Brush v. City of Detroit

32 Mich. 43 | Mich. | 1875

Pjsb Cueiam:

The city having carried on proceedings to condemn certain land belonging to tbe relator and others for a street, he asks a review upon certiorari. According to the finding of tbe jury if; was considered and determined that, aside iroin any allowance for benefits and enhanced value to the relator’s land not taken, tbo damage to him in consequence of taking the land to be used would be fourteen hundred dollars, but that the benefits and enhanced value to his land not taken, to flow from the establishment of the proposed street, would be nineteen hundred dollars; and thereupon it was further considered and determined that he should pay the sum of five hundred dollars as his just portion of the damages to be paid for the making of said street. And this sum the city has demanded of him.

It appears, among other things, by the record, that the notice relied on to initiate the proceedings in court, and which is to be published, and served- if practicable, was served on the relator, but it is admitted that the publication of it does not appear to have been sufficient, and that if the personal service cannot be -regarded as adequate .without regard to publication, the proceedings cannot' be sustained. The record fails to' show whether any of the other parties whose lands were sought to be condemned in the same proceeding and for the same street were personally notified, and hence it ■ fails to show whether the proceeding eventuated in the legal establishment of the street, and yet the proceeding was entire, and so was the object of it. If as to any of the parties no valid street was laid in consequence of the want of proper notice to any of the land owners, it is difficult to see -how the street can bo regarded as lawfully established as against the relator, so as to compel him ,to pay the city-money for benefiting him by the establishment of the street.

' This-objection in regard to the notice we think cannot be overcome, and wo do not stop to inquire whether, if all the land owners had appeared to' have been personally served, the defect in the publication would or would not have been fatal, although there is much reason for claiming that the charter imperatively requires notice to be given by publication in all cases. The other questions become immaterial.

The proceeding, so far as it affects the relator, must' be quashed, and he will recover-his costs.