Pere Marquette R. Co. v. U.S. Gypsum Co.

• Decision Date: 29 September 1908
• Parties: PERE MARQUETTE R. CO. v. UNITED STATES GYPSUM CO. et al.
• Court: Michigan Supreme Court

154 Mich. 290

117 N.W. 733

PERE MARQUETTE R. CO.

v.UNITED STATES GYPSUM CO. et al.

Supreme Court of Michigan.

Sept. 29, 1908.

Certiorari to Probate Court, Kent County; Harry D. Jewell, Judge.

Condemnation proceedings by the Pere Marquette Railroad Company against the United States Gypsum Company and others. Decision was adverse to the railroad company, and it brings certiorari. Affirmed.

After the decision of the case of United States Gypsum Company v. Circuit Judge, 150 Mich. 668, 114 N. W. 666, and by special permission of the court granted in that decision, the case is now before us by writ of certiorari from the probate court. The petitioner filed its petition in the probate court for the condemnation of a right of way across the lands of the defendant gypsum company to land owned by William F. Dummer. Dummer and his wife were made parties because Mr. Dummer claimed ownership of a right of way over the proposed line. The petition is correct in form, and contains the following allegations: ‘That the property so particularly described in this petition is required for the purpose of constructing, operating, or repairing your petitioner's said railroad or its appurtenances, viz.: For the purpose of building, maintaining, and operating a spur track from your petitioner's main line to develop business along your petitioner's line of road. That the taking of the lands and property above particularly described is necessary for the public use.’ The Federal Trust & Savings Bank and the German Savings Bank are made parties as mortgagees of the defendants' road and property. Dummer and his wife filed their consent to the proposed condemnation. The right of way sought to be condemned is entirely on the land of the gypsum company. The petitioner proposes to take a strip 50 feet wide across its land, containing valuable deposits. The gypsum company and the mortgagees answered, denying the jurisdiction of the court, and that the land was required for a public use or by public necessity.

In U. S. Gypsum Co. v. Circuit Judge, supra, will be found a quotation from the answer, the finding of the probate judge, and the decree dismissing the petition. Upon the hearing preliminary inquiry was had upon the question of the jurisdiction, and the authority of the court to condemn the lands and proofs were taken thereon. Petitioner introduced the record of a resolution from the board of directors of the petitioner, in which ‘it was resolved that it is expedient and necessary for the development of the business along the line of the Pere Marquette Railroad Company that a spur track be constructed along such route as shall be selected by the chief engineer from the main line near Grandville to the plaster mills near the northwest corner of section 20, of town 6 north, of range 12 west.’ Petitioner's counsel then called Mr. Keeney, one of the attorneys for the respondent, to the stand to prove negotiations for the purchase of the right of way. A letter was produced, written by the attorney for the petitioner, directed to Messrs. Butterfield & Keeney, attorneys for the gypsum company, offering $400 per acre for a right of way 50 feet wide across the land, containing the statement that it would not permit the United States Gypsum Company to remove the rock along the right of way, unless it could be done without injury to the railroad track. and a letter on the part of the gypsum company declining to accept the offer. On cross-examination Mr. Keeney testified that he had a conversation with the attorney representing the railroad company in regard to this right of way, in which Mr. Keeney informed said attorney that he did not think Mr. Dummer had any intention of good faith to operate his mills, and that the attorney for the petitioner replied that he did not believe Mr. Dummer did intend to run his mills, ‘at least so that they could get enough business out of it to warrant their putting in a side track, and for that reason they had been unwilling to do it, and he did not think that there was any probability that they would enter into any enterprise of that kind.’ A few weeks after this conversation the same attorney informed Mr. Keeney that circumstances had changed, and that an agreement had been made between Mr. Dummer and the Pere Marquette, under which Mr. Dummer was to pay all the expenses of putting in a side track and the condemnation proceedings, and that the railroad company was to institute the same. Thereupon followed the letters above referred to. Upon this showing the petitioner rested its case.

The respondents then introduced the agreement which had been made between Mr. Dummer and the railroad company, the material parts of which are as follows:

‘Agreement made this 23d day of September, A. D. 1905, between the Pere Marquette Railroad Company, a corporation, as party of the first part, hereinafter called the ‘Pere Marquette,’ and William F. Dummer, of Lake Geneva, Wisconsin, as party of the second part; whereas, the party of the second part is the owner of land containing deposits of gypsum and a mill for converting such deposits into plaster or stucco, situated near the village of Grandville, which mill formerly had but is now without railroad facilities. To Pere Marquette is the owner of a railroad passing through Grandville, and the party of the second part desires to obtain railroad facilities for his said property: Now, therefore, in consideration of the premises and of the mutual promises herein contained, and other valuable considerations, it is hereby agreed as follows:

‘(1) The Pere Marquette agrees to have instituted by an attorney acceptable to the party of the second part proceedings for the condemnation of a right of way across sections 17 and 18 substantially as shown on the annexed blueprint, such right of way not to exceed a strip of land 50 feet wide, being 25 feet on each side of the center line of such right of way, and both branches thereof where the track divides near said mill, and to prosecute said proceedings diligently, with a view of obtaining the said right of way at the earliest practicable date. No more land shall be condemned for such right of way than is reasonably necessary for the purposes of this agreement.

‘(2) The party of the second part agrees to pay all the costs, charges, and expenses attending the commencement and prosecution of said proceedings, except for the services of the salaried officers and employés of the Pere Marquette who may be engaged in connection with said proceedings, who shall render all necessary assistance in connection with a local attorney who shall be employed, such local attorney to be paid by the party of the second part, and also to pay the amounts awarded as damages and compensation to the owners of said right of way, together with all costs awarded in the same connection, such award and costs to be paid within the time allowed by the statute. The party of the second part shall have the right to appeal in the name of the Pere Marquette from such award, the expenses of such appeal to be paid by said party of the second part. The party of the second part further agrees to pay to the Pere Marquette in advance of the construction of said tracks, the sum of five thousand fifty-nine dollars and sixty-six cents, being the estimated total cost of the material and labor to be furnished for said track by the Pere Marquette, and the Pere Marquette agrees to refund in cash to the party of the second part, upon the completion of such track, any part of the said sums not actually expended in the construction of such track, and to refund the balance of said sum to the second party at the rate of three dollars per car on each car load of freight shipped in or out over said track via the lines of the Pere Marquette or as routed by it over other lines. Settlements to be made quarterly on the last day of March, June, September, and December of each year, and the payment of such refunds shall cease when the total of such refunds shall equal the net amount advanced by the second party to the Pere Marquette for the cost of material and labor furnished by the Pere Marquette in the construction of such track. In case such condemnation proceedings shall fail and such track shall not be constructed, the Pere Marquette shall refund in cash to the second party the whole amount so advanced, less the amount of the actual expenses incurred by the Pere Marquette prior to the failure of such condemnation proceedings. It is expressly understood that the refunds above provided for shall not apply to or be allowed upon any amounts paid by the second party on account of damages, compensation, costs, charges, and expenses in connection with the condemnation proceedings herein provided for.

‘(3) The Pere Marquette agrees that as soon as it is authorized to enter upon the said right of way, either by the consent of the owners thereof or by the proceedings aforesaid, it will do the necessary grading and furnish the necessary rails and material, and construct with all reasonable diligence, at its own expense, a track over such right of way to the property of the second pa...