ford. Our objection * * * was to the taking over of this parcel 32, on which is erected quite an expensive home for Mrs. Dahlinger. * * * She is an elderly lady. She was connected with the Ford organization in its early days, and Mr. Ford helped her build this home, and I am informed that they put in close to, in landscaping and straightening out the land and everything, and the building itself, approximately $150,000 in that home. Now, that was our primary objection.

‘I am satisfied that the petitioner here, the Huron-Clinton Authority, did not fully realize or appreciate the value of this parcel 32. That is the extent of the money that was involved, and when that was called to their attention they agreed to withdraw parcel 32, and on that being done Mr. Ford had no further objection, and he agreed to deed to the Authority, providing, depending on the outcome of this proceeding, of course, * * * parcels 31 and 33 without cost.

‘So, therefore I move at this time that parcels 31, 32 and 33 be withdrawn from this proceeding.'

At this point the Authority's counsel stated that it was considered advisable to accept a donation of parcels 31 and 33 and to amend the petition by withdrawing parcels 31, 32, and 33, but that such matter would have to be acted upon by the board of commissioners of the Authority. Thereupon, several attorneys representing respondent land owners moved for dismissal of the entire proceedings, on the ground that it was invalidated by the withdrawal of said parcels. The hearing was then adjourned until November 19.

On such adjourned date the Authority moved to amend its petition by withdrawing parcels 31 and 33, owned by the Quirk Farms Company, and parcel 32, owned by Emma Dahlinger, and also parcels 12, 72, 80 and 110, owned by the Detroit Edison Company. In support of such motion the Authority presented the following resolutions adopted by its board of commissioners on November 17:

‘Whereas, in the course of the trial of the condemnation case for property adjacent to Belleville lake the Quirk Farms Company has offered to donate parcels No. 31 and 33 under certain conditions, and

‘Whereas, it appears that improvements have been made on that part of parcel No. 32, owned by Emma Dahlinger, which might make its acquisition in these proceedings unduly expensive.

‘It is hereby resolved that the chairman be and is hereby authorized to accept the donation of parcels No. 31 and 33 and to authorize the withdrawal of that part of parcel No. 32 owned by Emma Dahlinger from the condemnation proceedings provided the terms of such donation and withdrawal are satisfactory to him, and

‘Be it further resolved, that John P. O'Hara, attorney for the Huron-Clinton Metropolitan Authority, is hereby authorized on the instructions of the chairman to amend petition for condemnation and to take such other proceedings which are necessary to withdrawal from the condemnation proceedings of parcel No. 31, that part of parcel No. 32, owned by Emma Dahlinger and parcel 33.'

‘Whereas, in the course of the trial of the proceedings for the condemnation of land adjacent to Belleville lake an offer has been submitted by the Detroit Edison Company to sell to the Huron-Clinton Metropolitan Authority parcels No. 12, 80 and 110 at the price of $100 per acre, plus the cost of improvements on parcel No. 80, and to donate the right of access to Belleville lake on the northerly side thereof, in consideration of the withdrawal from such proceedings of parcel No. 72, and

‘Whereas, parcel No. 72 has expensive buildings and already is and will continue to be used for recreational purposes.

‘It is hereby resolved, that the chairman be and is hereby authorized to accept the offer of the Detroit Edison Company subject to his approval of the terms thereof, and

‘Be it further resolved, that John P. O'Hara, attorney for the Huron-Clinton Metropolitan Authority, is hereby authorized on the instructions of the chairman to amend petition for condemnation and to take such other proceedings which are necessary to withdrawal from the condemnation proceeding of parcels No. 12, 72, 80 and 110.'

The donation of Parcels 31 and 33 by the Quirk Farms Company was to be by deed containing the following reverter provision: ‘This deed is upon the condition subsequent that in case the Huron-Clinton Metropolitan Authority shall fail to acquire for its statutory purposes title to a majority of the acreage lying north of Belleville lake and south of Chase road in Wayne county, Michigan, within a period of three years from this date, or shall within a period of five years from date hereof fail to commence development for its statutory purposes of such property as it acquires then the title to the above described property shall revert to and be reinvested in the grantor, its successors and assigns.'

The jury was excused during the extended arguments on the Authority's motion to amend its petition and on the motions of certain respondent land owners to dismiss the entire proceedings. In denying the Authority's motion to amend its petition and in granting the motions to dismiss, the court stated in part:

‘We all agree that in what was done here there was no fraud. There was no bad faith, and there was no abuse of discretion. A question mark should be put under that last heading. But changing my mind back and forth, and back and forth, as the argument proceeded, * * * I go back time and time again during all of this argument to the proposition that * * * it just doesn't seem fair. * * *

‘I think we can all agree that the Authority can purchase parcels and that the owner and the Authority can agree on the price; but I am still not satisfied that the Authority can accept as a gift one parcel, or agree upon the price of one parcel if as a part of the same transaction another parcel is to be withdrawn, which after all, as counsel have stated, is really an...