106 Mich. 473 | Mich. | 1895
Lots 3, 4, 5, 6, 7, 8, and the southerly 12$ feet (the same width front and rear) of lot 2, block 11, plat of Lake City, now part of West Bay City, abut upon the east side of Williams street. The petitioner’s railroad, — i. e., the Cincinnati, Saginaw & Mackinaw Railroad Company, — is alleged to be located and in operation, being laid through Williams street, and said lots are adjacent and contiguous to said railroad, and petitioner seeks to condemn the lots mentioned for the purpose of a warehouse. From the award in favor of the petitioner, the defendants have appealed.
The Toledo, Saginaw & Mackinaw Railroad Company was organized in June, 1887. Its map, on file, designates a route along Williams street. In February, 1888, the Battle Creek & Bay City Railroad Company was organized, and in November, 1888, it obtained the passage of an ordinance by the common council of West Bay City granting the privilege of laying a track in Williams street, subject to the control of the council, and subject also to the privilege of subsequent railroad companies to use said track on certain terms, and it laid the track accordingly. This track was laid along the center of Williams street, and it is aimed that a side track was
Counsel for the 'defendants raise several questions, which they assert to be jurisdictional:
1. That the petition does not contain a. sufficient allegation of inability to purchase.
3. That this last was a preliminary question, which should have been settled before entering upon the question of damages.
The following other points are made against the proceeding :
4. That the description of the land in the petition is ambiguous.
5. That petitioner did not prove that it had filed the map and survey required by statute.
6. That the award is void for the reason that it attempted to give damages for the use of the street, and thereby, impliedly, to condemn it.
7. That there was no evidence that there was a necessity for taking the street.
8. That there was no evidence of the value of the lots, except as depreciated by the. existing road of petitioner.
9. That the damages were not apportioned among the defendants.
A bona fide effort to obtain the property by purchase is necessary, and the petition should show this. Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 576, and cases cited. This appears from the petition, which alleges that the “petitioner has not been able to acquire title to said lots and property, although it has tried to do so, for the reason that the Bay City & Battle Creek Railroad Company, the owner thereof, and the Michigan Central Railroad Company decline and refuse to sell the same to your petitioner, or to set a price thereon.” Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572, 70 Mich. 390.
The description in the petition is, in our opinion, free from ambiguity. Counsel for the defendants assert that it describes no rights in the street, and this is certainly true, except as to such rights in streets as are usually held to be conveyed when" a lot is described by number, block, and plat. The description is .the same as that by which the lots were purchased, and, if defendants ac
The next question arises over the right to condemn this property. It is said that this was a preliminary question; that the court should have determined the question of its necessity to the operation of the defendants’ railroad before calling commissioners; and that this question should have gone to a jury. In substance, this contention is that this property is not subject to condemnation in this proceeding because it is a condemnation of the track; that the commissioners can 'only determine the questions -of necessity for the purposes of petitioner, and value, and not whether this property is subject to condemnation, which is a jurisdictional question of fact. If the petition shows it to be subject to these proceedings, and the answer raises no issue of fact upon it, the jurisdiction is admitted. If it raises an issue of law, the court should determine it; if an issue of fact, that must be settled at some stage of the proceeding. Whether this
We think the failure to prove that petitioner had filed a map or survey of its line should not invalidate these proceedings. It was not a necessary subject of inquiry, no issue being raised upon it. The petition alleged the filing of such map and the certificate of location.
The award states that the commissioners were unable to apportion the amount among the defendants. It found the ownership of the property to be in the Bay City & Battle Creek Railroad Company, and that the Michigan Central Railroad Company had possession and control of said Bay City & Battle Creek Railroad Company, and all of its property, as owner, and that the Metropolitan Trust Company had a mortgage upon the franchises, line, and real estate to the amount of $250,000. The award shows that
We think that the proceedings should be affirmed, with costs.