Knudinger v. City of Saginaw

• Decision Date: 27 January 1886
• Citation: 59 Mich. 355,26 N.W. 634
• Court: Michigan Supreme Court
• Parties: KNUDINGER v. CITY OF SAGINAW.

26 N.W. 634

59 Mich. 355

KNUDINGER v. CITY OF SAGINAW.

Supreme Court of Michigan

January 27, 1886

Certiorari.

Trask, Grout & Smith, for petitioner.

F.E Emerick, for respondent.

CHAMPLIN, J.

This writ was sued out for the purpose of obtaining a review of the proceedings had by the city of Saginaw in laying out opening a street in that city, and taking private property therefor, including therein the property of plaintiff in error. He claims (1) that title 4 of the charter, being local act No. 227 of the Laws of 1883, under which the condemnation proceedings were had, is null and void for eight reasons:

"(1) It nowhere requires the jury who are to condemn the land to be composed of parties not interested in opening the street. A juror has simply to swear that he is not interested in the property to be taken. He may have a strong interest in opening the street, and yet he can sit as one of a tribunal to decide upon the necessity for the street."

We do not perceive any foundation for this objection. The property owner is entitled to an impartial, as well as a disinterested, jury; and a juror who is specially interested in having the street opened by reason of some special gain or convenience to him, which he expects to derive more than the community generally, is disqualified, and may be challenged and rejected for cause.

"(2) It assumes to bunch together in one suit or proceeding the separate interests of any number of parties, some of which parties may be and frequently are hostile to one another."

"(3) It deprives the parties whose lands are to be taken of all choice in the selection of the jury, by requiring all the parties to agree upon the six names 'which they have a right to strike off; and, in default of such agreement authorizes the agent of the city--that is, the justice selected by it--to strike off the six names.' "

These two objections may be considered together. While proceedings against separate interests may appear somewhat incongruous and the obtaining the jury sometimes perplexing, through the diversity of interests of the parties, yet all substantial rights are secured by the law, and it has not been found in practice to be so objectionable as appears upon the face of the objection. The jury, in determining the necessity of taking a single parcel of land, must first determine whether the public necessity requires the proposed street for use as a street, and in doing so must consider the proposed improvement as a whole, and determine whether a necessity exists for the use of such street by the public generally. And in passing upon this question the jury would determine whether the corporate authorities were endeavoring to take more land or more private property than the public need required for the purposes of a street, and, if so, they would determine against the necessity; for the right to condemn is limited by the public necessity for street purposes. If they find in the affirmative upon this question, they then proceed to particulars, and inquire and determine whether the land described of the individual is required to be taken for such public use, and, if so, they must determine and award the damages and compensation to which he is entitled for taking such land for such purpose. It is not perceived that any difficulty can arise in the same jury making the inquest upon each parcel of land taken. The evidence introduced is separate in each case, and pertains to the parcel under consideration. Indeed, it would be practically impossible to open a street if there were to be as many juries called as there were separate owners of property to be taken. The conclusions at which juries arrive from evidence are incapable of being estimated with mathematical certainty, and different jurors, from the same evidence, may reach different conclusions; and while one jury might determine in favor of the necessity for the public use, another might determine the question in the negative. We think neither the constitution nor the statute contemplates or requires more than a single jury to pass upon the questions involved in condemnation proceedings within the vicinage of which such jury is impaneled, and the method of obtaining it is a matter of legislative discretion. Houghton Common Council v. Mining Co., 24 N.W. 821; Brush v. Detroit, 32 Mich. 43.

"(4) It does not require any personal notice to be served on the owners of the land, even though they reside in the city."

The charter provides that whenever the common council shall, by resolution, declare that it is necessary to lay out and establish a street across private property, the resolution shall describe with reasonable certainty the lands it will be necessary to take or cross therefor, and shall fix a time and place when and where the council will treat with the owners of such lands for the right of way across the same. The controller shall cause a written or printed copy of such resolution, with a notice calling attention thereto, to be posted in or near the lands required, and also in three public places in the city, at least 10 days before the time fixed in such resolution. If the city fails to agree with the owners for a release of the right of way, the council may direct the city attorney to apply to a justice of the peace to impanel a jury, and he is required to give notice of the intended application by publishing the same in some newspaper, printed and circulated in said city, once a week for three successive weeks, before the time fixed for making the application. These are all the notices of the proceedings which the statute by its terms requires. Proceedings to acquire private property for the public use are essentially adversary, and notice of some kind is essential to their validity. The right of eminent domain is recognized in all governments over civilized communities, whatever their form. It attaches as an incident to every sovereignty, and constitutes a condition under which all private property can be held. It is paramount, and, wherever the public necessity requires its exercise, the rights of the individual must yield. In this state the constitution provides that, when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of 12 freeholders residing in the vicinity of the property, or by not less than three commissioners, appointed by a court of record; and in cities and villages private property shall not be taken for public improvements without the consent...