Port Huron & S.W. Ry. Co. v. Voorheis

• Decision Date: 06 June 1883
• Citation: 50 Mich. 506,15 N.W. 882
• Parties: PORT HURON & S.W. RY. CO. v. VOORHEIS.
• Court: Michigan Supreme Court

15 N.W. 882

50 Mich. 506

PORT HURON & S.W. RY. CO. v. VOORHEIS.

Supreme Court of Michigan

June 6, 1883

A party owning contiguous lots of land claimed by him as his homestead, is not limited in damages for the condemnation of one lot by a railroad company for right of way and depot grounds to the value of the one lot so taken, but is entitled also to such other actual damage to his homestead as he sustained by reason of the taking, and necessarily arising from the use to be made of the parcel taken.

In proceedings to condemn land for right of way of a railroad, a very large discretion is allowed to the commissioners or officers in receiving or rejecting testimony, and on an appeal the award will not be disturbed on account of their rulings, unless it is fairly evident, in view of all the facts and circumstances, that the ruling was not only inaccurate, but was a cause of substantial injustice to the appellant in the result.

The amount of compensation or damages awarded by the commissioners in such a proceeding is final and conclusive provided they have not misconceived the law, and have fully considered all the essential elements of damage presented to them by the petition and the testimony.

Appeal from probate court of St. Clair.

O'Brien J. Atkinson, for petitioner.

Frank Whipple, for respondent and appellant.

SHERWOOD, J.

The record in this case brings before us for review proceedings in probate court on the part of the Port Huron & Southwestern Railway Company, to condemn certain lands of the respondent George P. Voorheis, and in which Henry Marx held a mortgage in trust, lying in the city of Port Huron, for right of way and depot grounds, under the general railroad law of the state. The respondent, Voorheis, appeals.

The respondent's damages and compensation were found and assessed by commissioners, and all irregularities if any, in the proceedings up to and including the appointment of commissioners, are waived by the express stipulation of the parties, so that only the proceedings by the commissioners in making their assessment and award, and the action of the probate court in confirming the same, are now open for our consideration. The record in the case is full, and contains all the proceedings had and evidence taken, and from which it appears that the respondent owned and occupied lots 4, 5, 6 and 13, 14 and 15, in block 2 of the commissioners' plat of that portion of the estate of Simon Petit in section 16 in the city of Port Huron, and had his residence thereon. On the east and north sides of lots 13, 14, and 15, there are alleys platted, but the record does not show they have been accepted by the city. The lots all lie contiguous to each other, and were intended by respondent for his homestead. The house is situated on lots 4 and 5, and barn on 14. The land sought to be condemned is a strip 40 feet wide extending across the north side of lot 15, and next south of the alley. To obtain the land desired, before filing the petition, the company had offered or tendered the sum of $300, which was refused.

The petition, in describing the land sought to be taken, and for which it seeks an appraisement of compensation or damages, only refers to lot 15, and the theory of petitioner's counsel was, as we get it from this record, that the compensation or damages to be awarded should be confined to the value of the land taken from, and injury to that lot. The respondent, Voorheis, in showing cause against the prayer of the petition, filed an answer, in which he denied the necessity for taking his property, and among other things stated that the right of way sought to be taken constituted a part of his homestead, which consisted of the six lots mentioned in the petition, for the purposes there stated, would deprive him of the use of the alley on the north side of his property, and that the running of cars on the proposed right of way, in so near proximity to his buildings, would cause great, permanent, and continually increasing injury and damage to the entire homestead; that the injury to the entire homestead is not less than $1,000, and that his interest in the alley is worth an equal amount.

The respondent claims that while the value of the land proposed to be taken is no more than the $300 tendered, he is not limited in damages to that lot, but the land taken being a part of his homestead, and used and occupied by him as such, he was entitled not only to compensation for the land taken, but also for such other actual damages to his homestead as he sustained by reason of the taking, and necessarily arising from the use to be made of the parcel taken.

We think the proper construction of our statute supports the respondent's view upon this point, and that he is entitled to compensation for the injury, if any, to the remainder of the homestead. Howell, Comp. p. 848, � 21; Wilmes v. Minneapolis & N.W. Ry. Co. 13 N.W. 39; Scott v. St. Paul & C. Ry.

Co. 21 Minn. 322; Winona & St. P.R. Co. v. Denman, 10 Minn. 267, (Gil. 208;) Greve v. First Div. St. P. & P.R. Co. 25 Minn. 66; Sheldon v. Minneapolis & St. L. Ry. Co. 13 N.W. 134; Sherwood v. St. Paul & C.R. Co. 21 Minn. 122.

The commissioners were the judges of the law as well as the facts in this case. Toledo, Ann Arbor & G.T. Ry. Co. v Dunlap, 47 Mich. 456; [S.C. 11 N.W. 271.] Several witnesses were examined on both sides, and the commissioners viewed the premises, accompanied by the...