Todd v. Rogers, 115

• Citation: 198 N.W. 945,227 Mich. 208
• Decision Date: 02 June 1924
• Docket Number: No. 115,Jan. Term.,115
• Parties: TODD et al. v. ROGERS, State Highway Com'r, et al.
• Court: Michigan Supreme Court

227 Mich. 208

198 N.W. 945

TODD et al.

v.ROGERS, State Highway Com'r, et al.

No. 115, Jan. Term.

Supreme Court of Michigan.

June 2, 1924.

Appeal from Circuit Court, Charlevoix County, in Chancery; Frederick W. Mayne, Judge.

Bill by Charles Todd and others against Frank F. Rogers, State Highway Commissioner, and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Mesick & Miller, of Petoskey, for appellants.

E. A. Ruegsegger and J. M. Harris, both of Boyne City, for appellees.

McDONALD, J.

The purpose of this bill is to enjoin the construction of a highway over the plaintiffs' land in Charlevoix county. The plaintiffs claim title to the land as heirs of Charles Todd, who died intestate about 30 years ago. No administration of his estate was had. His widow, Barbara Todd, and the children, have since occupied the premises as a homestead. They were all of age when these proceedings were begun. Desiring to secure a right of way across this land for the construction of a branch trunk line highway of the Mackinaw trail, the defendants negotiated with Barbara Todd as owner. Unable to acquire the land by purchase, they began condemnation proceedings. The necessary petition was filed, in which Barbara Todd was described as the owner. Commissioners were appointed. An order for hearing was made, noticed, and published as required by the statute. The commissioners reported the necessity for the taking the land for public use and appraised the damages. The report was confirmed and a certificate of title issued and recorded. The defendants then went upon the right of way and began the work of constructing the road.

The plaintiffs filed this bill for an injunction and for the recovery of damages on account of the alleged unlawful entry on their premises. The injunction was subsequently dissolved by order of the court, on condition that the defendants begin and prosecute to effect other proceedings to acquire the title of the present plaintiffs, and give a bond in the sum of $2,000 to pay all damages in the event that it be determined that the proposed highway is not a public necessity. The work then proceeded, and the road is now fully constructed. In the second condemnation proceedings a report of necessity and appraisal of damages was made and confirmed, and a certificate of title issued and recorded. Before these proceedings were concluded this suit came on for hearing. A decree was entered dismissing the plaintiffs' bill. They have appealed.

In our consideration of the questions here presented, we are concerned only with the first condemnation proceedings. The plaintiffs claim that these proceedings were void, and gave the defendants no right of entry upon the land, because the plaintiffs, who were owners of the fee, were not made parties of record, thought they all resided in Charlevoix county.

[1] It is the defendants' contention that, by holding out to the public that their mother, Barbara Todd, was the owner of the land in question, and by failing to assert their interest during the hearing, of which they had notice, the plaintiffs are now estopped from claiming that the proceedings were void. Is it necessary to the validity of the proceedings that all parties having an interest in the land should be made parties of record? In considering this question it is helpful to have in mind the nature of the proceeding:

‘It is a proceeding in rem, and binds all persons interested in the rem, although not technically parties to the proceeding.’ 12 C. J. p. 398.

‘As proceedings to appropriate land are against the property itself and not against the person, it is competent for the Legislature to provide for constructive instead of personal notice.’ Elliott, Roads and Streets, § 223.

[2] It is not a civil action, in which the landowner is brought in as a party, but a special statutory proceeding, in which the property may be taken, though all parties in interest may not be known. From this it would seem to be reasonably inferable that, unless the statute regulating the proceedings requires it, it is not absolutely essential to a valid condemnation that all of the parties in interest should be named in the petition. Our statute (section 4358, C. L. 1915) provides that the petition shall give the name of each person interested in the land ‘so far as known.’ It also provides for personal service of a notice of the hearing on each person in interest named in the petition, and for the publication of the order of hearing for three successive weeks in some newspaper published and circulated in the county near to the land in question. There could be no purpose in requiring publication in addition to the personal service on those named in the petition, were it not that those residing in the county, who may have an interest not known to the petitioners, shall be thus notified of the proceedings and shall have an opportunity to be heard.

At the time of the filing of this petition the interests of the children of Barbara Todd were not known. They had no title of record. For years they had been holding out to the public that the land in question belonged to their mother. It was assessed for taxes in her name, and for many years, in order to secure exemption from taxation as a soldier's widow, she had yearly filed an affidavit with the assessing officers stating that she owned the property and occupied it as a homestead. If the children had any interest, they kept quiet about it. One of them testified: ‘We children always treated the farm as being mother's.’ They should not now complain that in beginning these proceedings the petitioners also treated the farm ‘as being mother's.’ The petitioners acted in good faith, gave the names of all parties known to have an interest, and filed a petition that sufficiently complies with the statute. They also gave the necessary notice of hearing by personal service on Barbara Todd, and by publication, and filed proof thereof with the court. Moreover, the children had actual personal knowledge of the proceedings. They were all of age. Some of them were present at the hearing; others remained away, because advised to do so. The mother was represented by counsel, who contested the proceedings. She filed and answer, in which she admitted ownership. None of the children made it known to the court or to the commissioners that they claimed any interest. The whole...