Mackie v. Jones, 478

• Decision Date: 11 October 1966
• Docket Number: No. 2,No. 478,478,2
• Citation: 145 N.W.2d 231,4 Mich.App. 420
• Parties: Petition of John C. MACKIE as State Highway Commissioner of the State of Michigan for Condemnation of Private Property for Highway Purposes in Casco Twp., St. Clair County, Mich., Plaintiff and Appellee, v. Thomas P. JONES and Frances Jones, Defendants and Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 231

145 N.W.2d 231

4 Mich.App. 420

Petition of John C. MACKIE as State Highway Commissioner of the State of Michigan for Condemnation of Private Property for Highway Purposes in Casco Twp., St. Clair County, Mich Plaintiff and Appellee, v. Thomas P. JONES and Frances Jones, Defendants and Appellants.

Cal. No. 478.

Court of Appeals of Michigan, Division No. 2.

Oct. 11, 1966.

Paul R. Jackman, Detroit, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Sp. Asst. Atty. Gen., Detroit, for appellee.

Before McGREGOR, P.J., and HOLBROOK and QUINN, JJ.

HOLBROOK, Judge.

This case involves condemnation proceedings originating in St. Clair County.

The State highway commissioner, appellee herein, held a hearing for determining necessity for taking of part of appellants' property and other contested parcels for improvement of US Highway 25, by order dated May 14, 1962.

August 28, 1962, a petition was filed by appellee in the circuit court requesting an order appointing commissioners to determine damages to be awarded to owners of all the parcels including the land of appellants designated therein as parcel C--7, pursuant to C.L.1948, § 213,171 et seq. (Stat.Ann.1958 Rev. § 8.171 et seq.). On December 12, 1962, the circuit judge ordered that February 18, 1963, be set for hearing the petition. The hearing was held and court commissioners were appointed by order dated February 18, 1963, which set April 15, 1963, as the date for the first meeting, and further ordered that the commissioners conclude their hearings by August 16, 1963, and make a report of damages awarded no later than August 23, 1963.

The hearings were not completed by the date set by the court, nor was a report made and filed. On September 26, 1963, the court, by written order, extended the time within which the commissioners could conclude their hearings to January 11, 1964, and further ordered that 'they shall file with this court a report in writing of their decision and award no later than 4:00 o'clock in the afternoon on the 18th day of January 1964.' This order was made with the acquiescence of the parties and therefore, is not before this court for review. Stone v. Posen (1945), 310 Mich. 712, 17 N.W.2d 870.

The commissioners completed their hearings as to appellants' property on December 6, 1963, but did not make their decision and report to the court until April 23, 1964. On May 4, 1964 appellants filed objections to the confirmation of the report by the commissioners, citing the same reasons as contained in this appeal. The award for damages because of the taking of appellants' property was set at $9,100.

On October 5, 1964, the court made a different order amending the original order of February 18, 1963, appointing court commissioners, extending the time for concluding hearings to April 16, 1964, and reporting date to April 23, 1964. This order was approved by indorsement of several attorneys for their clients, but was not approved either in the record or indorsed thereon by counsel for appellants. On the same date, October 5, 1964, the court ordered confirmation of all of the awards reported, including that of appellants.

Defendants Jones appealed and raise the following four questions for review:

'1. Is the trial court obligated to accept the award if it is within the range of testimony?

'2. Should the commission consider a legal and intended use of land applicable to determining its value?

'3. Is the commission obligated to find the total involved in the condemnation take?

'4. Does the inclusion of the subject parcel in a group of 11 contested cases and making an award some 4 1/2 months after testimony was taken on the instant parcel in abrogation of appellants' constitutional rights?' (sic)

We choose to consider the questions raised in reverse order for obvious reasons.

Appellants assert that the failure of court commissioners to make their decision and to report damages to be awarded for 4 1/2 months after hearing the proofs was in abrogation of their constitutional rights.

The controlling statute is P.A.1925, No. 352, and particularly the following:

'Sec. 13. On the day fixed as aforesaid, the court shall enter the default of all persons interested in the property described who have not appeared, * * * and the court shall also, unless sufficient cause to the contrary be shown appoint 3 disinterested persons commissioners, herein called court commissioners, whose duty it shall be to appraise the damages to be paid as compensation for the taking of the property described in the petition, in respect to which an appearance is made, for highway purposes * * * The court shall fix the time and place for the first meeting of such court commissioners, and require their attendance; it may also authorize the court commissioners to adjourn their meeting from time to time not later than to a day to be named, and Shall fix the time for filing their report.' (C.L.1948, § 213.183 (Stat.Ann.1958 Rev. § 8.184)).

'Sec. 16. The court commissioners shall appraise the damages to be paid as compensation for each such piece or parcel of property, and Shall report such decision in writing, signed by them or a majority of them, At or before the time fixed for that purpose, but it shall not be necessary for said court commissioners to report on all of such property at one time.' (Emphasis supplied.) (C.L.1948, § 213.186 (Stat.Ann.1958 Rev. § 8,187)).

The only effective order of the court required the hearings of the commissioners to be concluded by January 11, 1964 (accomplished December 6, 1963) and also required their decision and report as to awards to be completed by January 18, 1964 (not reported until April 23, 1964). There were several appraisers who testified concerning the appellants' property. At the hearings, the appellants asserted that the highest and best use of the land for the purpose of ascertaining damages was for a trailer court. Appellants had purchased the land for this purpose in 1956, and from that date until 1960 had expended nearly $4,000 to improve the land for trailer park purposes. These claims were contested by the appellee and the facts and the issue raised thereunder was a complicated one for laymen to determine without proper rulings on the evidence and instructions on the law from the court. A just determination of appellants' claims could more readily have been made if accomplished as soon as possible after the conclusion of the commissioners' hearings while the facts and issues were still fresh in mind.

The legislature could not set forth specific time limits within which commissioners should make their reports because of the wide variances and difficulty which occur between various cases. Instead, this duty was placed in the hands of the trial judge, who can more accurately fix the time limit in each particular case. The statute placing this function with the trial judge should be construed, if possible, so as to prevent injustice. Zawacki v. Detroit Harvester Co. (1945), 310 Mich. 415, 17 N.W.2d 234; Attorney General, ex rel. Common Council of the City of Detroit v. Marx (1918), 203 Mich. 331, 168 N.W. 1005. The duty of the trial court in setting the time limit, coupled with the duty of the commissioners to report within that time effectuates the important interest of those whose property is being condemned in securing a speedy determination of their claims. Section 13, by reason of the use of the word 'shall', required the judge to fix the time for filing the commissioners report. Section 16, by reason of the use of the word 'shall', made it mandatory upon the commissioners to report their decision in writing at or before the time fixed for that purpose. We rule that the provisions of the eminent domain statutes should be construed strictly and the word 'shall' be given its usual meaning requiring mandatory compliance. The failure of the commissioners to report their decision an make their awards in accord with the order of the court on or before January 18, 1964 was fatal. We conclude that a minimum requirement would dictate that the commissioners decide and report their findings in accordance with the mandatory provisions of the statute and the order of the court. In People on Behalf of the State Board of Education v. von Zellen, 1 Mich App. 147, pp. 155, 156, 134 N.W.2d 828, p. 832, we said:

'The law of eminent domain permitting the taking of private property for public use is a harsh remedy and therefore, the courts have required strict compliance with the particular provisions of the law upon which the action was based.

'In In re Petition of Rogers (1928), 243 Mich. 517, on p. 522, 220 N.W. 808, on p. 810, it is stated:

"The statute of eminent domain is to be strictly construed and its jurisdictional conditions must be established in fact and may not rest upon technical waiver or estoppel.' * * *

"And in Detroit Sharpshooters' Association v. Highway Commissioners, 34 Mich. 36 (, 37):

"'The rule is well settled, that in all cases where the property of individuals is sought to be condemned for the public use by adverse proceedings, the laws which regulate such proceedings must be...