In re Woodward Ave. in City of Detroit

• Decision Date: 08 April 1941
• Docket Number: No. 26.,26.
• Parties: In re WOODWARD AVENUE IN CITY OF DETROIT.
• Court: Michigan Supreme Court

297 Mich. 235

297 N.W. 468

In re WOODWARD AVENUE IN CITY OF DETROIT.

No. 26.

Supreme Court of Michigan.

April 8, 1941.

Proceeding by the Board of County Road Commissioners, on behalf of the County of Wayne, against Harold and Winifred Palmer, his wife, and the City of Detroit for the purpose of condemning certain lands in the City of Detroit in order to widen and change Woodward Avenue in the City of Detroit, Wayne County, Michigan, from the intersection thereof with Seven Mile Road, southerly to the intersection thereof with the Six Mile Road. From a verdict in their favor of six cents, the defendants Harold and Winifred Palmer appeal.

Judgment reversed, and a new trial granted.

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

Argued before the Entire Bench.

Leland Kennedy, of Detroit (Eugene J. Fisher, of Detroit, of counsel), for appellant.

Harry S. Toy and Elmer G. Rice, both of Detroit, for appellee.

SHARPE, Chief Justice.

The board of county road commissioners on behalf of the county of Wayne instituted proceedings against Harold and Winifred Palmer (his wife) and the city of Detroit for the purpose of condemning certain lands in the city of Detroit in order to widen Woodward avenue between Six and Seven Mile roads. The land involved adjoins the original Woodward avenue on the west. It has a depth of 121 feet and a length of 684.42 feet along Woodward avenue.

Some time prior to 1899, Senator Thomas W. Palmer dedicated to the city of Detroit a parcel of land containing 133 acres which has since been used and known as Palmer Park, and which lies immediately west of the land in issue in this cause. Subsequent to the above dedication and on September 25, 1899, Thomas W. Palmer and wife, as owners in fee, executed a deed of gift to the city of Detroit of additional property which then fronted on Woodward avenue and in which the land in issue was included. The purpose of the above gift was stated in the deed as follows:

‘The driveways and Street ‘A’ connecting said driveways as shown on Map, we hereby dedicate to the perpetual use of the public, reserving to ourselves, our heirs and assigns, the reversion or reversions thereof whenever discontinued by law.

‘The intent and purpose of this indenture is to convey to the City of Detroit the above described land and premises to be used only as a Boulevard or ornamental avenue of access from Woodward Avenue to Palmer Park and for such use only the land above described is conveyed in perpetuity, which said land is to be improved and property cared for by the grantee herein, the said grantee to maintain a roadway or roadways which as in the roadways surrounding the Park to which this appertains, are hereby dedicated to the use of the public forever and such parts of said land as are not used as roadways or footwalks shall be kept sodded and ornamented with trees, shrubs and flowers, provided however, that said parties of the first part shall have the right to connect with what is known as Palmer Park sewer or such other sewer as may be maintained by the grantee herein in such manner and by such drain as will afford necessary and proper drainage to the premises and buildings now owned or occupied by or reserved to the use of the parties of the second part.

‘And provided further that nothing in this conveyance contained shall be so construed as to prevent owners of abutting property from a reasonable use of said Boulevard, or to defeat reversion to the grantor or his heirs in case said property should ever be used for any other purpose than those above designated or shall be wholly abandoned or vacated by the grantee and provided, also, that access to the property of abutting or neighboring owners by teams and wagons for the purpose of furnishing such owners with domestic supplies shall not be denied * * *.’

The sole heir of the grantors, Thomas W. Palmer and wife, is the respondent Harold Palmer and as such he is the present owner of the interest reserved in the deed.

The deed of gift was accepted by the city of Detroit and has been used as an ornamental avenue of access to Palmer Park. Woodward avenue as originally laid out was 66 feet wide. Prior to the present action, the city of Detroit, without instituting condemnation proceedings, used 17 feet more land along the west side of Woodward avenue for highway purposes. The property so used is included in the present controversy. At the time of this taking, the paved portion of Woodward avenue proper had been extended three feet over the easterly side of the 17 feet and the remaining 14 feet were used by the city for things incident to a street, including sidewalks along Woodward avenue.

During the trial of the cause, the city of Detroit requested that the jury return a verdict in the amount of six cents. The jury returned a verdict declaring for necessity and fixing compensation as to the city of Detroit in the sum of six cents. The verdict was confirmed by order of the trial court and the city has taken no appeal. The jury also returned a verdict for defendants Palmer in the sum of six cents which was confirmed by order of the trial court.

Defendants Palmer appeal and contend that the trial court was in error in denying their motion to dismiss based on the fact that no effort to purchase the property was made prior to the condemnation proceedings; that the property reverted to defendants when the same was used as a part of the superhighway; that the court and jury erred in refusing to find an abandonment by the city of Detroit of a portion of the premises which previously had been used as a part of Woodward avenue; that the court and jury erred in refusing to find that the interest of appellants was a substantial interest; that the court and jury was in error in refusing to find that the city of Detroit was the party petitioner; that the remarks and arguments to the jury by counsel for the city of Detroit amounted to reversible error; and that it was error upon the part of the trial court to refuse a new trial for the reasons stated in appellant's motion.

Appellee urges that there has been no abandonment of the property by the city of Detroit; and that such a question may not be decided in condemnation proceedings. It appears to us that the issue of whether appellants may raise the question of abandonmentin the present proceedings is of primary importance to decision in this case. In deciding this question we have in mind that the record title of parcel 15 according to the petition filed in the cause indicated the city of Detroit to be the owner of this parcel and the appellants Palmer to be the reversioners; that for some time prior to the institution of the present proceedings the easterly 3 feet of the 17 feet had been covered by the pavement of Woodward avenue and the balance of the 17 feet had been used for sidewalk and public utility purposes; that there has never been any condemnation of this 17-foot strip of land; and that appellants, prior to taking of testimony in the trial of this cause, served on the city of Detroit and the board of county road commissioners a written notice to the effect that the right of the city of Detroit to use and possess the land described in the deed of 1899 had ceased and terminated and that all rights in and to said land had reverted to Palmer because of misuse of the land by the city of Detroit. The notice also demanded that the city of Detroit and the board of road commissioners immediately quit and surrender said land. The above notice was the only affirmative action taken by appellants to recover possession of said lands.

The function of the jury in this condemnation proceeding is specifically set out in 1 Comp.Laws 1929, § 3772, which reads as follows: ‘The jury shall determine in its verdict the necessity for the proposed improvement or for the accomplishment of the proposed purpose, and for taking such private property for the use or benefit of the public for the proposed improvement or for the accomplishment of the...