Mackie v. Green

• Decision Date: 10 January 1967
• Docket Number: No. 3,C--,No. 957,957,3
• Citation: 147 N.W.2d 427,5 Mich.App. 583
• Parties: Petition of John C. MACKIE as State Highway Commissioner of the State of Michigan, for condemnation of private property for highway purposes in Green, Wilson and Alpena Townships, Alpena County, Michigan, Appellant, v. Hugh E. GREEN and Edna G. Green, husband and wife, Property Owners, Parcel32, Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 427

147 N.W.2d 427

5 Mich.App. 583

Petition of John C. MACKIE as State Highway Commissioner of the State of Michigan, for condemnation of private property for highway purposes in Green, Wilson and Alpena Townships Alpena County, Michigan, Appellant, v. Hugh E. GREEN and Edna G. Green, husband and wife, Property Owners, Parcel C-- 32, Appellees.

Cal. No. 957.

Court of Appeals of Michigan, Division No. 3.

Jan. 10, 1967.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Asst. Atty. Gen., Lansing, Thomas D. Stone, Sp. Asst. Atty. Gen., Midland, for appellant.

Donald K. Gillard, Alpena, for appellees.

Before BURNS, P.J., FITZGERALD and T. G. KAVANAGH, JJ.

FITZGERALD, Judge.

In the widening and improvement of highway M--32 in 1963, it became necessary for appellant to take 3.1 acres of the Green's 120 acre farm. Of the 3.1 acres, 3 acres were already subject to a 1931 easement similar to those in Michigan State Highway Commission v. Flanders (Same v. English) (1966), 5 Mich.App. ---, 147 N.W.2d 441.

The taking brought the new right-of-way line 6 feet closer to appellee's house and a foot or two from his front steps. During the period of highway construction, the taking included a temporary right to enter upon a 15 acre site and remove borrow material along a haul road covering 3.8 acres. In removing 60,000 cubic yards of sand and topsoil, appellees destroyed roughly 5 acres of young Christmas trees.

Before the court commissioners, the State offered expert testimony to show that the value of the entire property was $21,120 before the taking and $19,089 after the taking. The difference of $2,031 was argued to be full compensation.

The landowner's expert real estate appraiser testified that the Greens had suffered a total of $10,946.50 in damages calculated as follows:

                "1/10 of additional right of way taken                      $    12.50
                Conversion of old right of way easement to fee                   50.00
                Cost of moving house                                          4,384.00
                Loss of trees (approximately)                                 3,500.00
                60,000 cubic yards of sand, etc. at 5 cents per cubic yard    3,000.00
                                                                            -----------
                Total                                                       $10,946.50"
                The trial court instructed the commissioners as follows
                

'The first instruction is in connection with the Christmas trees because I believe this is the only case in which there were any trees. Now, the instruction of the Court in this particular case is that you will treat it in the same manner as you treat the gravel or the sand.

'In other words, on a unit value. You will use the same yardstick. So in that connection I charge you that you will use the same yardstick in determining the loss in connection with the Christmas trees; in other words, on a unit value. And so you will find in that connection that the amount of the owner's loss or the amount that would make him whole would be the number of trees as multiplied by the cost per tree.

'Now, you have the testimony before you by the various witnesses as to the number, and so you have that in mind. And also the cost as testified to by the various witnesses. So that is the instruction of the Court relative to the trees.

'I also charge you that in connection with the building--on the chart we have referred to it many times during the testimony as 'A'. You will recall that. And we have in the Green case the same situation we had in the Flanders and the English case where there was a covenant in connection with the deed, and you will recall my instructions in connection with the covenant and the breach thereof. So I won't need to go into that again.

'The question here in order to do adequate justice in the face of this covenant is what damages should be awarded in the face of the testimony that you had before you in this case. It raises this question: Should the owner be entitled under these circumstances to have his residence moved back so that he would be in the same position to the highway as it was before the condemnation? I charge you that in this case that the evidence disclosing that the right-of-way has been taken right up to the front of the house so that the entire front yard has been destroyed; that in this connection that it would amount to a violation of that covenant in the deed.

'And so in this case the violation of the covenant having been effected, then you could arrive at damages in several ways except that the only testimony you have in this case is the testimony by the property owner that he would be made whole by moving the property back a number of feet. And you have the cost in that connection of moving it back. So you may take that into consideration in arriving at your decision in this case: The cost of moving and asking (making?) the landowner whole. * * *

'I charge you that there would be another method of determining damages if there had been the testimony before you, before and after, where the property had been depreciated by the fact that the front yard had been taken away, but we haven't any testimony in that respect, so you will be limited to the testimony that you have here given by the property owner.

'Now, I have also been requested by the State to ask you to make individual findings. So in connection with the Green case you will make individual findings as to the amount of the borrow, the damages for the borrow. Secondly, individual findings as to the damages for the loss of the trees. And third an individual finding in connection with the damages to the property by reason of the fact that the State exercised its right in taking the fee right up to the edge of the home. So you will make individual findings in each case and report them in that respect.'

The commission's award...