Toledo, A.A. & G.T. Ry. Co. v. Dunlap

• Decision Date: 18 January 1882
• Parties: TOLEDO, ANN ARBOR & GRAND TRUNK R. CO. v. DUNLAP and others.
• Court: Michigan Supreme Court

11 N.W. 271

47 Mich. 456

TOLEDO, ANN ARBOR & GRAND TRUNK R. CO. v. DUNLAP and others.

Supreme Court of Michigan

January 18, 1882

If, in condemnation proceedings, a jury has been summoned under proper circumstances, has conducted its inquiries legally and with due regard to private rights, and reached a legitimate conclusion as to the necessity of the condemnation and the compensation, the appropriation of the land, upon payment of the compensation, will be lawful, and will not be affected by collateral actions of court or judge that may be unlawful.

A court cannot interfere with legal proceedings upon an ex parte application in proceedings for condemnation.

Owner of land held not affected by the deposit and withdrawal, by the company, of certain money.

Corporation in this case held a Michigan corporation.

The act entitled "An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management, and to fix the duties and liabilities, of all railroads and other corporations owning or operating any railroad in this state," is not invalid, and under it a corporation may be created, composed in part, of a foreign corporation.

Where a company was in possession trying to obtain the right to lands by condemnation, held, that the owner was not entitled to receive, as part of the compensation for such lands, the value of the track laid by the company thereon. The attendance of a judge at a hearing before a jury, in proceedings to condemn lands, and his rulings and charge at such attendance, are advisory only. The jury are the judges of the law and facts, and in matters of opinion are expected to use their own judgment and experience quite as much as the testimony of witnesses.

Decision of the jury in this case held not incorrect.

Appeal from Oakland.

E.J. Bissell, F.A. Baker, and E.H. Sellers, for respondents and appellants.

CAMPBELL, J.

This is an appeal from proceedings to condemn lands. The property involved is the same included in the proceedings set aside at the June term, 1881, in the case of Dunlap v. Toledo, Ann Arbor & Northwestern Ry. Co; [S.C. 9 N.W. 249.] The present company purports to be a consolidation of the last-named company with the Toledo & Ann Arbor Railroad Company. It appears that immediately after the confirmation of the proceedings which were afterwards set aside by this court the company took possession of Dunlap's land and built its road across the part sought to be condemned. This was done in December, 1880, and led to a series of legal controversies not yet determined. The present proceedings were begun on the eighteenth day of June, 1881, by the presentation of a petition to the circuit court for the county of Oakland, where a jury was drawn and subsequently rendered the verdict complained of. During the pendency of the proceedings and subsequently certain orders were made by the circuit court, to which reference will be made hereafter.

Some important questions arose which require a brief preliminary reference to the nature of these proceedings. The statute is evidently framed in accordance with the laws of some other states where the judicial power is not parcelled out as it is here; and some complications have been caused by this practice which introduce difficulties. We had occasion in the case of Michigan Air-line Railway v. Barnes, 44 Mich. 222, [S.C. 6 N.W. 651,] to point out some of these difficulties. It is greatly to be regretted that this species of legislation has been so very carelessly framed. In the present case some steps appear which could only have been taken by a court in the regular exercise of judicial power, while others belong to a different class of functions entirely, and are governed by different considerations. Under our constitution such powers as are strictly judicial in their character can only be vested in certain courts which are named in the constitution itself. The circuit courts--as courts--have such powers. The judges as judges, out of court, do not possess them, and cannot be vested with them.

The proceedings to condemn lands although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves and never have been regarded as judicial proceedings. Our constitution allows them to be conducted by highway commissioners in some cases, and by specially-appointed commissioners or juries of freeholders. The inquiry in this state, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by courts but always heretofore by the legislature or some unjudicial body of its creation. Had it not been for the specific provisions in our constitution the state could have provided for these inquiries to be made by any medium it might select. People v. Mich. South. R. Co. 3 Mich. 496. Our present system is better calculated than the old one, if fairly applied, to secure the rights of land-owners. But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense. As provided for under the railroad laws, there are certain proceedings in court to select a jury, and subsequent proceedings to determine whether the action of the jury should be sustained. Beyond this the courts have no part in the matter, and with the exception of some special matters to be referred to hereafter, no difficulties should have arisen to confound these functions. But it is manifest they have been counfounded to some extent here, and the question may arise how far such confusion may have caused mischief which we can redress.

It may be said in brief that if a jury has been summoned under proper circumstances, has conducted its inquiries legally, and with due regard to private rights, and has reached a legitimate conclusion as to the necessity of the condemnation, and the compensation, the appropriation of the land, upon payment of that compensation, will be lawful and will not be affected by collateral action by the judge or court, which may be unlawful. This distinction between the different tribunals is essential. The objections taken may be divided into two classes--the one relating to the sufficiency of the condemnation, and the second to the action of the court or judge independent of the inquest. Reference will first be made to the latter. These are--First, action taken by the circuit court to restrain legal proceedings; second, action concerning certain moneys; and, third, action requiring the land-owner to pay costs. On the twenty-fifth of July, 1881, the circuit judge upon an ex parte application, which seems to have been presented and treated as a part of this proceeding, made an order restraining a suit at law between Dunlap and several private parties as well as the...