People ex rel. Green v. Michigan Southern Railroad Co.

• Decision Date: 01 January 1855
• Citation: 3 Mich. 496
• Court: Michigan Supreme Court
• Parties: The People ex rel. Green v. Michigan Southern Railroad Company

3 Mich. 496

The People ex rel. Green v. Michigan Southern Railroad Company

Supreme Court of Michigan

January 1, 1855

This was an application upon an agreed statement of facts, for a peremptory mandamus to compel the respondents to cause to be appraised and paid, the damages of the relator on account of constructing, using and occupying their road, upon and across his land, being the west half of southeast quarter of sec 17, township 7 south, of range 1 west, in the county of Hillsdale, and lying east of the village of Hillsdale. The facts are fully stated in the opinion of the court.

Motion for a mandamus denied.

W. T Howell, for relator.

H. H Emmons, and Baker & Millerd, for respondents.

OPINION

By the Court, Green, P. J. The Michigan Southern Railroad was located across the lands described in the statement of facts agreed upon in the summer of 1838, and completed and brought into use by the state of Michigan in the year 1844, and in 1846 the respondents came into possession of the road under their charter, and have used and occupied it ever since. No damages were ever assessed, tendered or paid on account of said railroad crossing the lands, either by the state or by the company, and no claim for damages was ever made by the owner or occupant of the land against the state of Michigan. The relator became the owner of the land in October, 1851, since which time he has frequently applied to the said railroad company for compensation for his land occupied by them, or that his damages should be assessed and paid under the provisions of the charter of the respondents.

Had the state acquired the right to use these lands for the purposes of the road prior to the sale thereof to the Michigan Southern Railroad Company in 1846?

If so, that right passed to the company under their contract with the state, and is now in the respondents.

In order to determine this question it is necessary to review the various statutes from time to time enacted by the legislature in regard to the acquisition of lands for the purpose of railroads in this state, and to the settlement and payment of claims for damages on account of the appropriation of private property for such uses.

By "an act for the regulation of internal improvements and for the appointment of a board of commissioners," approved March 21, 1837 (Laws of 1837, p. 193), provision was made for the appointment of a board of commissioners, who were constituted supervisors of the public works of the state, and who were vested with the care and superintendence of all canals, railroads, etc., to be constructed by the state.

The fifteenth section vested in the commissioners all the power necessary for the location, construction and repair of railroads, etc., and authorized them, their agents, or those with whom they should contract, to enter upon, use, and excavate any lands that might be wanted for the site of the same, or any other purpose in the construction or repair thereof, and contained the following clause: "Every person interested in premises through or over which any canal, railroad or other improvement may be located by and under the direction of the board of commissioners, and claiming damages for the same, or any other damages arising from such works, shall, within one year after the damages claimed shall have accrued, exhibit to the board of commissioners a statement of his claim in writing, signed by himself, his guardian or agent, specifying the nature and extent of his claim for damages, and any person neglecting or refusing to exhibit such claim within the time prescribed shall be deemed to have surrendered to the people of this state his interest in the premises used for the purpose aforesaid, and in the damages arising as above mentioned." In the case of the presentation of any such claim, ample provision was made for its adjustment and for the payment of the same out of the state treasury.

This act was in force when the Southern railroad was located across the lands now owned by the relator, and continued in force until the 20th of April, 1839, when an act with the same title was passed and approved, and the former act was repealed. (Laws of 1839, p. 190.) By section twenty-four of the latter act, provision is made for the appointment of commissioners to appraise damages on the lines of the several works of internal improvements, and whose duty it was, at the request of the commissioners of internal improvement, or claimants of damages on any part of the public works which might be ordered to be prepared, for letting to contract or theretofore let, to proceed to examine the lands, buildings or materials wanted or taken by the state, etc., and to determine the amount due to such claimant, and certify the same, etc. Provision is also made by this section for the payment of such damages when ascertained and certified in the manner therein provided.

On the 25th of March, 1840, the legislature passed "an act for the regulation of internal improvements," by which a new system for carrying on and conducting the railroads of the state was adopted, and provision was made for annual appointment of three appraisers of damages, whose duty it was, among other things, to assess the value of any land or other property required, or which might theretofore have been taken by the state, for the construction, use or maintenance of any public work, etc. Laws of 1840, 97, § 16. This act also made provision for paying the damages assessed in pursuance thereof. It differs in some respects in regard to the appraisal of damages from the former statutes upon that subject. The appraisers were required to proceed to examine and assess damages at the request of the board of commissioners, or any acting commissioner, and were not authorized to do so upon the request of the claimant. It also contains a proviso which seems to import that the land or other property appraised was not to be entered upon and used until the amount awarded by the appraisers should have been tendered. See § 16, Laws of 1840, 97, 98. This clause, however, had relation to lands and property to be taken pursuant to that act, and not to such as had already been condemned, and was then used and occupied by the state under previous statutes. In other words, it did not divest the state of any right already acquired to lands or other property for the purpose of public works.

By an amendment of the last mentioned act, approved February 17th, 1841 (Laws of 1842, 123), the board of internal improvement was authorized and required, upon the application of any claimant, to examine, adjust and settle, all legal and equitable claims legitimately preferred against the state, arising from or connected with the several works of internal improvement.

The next act having any bearing upon the rights of the parties in this case was that of March 8, 1843, entitled, "an act for the final adjustment of all unsettled claims for damages growing out of the internal improvements of this state." Laws 1843, 153.

This act required the board of state auditors, within sixty days after its passage, to cause public notice to be given by newspaper publication, for not less than eight successive weeks, to all persons claiming damages of the state on account of or in any way arising from the construction of works of internal improvement prior to the first day of April, 1842, to appear before said board and prosecute their several claims to final determination and adjustment; and it provided that every claimant for such damages, who should not so appear before the first day of October then next, and prosecute his claim, should ever thereafter be barred from any recovery thereon. The board was duly empowered to examine and adjust all claims presented, and provision was made for the payment of all damages awarded by...