Ontonagon R. Co. v. Norton, 93

• Decision Date: 04 October 1926
• Docket Number: No. 93,April Term.,93
• Citation: 236 Mich. 187,210 N.W. 480
• Parties: ONTONAGON R. CO. v. NORTON et al.
• Court: Michigan Supreme Court

236 Mich. 187

210 N.W. 480

ONTONAGON R. CO.

v.NORTON et al.

No. 93, April Term.

Supreme Court of Michigan.

Oct. 4, 1926.

Certiorari to Circuit Court, Ontonagon County; John G. Stone, Special Judge.

Condemnation proceeding by the Ontonagon Railroad Company against Denis J. Norton and others. A Commission found that it was unnecessary for plaintiff to acquire the land, and plaintiff removed the proceedings to the circuit court by certiorari. The circuit court set aside the findings, and referred the matter back to the Commission to find damages, and defendants bring certiorari. Order of the circuit court reversed, findings of the Commissioner set aside, and a new inquest ordered.

Argued before the Entire Bench.

Van Slyck & Bay, of Ontonagon, for appellants.

Rees, Robinson & Petermann, of Houghton (John Jones and Joseph M. Donnelly, both of Ontonagon, of counsel), for appellee Ontonagon R. Co.

BIRD, C. J.

The questions involved in this case grew out of a railway condemnation case. Plaintiff is the owner of a railroad about six miles in length, lying between Ontonagon and Green. It was originally constructed as a logging road by the MacMillan lumber interests, but is now also a common carrier of freight and passengers, and is subject to the rules of the Interstate Commerce Commission. The railroad was organized under the Train Railway Act. It connects at Green with the Chicago, Milwaukee & St. Paul Railway, and that railroad now, by force of certain agreements, operates its trains over it and has a joint use of it with its owner. At the time the railroad was constructed in 1904 it leased the land that is now in controversy for 20 years. When the lease expired these proceedings were begun to condemn that portion of the land which it had theretofore used under the lease. Upon its petition three commissioners were appointed by the court and a hearing had. The finding of the Commission was as follows:

‘We, the said commissioners, do further certify and report that after the testimony in said proceeding was closed, and after hearing the parties and viewing the premises above described, and materially considering the matters aforesaid, and being all present and acting, we did ascertain and determine that, while recognizing the necessity of a railroad, it is not necessary for the Ontonagon Railroad Company to acquire above-described right of way for public use and benefit as not set forth in said petition.’

Following this report the railroad company removed the proceedings to the circuit court by certiorari for review. The circuit court set aside the findings and held that, as a matter of law, the testimony did establish a public necessity, and he referred the matter back to the commissioners to find the damages. Defendants then obtained a writ of certiorari from this court, and we now have the proceedings before us for review.

The questions raised are: (1) The petitioner should have proceeded under the General Railroad Act (Comp. Laws 1915, § 8232 et seq.). (2) The court erred in finding a necessity, as a matter of law, being in direct violation of section 2 of article 13 of the Constitution of the state of Michigan. (3) The court erred in directing said commissioners to proceed to assess damages, as their finding of no necessity was final and conclusive.

1. We are not impressed that this contention is well taken. The Train Railway Act was passed in 1855, as Act 148. C. L. 1915, § 8500 et seq. Companies, under this act, were authorized to condemn lands for railway purposes, and the machinery provided for the condemnation of land by the Plank Road Act was invoked to determine the necessity and the damages. C. L. 1915, § 8691 et seq. We are unable to find that the Train Railway Act has ever been repealed. It is true, the Plank Road Act has been repealed, but this fact would not prevent the use of its condemnation machinery by corporations organized under the Train Railway Act. Counsel argues that the provisions of the General Railroad Act should have been used. It is possible that the General Act might have been used, but, if so, the general act was cumulative, not exclusive.

2. We are not of the opinion that the circuit judge could, from the testimony, find a public necessity. That question is confided by the Constitution to a jury, or three commissioners appointed by the court. The constitutional provisions which are material provide:

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