White Pine Hunting Club v. Schalkofski, Docket No. 21624

• Decision Date: 14 October 1975
• Docket Number: Docket No. 21624
• Citation: 65 Mich.App. 147,237 N.W.2d 223
• Parties: WHITE PINE HUNTING CLUB, a Michigan Corporation, Plaintiff-Appellant, v. Leonard SCHALKOFSKI, a Supervisor of Ossineke Township, Michigan, Defendant-Appellee, Cecil W. James et al., Intervening Defendants-Appellees, Harry Graves et al., Intervening Defendants-Appellees. 65 Mich.App. 147, 237 N.W.2d 223
• Court: Court of Appeal of Michigan — District of US

Page 223

237 N.W.2d 223

WHITE PINE HUNTING CLUB, a Michigan Corporation, Plaintiff-Appellant, v. Leonard SCHALKOFSKI, a Supervisor of Ossineke Township, Michigan, Defendant-Appellee, Cecil W. James et al., Intervening Defendants-Appellees, Harry Graves et al., Intervening Defendants-Appellees.

Docket No. 21624.

65 Mich.App. 147, 237 N.W.2d 223

Court of Appeals of Michigan.

Oct. 14, 1975.

Released for Publication Jan. 22, 1976.

[65 MICHAPP 148] Robert D. Mandenberg, Alpena, for plaintiff-appellant.

Myron David Orr, Ossineke, for Schalkofski.

Joel W. Gillard, Alpena, for James, Jacobs and Aukers.

Charles L. McCarter, Davison, for Graves and Greenfield.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

McGREGOR, Presiding Judge.

Plaintiff appeals as of right from an August 30, 1974, judgment dismissing its declaratory judgment action which had alleged that M.C.L.A. § 229.1; M.S.A. § 9.281 was unconstitutional.

The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land [65 MICHAPP 149] over which the road is proposed to be constructed. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity for the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual construction of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.

The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was. We disagree.

We find M.C.L.A. § 229.1 Et seq.; M.S.A. § 9.281 Et seq. to be repugnant to Const.1963, art. 10, § 2.

In Shizas v. Detroit, 333 Mich. 44, 50, 52 N.W.2d 589 (1952), our Supreme Court expressed its approval of the following quotation from 18 Am.Jur., Eminent Domain, § 34, pp. 657, 658:

'It is to be noted that few, if any, of the state Constitutions in terms prohibit the taking of property by authority of the state for uses that are not public. The characteristic provision found in the Constitutions of the several states, and in that of the United States as well, is to the effect that property shall not be taken for the public use without just compensation. Nevertheless, While the courts have not been in agreement on the precise meaning of the term 'public use,' it has been held, without a single dissenting voice, that the state does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensation.' (Emphasis added.)

Finding no 'public use' to support the statute before us, we therefore must conclude that the deletion of the constitutional sanction was fatal to its continued validity.

Reversed.

[65 MICHAPP 150] D. E. HOLBROOK, Judge (dissenting).

This writer finds himself unable to agree with the majority in this case.

Plaintiff appeals as of right from an August 30, 1974 judgment dismissing its declaratory judgment action which had alleged that M.C.L.A. § 229.1; M.S.A. § 9.281 was unconstitutional.

The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land over which the road is proposed to be laid out. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity of the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual laying-out of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.

The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was, and this writer agrees.

Plaintiff first argues that the statute provides for an unauthorized use of the power of eminent domain under Const.1963, art. 10, § 2. Plaintiff bases this argument on the fact that the property which is taken is not put to a public use. The intervening defendants use this same argument in asserting that the statute does not derive from the eminent domain power of the state at all; eminent domain only applies if the property in question is taken for a public use. This writer agrees with the intervening defendants. If property is taken for a private use, then it can only be done under some [65 MICHAPP 151] power other than that of eminent domain. This makes such cases as Shizas v. Detroit, 333 Mich. 44, 52 N.W.2d 589 (1952), largely inapplicable as they deal with eminent domain.

In many states the actual organic law provides for certain instances where the private property of one person may be taken and put to the private use of another. In these instances, there is not so much a current 'taking' as there is an inherent limitation on the extent of ownership of private property. This was the situation that existed in Michigan prior to the 1963 Constitution. In Michigan, Const.1850, art. 18, § 14 and Const.1908, art. 13, § 3, both provided for the taking of private property to establish private roads as is contemplated in M.C.L.A. § 229.1; M.S.A. § 9.281. However, all language dealing with the taking of private property to establish private roads was deleted from Constitution 1963, which contains no provision whatever comparable to the language which had appeared in Constitution 1850 and Constitution 1908. It appears that this deletion may have been made under the mistaken belief that the common law 'easement by necessity' was sufficient...