Ziegler v. Sypher
| Decision Date | 30 November 1944 |
| Docket Number | No. 12.,12. |
| Citation | 16 N.W.2d 676,310 Mich. 93 |
| Parties | ZIEGLER, State Highway Com'r, v. SYPHER et ux. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
In the matter of the petition of Charles M. Ziegler, State Highway Commissioner, for condemnation of property of John Sypher and wife for highway purposes. An award of damages by commissioners was confirmed and payment thereof ordered by the probate court, and petitioner appeals in the nature of certiorari.
Award vacated, and case remanded.
Before the Entire Bench.
Appeal, in the nature of Certiorari, from Probate Court, Schoolcraft County; John J. Hruska, Judge.
Herbert J. Rushton Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara and Eugene F. Townsend, Asst. Attys. Gen., for appellant.
Richard W. Nebel, of Munising (Glenn W. Jackson, of Gladstone, of counsel), for appellees.
By statutory condemnation proceedings the State, acting through the State highway commissioner, in widening U. S. 2 in Doyle township, Schoolcraft county, acquired land on each side of the highway, which land theretofore belonged to defendants, John Sypher and Catherine Sypher, husband and wife. The commissioners appointed by the probate court to appraise damages upon hearing determined and awarded damages in the amount of $1427.50. See Act No. 352, Pub.Acts 1925, as amended. Over objection of the State highway commissioner incident to his motion to set aside the commissioners' report, this award was confirmed by the probate court and payment ordered. The State highway commissioner has appealed by certiorari.
Among reasons asserted in support of the appeal are: (1) That the commissioners used the wrong method in arriving at the amount of damages, and (2) that the damages awarded were excessive and in an amount contrary to the great weight of evidence.
The Sypher farm, composed of substantially 80 acres, is bisected by U. S. 2. The forty acre parcel on which the dwelling and other farm buildings are located fronts 80 rods on the north side of the highway, and the other forty acres is directly opposite on the south side of the highway. In the highway widening a strip of land 87 feet wide adjacent to the old highway was taken off from each forth acre parcel, except for a distance in front of the farm buildings the strip taken was narrowed to 47 feet. On the north side of the highway the widening process resulted in removing 60 rods of fense and 8 or 9 apple trees, but none of the buildings or the well on this north forty were within the land taken. There was also a well on the south forty located on land not taken by the State. Primarily the Syphers had used their farm incident to carrying on a dairy business, and the south forty had been used largely as a pasture. Because of a rock ledge along the south side of the highway there was only limited means of getting stock from the north forty onto the south forty; and because of large deposits of rock blasted out in the widening process and piled along the side of the highway obstructing the view, toegther with the increase of traffic and speed of vehicles on the highway, the practicability of using the south forty as formerly was very much impaired. Mr. Sypher testified that his dairy cattle, for the reasons noted, had not been pastured on the south forty since the highway was widened; and he asserted that for his dairy purposes the south forty was practically valueless. However, the record shows that more recently he has used the south forty for raising crops and the pasturing of young cattle, and during one season it was rented. Obviously in connection with such use the well on the south forty is available. The general character of the farm is disclosed by the testimony of Mr. Sypher, who upon being asked ‘what acreage is cleared’ testified:
The assessed value of the land is ‘about $700.00’; and there is testimony that assessed valuation ‘is about fifty or sixty percent’ of actual value. In other testimony there is a wide range as to valuation. A witness in behalf of the State testified in his opinion the fair cash market value of the property prior to the widening of the highway was $1300 to $1400; its value after the widening $1000 to $1100. Another witness in behalf of the property owners testified: ‘I think the farm could have been reasonably sold, a year and a half before the road went through, for about $3000.00 and I think now it would probably bring about $1200.00.’ Mrs. Sypher testified that the damage she and her husband had sustained by reason of the widening of the highway was $4000. We deem it unnecessary to refer to other testimony as to the cost of construction or value of buildings on the farm or the cost of removing the dirt and rocks piled along the side of the highway and somewhat over onto the Sypher property, the latter item being estimated by Mr. Sypher at ‘about Two Thousand Dollars.’
At the hearing in the probate court as to confirming or vacating the commissioners' award of $1427.50, the testimony convincingly disclosed that in arriving at the amount of the award the commissioners considered the testimony as to each of the following items:
+-------------------------------------------+
¦(1) Full value of south forty ¦ ¦
+----------------------------------+--------¦
¦acre tract ¦$600.00 ¦
+----------------------------------+--------¦
¦(2) Cost of replacing 80 foot well¦ ¦
+----------------------------------+--------¦
¦on south forty ¦160.00 ¦
+----------------------------------+--------¦
¦(3) Value of 2.5 acres taken from ¦ ¦
+----------------------------------+--------¦
¦north forty at $75.00 per ¦ ¦
+----------------------------------+--------¦
¦acre ¦187.50 ¦
+----------------------------------+--------¦
¦(4) Value of a frame building on ¦ ¦
+----------------------------------+--------¦
¦north forty ¦200.00 ¦
+----------------------------------+--------¦
¦(5) Value of 9 apple trees ¦ ¦
+----------------------------------+--------¦
¦removed from land taken ¦ ¦
+----------------------------------+--------¦
¦from north forty ¦190.00 ¦
+----------------------------------+--------¦
¦(6) Value of 60 rods of fence ¦ ¦
+----------------------------------+--------¦
¦taken from north forty ¦90.00 ¦
+----------------------------------+--------¦
¦Total ¦$1427.50¦
+-------------------------------------------+
Exhibit B substantially duplicates the foregoing items, and at the hearing in the probate court one of the commissioners gave the following testimony:
However, there is testimony that notwithstanding the commissioners gave consideration to the above items in arriving at their conclusion, the amount of the award was the result of their final determination as to depreciation of the value of this farm resulting from the widening of the highway. Notwithstanding this latter testimony we are convinced that the method used by the commissioners in arriving at the...
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