Marquette, H. & O.R. Co. v. Houghton Probate Judge

• Decision Date: 09 April 1884
• Citation: 53 Mich. 217,18 N.W. 788
• Parties: MARQUETTE, H. & O.R. CO. v. HOUGHTON PROBATE JUDGE.
• Court: Michigan Supreme Court

18 N.W. 788

53 Mich. 217

MARQUETTE, H. & O.R. CO. v. HOUGHTON PROBATE JUDGE.

Supreme Court of Michigan

April 9, 1884

A motion to set aside a report of commissioners condemning property is proper.

A probate court has authority to set aside, for good cause shown, a report of commissioners condemning property; and if the amount awarded is unreasonable, and indicates that it resulted from prejudice or partiality, or that the commissioners must have acted upon a wrong basis in estimating the damages, it is a good cause.

Evidence as to the value of the property condemned, and the resulting damages, while admissible, is not controlling. It consists of the opinions of witnesses simply, and should not, ordinarily have greater weight than the official report of the commissioners who considered all the evidence.

Commissioners should be free from prejudice or undue influence.

It is proper to file an affidavit of one of the commissioners in support of a motion to set aside their report. They are not like a common-law jury, and their own affidavit may be used to impeach their finding, or show that they proceeded upon a wrong principle in the ascertainment of damages. The rule on which they act is a fact, and may be shown as any other fact.

All parties concerned are entitled to the intelligent judgment of the commissioners upon the appraisement of damages, and any agreement in advance which shall leave the amount as the result of chance cannot be upheld. But where the commissioners had each announced how much the award ought to be, and then agreed to add the sums together, and divide by three, and make the quotient the award, it is a fair way of affecting a compromise, and is unobjectionable.

On a motion to set aside the report of commissioners condemning property, whether the facts shall be brought to the knowledge of the court by affidavit or by oral testimony is in the discretion of the court, and the court has power to require the production and cross-examination of witnesses.

Where an order, confirming a report of commissioners condemning property, was made upon a relator's motion, and the relator, after applying for a writ of mandamus, has made use of the order as a basis for obtaining substantial rights and divesting the owners of the property, he is not in a position to complain of error in the action of the court in confirmation, and the writ will not be granted.

To disturb the order of confirmation in such a case would be to leave the compensation undetermined, and the owner divested when the compensation is a constitutional condition precedent to the taking, and such taking can only be lawful when its necessity, as well as the measure of compensation, have been determined in a legal way. The necessity of a corporation for the immediate use of land will not nullify constitutional safeguards to the rights of private property.

CHAMPLIN, J.

In July, 1883, the relator commenced proceedings in the probate court of Houghton county for the condemnation of certain lands for railroad purposes. Commissioners were duly appointed and qualified under the law, and proceedeed to the condemnation of a parcel of land designated in the petition as parcel No. 4, belonging to Johnson Vivian and Stephen L Prince. The commissioners made their report on the fifteenth day of August, 1883, and filed it in the probate court. On the twenty-ninth day of August, petitioners filed a motion with the probate court to set aside the finding and report of the commissioners, upon the following grounds:

"(1) Because the damages and compensation found by said commission are excessive and exorbitant. (2) Because said commission included in such damage and compensation large sums of money, to-wit, the sum of nine hundred and ninety-nine dollars for loss of profits in the fuse business during the interruption of the same, and the sum of five hundred and twenty dollars for loss estimated to accrue to Stephen L. Prince, one of the owners of said property, and his family, in wages while the factory should be stopped, and the sum of three hundred and thirty-seven dollars, or thereabouts, for loss of business to arise from the removal of the fuse factory to another site, without any evidence whatever on which to found the same. (3) Because said commission included in said finding the sum of three hundred dollars as the loss of Stephen L. Prince, one of the owners of said property, in removing therefrom, and the cost of the same. (4) Because said commission grossly overestimated the value of said land and the structures thereon and the damage done thereto. (5) Because said commissioners each separately arrived at what the total award ought to be, and agreed to add together the said several sums so arrived at, and to divide the sum by three, and make the quotient their award, and did so. (6) Because said commissioners allowed as damages to and compensation for said real estate a larger sum than the entire value of the whole of said real estate.

"This motion is founded upon the affidavits of Matthew Van Orden, Richard M. Hoar, Philip Scheuermann, and Thomas W. Edwards, filed herewith, and upon other affidavits hereafter to be filed, and upon the report of said commissioners on file herein, and upon the record of said proceedings, and upon the testimony of such affidavits and such other testimony as petitioner may produce on the day of hearing."

Notice of the hearing of this motion was given for September 3, 1883. On that day the petitioner filed with the probate court its objections to the report, as follows: "(1) That the damages and compensation found by said commission are excessive and exorbitant. (2) That said commission included in said damages and compensation large sums of money, to-wit, the sum of nine hundred and ninety-nine dollars for loss of profits in the fuse business during the interruption of the same, and the sum of five hundred and twenty dollars for loss estimated to accrue to Stephen L. Prince, one of the owners of said property, and his family, in wages while the factory should be stopped, and the sum of three hundred and thirty-seven dollars, or thereabouts, for loss of business to arise from the removal of the fuse factory to another site, without any evidence whatever on which to found the same. (3) That said commission included in said finding the sum of three hundred dollars as the loss of Stephen L. Prince, one of the owners of said property, in removing therefrom, and the cost of the same. (4) That said commission grossly overestimated the value of said land and the structures thereon, and the damages done thereto. (5) That said commissioners each separately arrived at what the total award ought to be, and agreed to add together the said several sums so arrived at, and to divide the sum by three, and make the quotient their award, and did so. (6) That said commissioners allowed as damages to and compensation for said real estate a larger sum than the entire value of the whole of said real estate. (7) That the garden, trees, and shrubs valued by said commissioners at eight hundred dollars are grossly overvalued, and are not worth to exceed two hundred dollars. (8) That Josiah Paull, one of said commissioners, after being appointed a commissioner, and before the finding of damages was made, and while charged with his duty as such commissioner, received privately from said Vivian, or from said Prince, or from some one in their behalf, a written paper containing a list of the structures and other property upon said land, together with valuations of the same and of the land, and of the damages assumed to be done thereto by the railroad, amounting to $11,000, or thereabouts, and was influenced by the same in his deliberations as a commissioner. (9) That the, 'garden' mentioned in M. Van Orden's affidavit in support of the motion heretofore made does not exceed 30X100 feet in size, nor $300 in value, and that the strip of land sought to be taken crosses the same." And offered to establish the above causes by the oral testimony of witnesses then in the court-room, and by affidavits.

This was met by a counter-motion from the attorneys of Messrs Vivian and Prince to strike the affidavits from the files, and to refuse to hear testimony in opposition to the commissioners' report, on the ground that such affidavits and oral testimony of witnesses were incompetent and inadmissible on the hearing of a motion to set aside the report. The probate court denied petitioner's motion, and granted that of Messrs. Vivian and Prince; and before any motion was made for a confirmation of the report, the petitioner applied to this court for an order on the probate judge to...