Petition of Charter Tp. of Delta for Condemnation of Private Property

Decision Date18 June 1973
Docket NumberNo. 1,1
Citation208 N.W.2d 168,389 Mich. 549
PartiesPetition of the CHARTER TOWNSHIP OF DELTA FOR CONDEMNATION OF PRIVATE PROPERTY. CHARTER TOWNSHIP OF DELTA, Plaintiff-Appellee, v. Patrick EYDE et al., Defendants-Appellants, People of the State of Michigan, Intervenors.
CourtMichigan Supreme Court

Lester N. Turner, of Sinas, Dramis, Brake & Turner, P.C., Lansing, for defendants-appellants.

Harold W. Glassen, Glassen, Parr, Rhead & McLean, Lansing, for plaintiff-appellee.

Before the Entire Bench, except LEVIN, J.

BRENNAN, Justice.

This is an action under M.C.L.A. § 213.21 et. seq.; M.S.A. § 8.11 et. seq., for the condemnation of private property for public use. The public improvement proposed here is the construction of the so-called Carrier Creek Interceptor Extension in Delta Township, Eaton County. A resolution declaring the necessity for taking an easement across the land of the defendants was adopted by the trustees of the plaintiff on February 2, 1970. Pursuant to this resolution, an action was commenced in the Circuit Court for Eaton County on the 11th of February, 1970. The resolution described the property to be taken in the following words:

'A 50 ft. wide easement, and sufficient area for construction, whose centerline is located approximately as follows:

'Beginning on the N--S quarter line approximately 407 feet South of the center of Section 22; thence S 63 --07 --06 E 423 feet; thence S 19 --45 --36' E 170 feet; thence S 22 --28 --45 W, 584 feet, thence S 31 --46 --36 E approximately 330 feet to a point located 375 feet East of the N--S quarter line; thence South on a line 375 feet East of and parallel to the N--S quarter line an approximate distance of 1053 feet to the South line of Section 22 (Centerline of Mt. Hope Highway) together with manholes and appurtenances.

'This easement is part of the Carrier Creek Interceptor Extension and is in property described as:

'The W 1/2 of the SE 1/4, except the W 300 feet of the South 900 feet and except the East 142 feet of the S 244 feet and except the South 700 feet of the West 300 feet of the East 2066.7 feet, Section 22, and except a highway right of way on the NE corner of Section 22, T4N., R3W., Delta Twp., Eaton County, Michigan.

'Title to the above described property rests in fee in Pearl M. Myers Horst of 4440 North St., Holt, Michigan, survivor of Clarence E. Myers and Pearl M. Myers, husband and Patrick R. Eyde, a married man, whose wife's name is Mary Ann Eyde, and Michael G. Eyde, a single man, have a land contract vendees interest in the above described property.'

The petition said substantially the same thing.

The plaintiff proposes to construct a 30 inch pipe sewer through the described easement to provide sewer disposal facilities for the State of Michigan Secondary Office Complex located in Windsor Township of Eaton County, and it proposes further to use the Carrier Creek interceptor as a principal sewage disposal system for future development of Delta Township.

Pursuant to the petition of the plaintiff, and in obedience to the statute, a condemnation jury was empaneled and the matter was tried to the jury, which returned a verdict, awarding compensation to the defendants in the sum of $6,000.00, after agreeing upon the necessity to take the proposed route for the sewer.

On January 28, 1971, the circuit court entered a judgment confirming the verdict of the jury and granting the easement as prayed for.

On appeal to the Court of Appeals, the judgment of the circuit court was affirmed by a divided panel of that court, 40 Mich.App. 485, 198 N.W.2d 918, and we granted leave to appeal to review the issue addressed by the dissenting member of that panel.

The factual frame of reference for that issue is as follows: the resolution of the plaintiff and the petition both state that the property to be taken consists of a 50 foot easement along a designated centerline 'and sufficient area for construction.'

Prior to the submission of the cause to the jury, counsel met with the trial judge in his chambers and discussed the proposed instructions to the jury. A stenographic record of that conversation was kept and the pertinent portion thereof was as follows:

'Mr. Turner: And I think as far as where it says, 'There follows an easement as described in the petition . . .' I think that should say, '. . . a fifty foot easement, as described in the petition.'--A fifty foot easement following the route described in the petition.

'The Court: Is this talking about the verdict?

'Mr. Turner: Down here, your Honor. Fifty foot easement as described in the petition. I think what it should say is, the fifty feet easement following the route described in the petition.

'The Court: Well, I think it says the same thing, doesn't it?

'Mr. Glassen: That's what the petition calls for.

'Mr. Turner: No it doesn't, your Honor.

'The Court: Well, I'm not going to let the Jury dictate the route.

'Mr. Turner: No. I say, a fifty feet easement following the route described in the petition.

'The Court: Well that says the same thing, the easement as described in the petition.

'Mr. Turner: It doesn't, because in their petition--I don't have it in front of me, now.--I can go get it.--They, in their petition, they say, fifty feet easement and whatever land might be needed for construction.

'The Court: In their opening statement they didn't say they needed any more than fifty feet easement. Their proofs didn't say anything about more than fifty feet.

'Mr. Glassen: The petition is in here. That's the wording of the Statute where I took it out of. That's why it's in there.

'The Court: Is this a Statutory verdict?

'Mr. Glassen: Yes.

'Mr. Turner: It has to conform to the proofs. You can't plead a hundred foot easement and then offer proofs on a fifty foot easement and then have the verdict something else.

'You filed the petition. And in your opening statement you said fifty feet and your expert said fifty feet. You put in your proofs and I assumed that's what you wanted. And that's what I told my expert to come up with.

'The Court: All right,--Following the route as described in the petition.

'Mr. Turner: Are you sticking in, fifty feet?

'The Court: No. Just, '. . . route as described in the petition . . .'

'Mr. Turner: Your Honor, does that give them more than fifty feet or not?

'The Court: I guess that's something I'll have to cross when I...

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3 cases
  • Master Craft Engineering, Inc. v. Department of Treasury
    • United States
    • Court of Appeal of Michigan (US)
    • April 24, 1985
    ...due process, its arguments lack merit. See Delta Twp. v. Eyde, 40 Mich.App. 485, 490, 198 N.W.2d 918 (1972), affirmed in part 389 Mich. 549, 208 N.W.2d 168 (1973). Master Craft had every opportunity to present a complete defense. Its president testified regarding the "second audit" but this......
  • Eyde v. State
    • United States
    • Court of Appeal of Michigan (US)
    • April 17, 1978
    ...dissenting view that the easement was limited to 50 feet, not 50 feet "and sufficient area for construction". Delta Township v. Eyde, 389 Mich. 549, 555-556, 208 N.W.2d 168 (1973). However, being persuaded that the $6,000 was intended to compensate for only the 50-foot easement, the Court f......
  • Eyde v. State, 56188
    • United States
    • Supreme Court of Michigan
    • January 21, 1975
    ......and as taxpayers of Delta Township in the State of. Michigan, pellants,. v. STATE of Michigan and the Charter Township of Delta,. Defendants-Appellees. No. ... resources' not only upon the plaintiffs' property but would cause 'additional damage down stream in ... presented in the [393 MICH 454] condemnation action . . .' (Delta Twp. v. Eyde, 389 Mich. ... significant legislation which gives the private citizen a sizable share of the initiative for ......

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