Slum Clearance, in City of Detroit, In re

• Decision Date: 06 March 1952
• Docket Number: No. 13,13
• Citation: 52 N.W.2d 195,332 Mich. 485
• Parties: In re SLUM CLEARANCE, CITY OF DETROIT. Appeal of UNITED PLATERS, Inc.
• Court: Michigan Supreme Court

Page 195

52 N.W.2d 195

332 Mich. 485

In re SLUM CLEARANCE, CITY OF DETROIT Appeal of UNITED PLATERS, Inc.

No. 13.

Supreme Court of Michigan.

March 6, 1952.

Fischer, Brown, Sprague, Franklin & Ford, Detroit, for appellant.

Paul T. Dwyer, Acting Corp. Counsel, Vance G. Ingalls, Asst. Corp. Counsel, Detroit, for petitioner and appellee.

Before the Entire Bench.

BOYLES, Justice.

United Platers, Inc., appeals from an order confirming a verdict by jury condemning certain land and buildings in Detroit for slum clearance, and particularly from the court's refusal to allow appellant to show its loss in connection with its plating solutions and molten metals, and to show business loss. Other questions, raised by other appellants in the same condemnation proceeding, were recently considered by us in Re Slum Clearance in City of Detroit, 331 Mich. 714, 50 N.W.2d 340.

By stipulation, it was agreed in the trial court that the jury might make one award to appellant corporation jointly with certain other individuals who owned separate parcels of the same land and buildings condemned, hence United Platers, Inc., will be considered as the respondent here, it being the only appellant in the present case.

Appellant employs approximately 150 persons in conducting its business of electrolytic plating of tin and some half-dozen other metals located in the buildings condemned. More than 100 tons of material are turned out and more than a million screws are plated by it every day. The essential operation in the business is the immersing of the material to be plated in tanks of various chemical solutions, and there subjecting it to electrolytic action. The fixtures in the buildings include plating tanks of various constructions and materials, pumps, agitators, electric motors, melting pots, et cetera. Many of the tanks are too large to be moved, some will have to be taken apart, while others can be moved if empty.

Also in the plant, in the tanks and other containers and being used in the various plating processes, are approximately 40,000 gallons of different chemical solutions, the use of which requires scientific precision and strict chemical control. The ingredients are expensive, and the solutions must be carefully compounded. Many of these solutions last indefinitely, though additions are made to them from time to time. Some of the cleaning and pickling solutions are occasionally discarded and replaced. If the solutions are to be moved, ordinary containers cannot be used and ones chemically pure must be found--a slight impurity makes the chemical unfit for use. Some of the solutions can only be moved in glasslined or rubber-lined containers and some cannot be moved at all. Also, in the furnaces and melting pots are about 50,000 pounds of molten tin and molten lead.

In the course of the condemnation hearing, appellant offered to prove that its 39,640 gallons of plating solutions are of 2 sorts--21,406 gallons which cannot be moved at all, or which cannot be moved except at expense greater than their value, and 18,234 gallons whose value justifies or whose nature permits moving. The trial court refused to allow this evidence to be presented to the jury. Appellant also offered to show that it could not move the molten metal from the premises unless it solidified and cooled it by casting it into pigs. Appellant sought to show that its total loss and expense of removal would amount to about $28,000. The trial court also excluded this evidence. Appellant claims that the court erred in said rulings.

Appellant also claimed the right to prove the amount of its business loss from the 'interruption' of its business as a result of the taking. The offer of this proof was also rejected by the court and appellant claims this was error.

The trial resulted in an award of $140,000 for the land and buildings. Appellant concedes that this was within the range of the testimony and has not appealed from such award. The testimony as to the cost of moving appellant's machinery and fixtures ranged from $60,577.85 (the total given by the city witnesses) to $212,176.11 (the total given by appellant's witnesses, not counting the proofs offered but rejected). The jury awarded $85,000 for fixture removal. United Platers, Inc., as the owner of the fixtures and operator of the business, has appealed from that award. It claims error in the exclusion of its offered proofs as to the solutions and melted metal, and as to 'business interruption.'

1. When a condemnation jury is to reflect in its award the cost of the removal of trade fixtures, should the jury consider the cost of removing the chemical solutions in the tanks of a plating company, and the cost of removing the molten metal in its furnaces?

The trial judge agreed that appellant's tanks, pipes and other machinery were trade fixtures and permitted the jury to hear evidence as to the cost of disassembling and reinstalling the movable equipment, and as to the value of equipment which could not be moved without destruction or at cost exceeding value. After refusing to allow appellant to show the removal expense for the chemical solutions and molten metal, the court instructed the jury: 'As to those fixtures which the owner elects to take, the owner is entitled to just compensation * * * Therefore, in considering the damages to be awarded for fixtures, as I have defined them, you may consider the value of the fixtures to have been decreased to the extent of the cost of detaching them and reattaching them elsewhere, and you should make an allowance in your award by such an amount as representing the damage to such respondents claiming compensation for the diminished value of their fixtures. You are not, however, to add the costs of transporting severed trade fixtures to a new location, as such costs are considered too speculative.'

Appellant claims that because of the nature of this particular business, there is great expense connected with the moving of the chemical solutions and the whitehot molten metal, and that this is part of the expense of moving its trade fixtures. The trial judge held against this contention, saying: 'The cases are anything but clear in my humble opinion, but I have found no case that has gone so far as condemnation which are not attached to the tralty itself and therefore I am going to rule that the jury will not be permitted to give a verdict as far as on behalf of the United Platers, Inc., as far as the liquids are concerned or the lead either as to damage, the cost of removal.'

Thereupon the court charged the jury that: 'Fixtures, in this case, mean such articles of personal property which are attached in some manner or means to the land or building, and can be removed without seriously damaging the premises, and includes machinery and equipment. It does not include unattached personal property or stocks of merchandise.'

The question here for decision is whether the chemical solutions and molten metal are to be considered in a condemnation proceeding as trade fixtures, under the circumstances of this case. If so considered, appellant is entitled to have the loss and removal expense considered as a part of its damages for the taking. On the other hand, if, under these circumstances, the solutions and molten metal are merely personal property, not trade fixtures, the trial court was not in error in excluding the proffered testimony. Counsel for the city claims that: 'The solutions and molten metal are not fixtures, either actually or constructively, for the reason that they cannot 'be properly considered as part of the realty' as above defined. * * * they are personal property for the removal of which, in condemnation proceedings, no damages are allowable.'

Counsel for both parties rely on In re Widening of Gratiot Avenue, 294 Mich. 569, 293 N.W. 755. In that case, 294 Mich. at page 573, 293 N.W. at page 757, the Court said:

'The sole question on this appeal is whether it was proper for the jury to award damages for removal costs of trade fixtures.

'Art. XIII, Sec. 1, of the Constitution of Michigan (1908), provides: 'Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.'

'This provision has been given a liberal interpretation in this state. 'Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred.' In re Widening of Bagley Avenue, 248 Mich. 1, 226 N.W. 688.'

The court then concluded (syllabus): 'Trade fixtures used in conduct of drug store, jewelry store, and gear manufacturing business were not stocks of goods nor, usually considered, purely personal property, and while considered personal property as between landlord and tenant, in condemnation proceedings they were properly considered as realty and damages were allowable for removal costs (Const. 1908, art. 13, § 1).'

Thus we have in this State a constitutional guarantee that private property will not be taken for public use without just compensation. In 1886 this court upheld what might be considered as consequential damages in a condemnation case in which a highway commissioner pursued condemnation proceedings to lay out a highway across the plaintiff's railroad. The court allowed damages to the railroad company for the expense of 'fencing, cattleguards, and other outlays to complete the approaches, besides the cost of maintaining them.' In so holding, the court said: 'The damage to a railroad company by running a highway across it does not spring, to any considerable extent, from the mere fact of crossing, but from the additional outlay required in avoiding the perils of a crossing. * * * The constitution expressly forbids any appropriation of private property without 'just compensation.' There is no...