156 Mich. 106 | Mich. | 1909
In conformity with an act entitled: “An act to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets” (2 Comp. Laws, §§ 4229-4261), an agreement was made between the city of Detroit, party of the first part, and three steam railroad companies and the Detroit United Railway, described as parties of the second part, for a separation of grades at various points in said city, for paying the cost of making and maintaining such separation of grades, and for a division of the total expense thereof between the parties thereto. Thereafter proceedings were instituted in the recorder’s
“Now, therefore, in consideration of the premises and the mutual undertakings of the parties hereinafter expressed, it is agreed; * * *
“(2) That the city * * * shall, and hereby does, assume the payment of all abuttal damages, if any there be, to property of persons other than the parties of the second part, arising in any way from said change in the grade of any of such streets, and all cost, expense, charges, or liability in any proceedings which may be instituted to effect such separation of grades, or which may be insti*110 tuted to prevent the performance of this agreement, * * * and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any abutting property owned or controlled by them, or any of them.
“ (3) * * * The said second parties, and each of them, shall release all damages, charges, or claim arising from loss of traffic or otherwise, occasioned by said changes of grade.”
Greenwood avenue is within the district lying between Woodward and Michigan avenues. It was deemed by the city inexpedient to attempt settlement or compromise with property owners, for which reason the intervention of a jury became necessary.
The particular improvement, which was in fact a single one, required the elevation of tracks of three railroad companies and a considerable change — lowering—of the grade and level of the street. The elevation of the tracks made it necessary to remove, and afterwards relay, a spur track which accommodated the Penberthy Injector Company. Interruption of business and resulting private loss was occasioned by interference with public travel on the street while the work was in progress. The principal question presented is the one of the statute meaning of the phrase “ the amount of damages to such property as may be damaged thereby,” this being what the jury is required to ascertain and determine; compensation for “such damages” being what is to be awarded “to the parties interested.” 2 Comp. Laws, § 4244. Included in this is the question whether compensation must be made for any damages caused by the change of the grade of the railroad right of way — by the elevation of the tracks.
Counsel entertain widely differing opinions about the scope and effect of this legislation, for which they find reasons, in the meaning they give to the words, in the general purpose of the law and in the previous state of the law. As would be expected, these opinions favor on the one hand a liberal construction of what is denominated a “remedial statute,” on the other hand a construe
The statute now considered points out the class entitled to compensation. It denies compensation for damages unless they result from the change of the grade of the street. A noticeable provision of the statute is the one which requires that an accurate profile and map be made of the portions of the street and of the railroads the grades of which are to be changed, and a detail plan of the improvement itself, as well when the improvement is made by agreement as when it is made at the instance of the railroad and street-crossing board. It is the necessity for the improvement so proposed and planned which the jury
Abutting property, none of which is taken, is not damaged, within the meaning of this statute, which is worth no less after the improvement is made than it was worth before it was made.
“If the fair market value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained, and no recovery can be had.” Springer v. City of Chicago, 135 Ill. 552 (12 L. R. A. 609, 615).
“The instruction refused and those given are based upon the theory that the cost of putting the property in as good condition as it was before the change of grade, less resulting benefits, is the measure of damages. Such, we think, is not the best and plainest statement of the true measure of recovery. The right to recover is derived from the statute alone (Code, § 469), and is not based upon alleged wrong, as in the cases cited by the appellant.*114 The evident purpose of the statute is to make the property-owner whole, and no more. The difference in the value of his property as it was just before the change of grade, and as it was just after, as affected by the change, is the exact amount to which he has been damaged. If, because of benefits resulting to the property from the change, it is rendered as valuable, or more so, than before, there is no damage; but, if less valuable, there is, to the extent of the difference. Resulting benefits are considered in these cases. McCash v. City of Burlington, 72 Iowa, 26. It is true that the reasonable cost of putting the property in the same condition in which it was before the change, less resulting benefits, will lead to the same result as tibe rule we have stated; but there are several reasons why that is not the plainest and best statement of the measure of damages. It does not plainly and directly present to the minds of a jury the ultimate fact to be arrived at, and generally, if not uniformly, the property has not or cannot be put in the exact condition that it was before the change; as, in this case, a sum is expended in refitting the property to the new grade, and in doing so it has new material and new walls instead of the old. It is not refitted to be the same as before, and the jury must go through confusing investigations of the value of the new material and betterments over the old. Evidence as to the reasonable cost of putting the property in the same condition that it was in before the change is admissible, and proper to be considered, as it is one means of arriving at the difference in value as caused by the change. Another means is the opinion of competent witnesses as to the value of the property before and after. The ultimate fact to be arrived at is the difference in the value of the property as caused by the change of grade. This should be given to the jury as the measure of damages. This measure is alike applicable whether the property has been refitted to the new grade or not. See Meyer v. City of Burlington, 52 Iowa, 560.” Stewart v. City of Council Bluffs, 84 Iowa, 61.
We approve of the rule thus stated by the supreme court of Iowa. See, also, Chase v. City of Portland, 86 Me. 367; Com. v. Sessions of Norfolk, 5 Mass. 435; Buell v. County of Worcester, 119 Mass. 372; Chambers v. South Chester, 140 Pa. 510; Philadelphia Ball
What is just compensation within the meaning of the statute ? It is not easy, perhaps is impossible, to lay down any but broad, general rules. Section 4231 provides for a compromise by the municipality with “ any person having an interest in any lands abutting on that portion of the street or highway within the city of which the grade
In the contemplation of the statute compensation is to be awarded, in gross, before the improvement is begun, and to be apportioned among those interested in the land. It would be mere speculation to attempt to determine the loss of profits of a business to be continued on the premises, to be occasioned by a change of grade to be made. The fact that in the present case the improvement was completed before this proceeding was instituted, and the fact, if it is a fact, that certain profits claimed to have been lost can now be certainly proven, do not aid us in arriving at the statute measure of compensation. As has been said, the statute contemplates an award before the improvement is made. Where the right to use premises attaches to the interest of the claimant in such premises, and it is apparent that such use will be wholly and permanently lost, or will be abridged, as a result of the effect of the change of grade upon the premises, the fixing of just compensation may involve some inquiry into the nature of the use and the effect of its loss or abridgment. We have heretofore held (City of Detroit v. C. H. Little Co., 146 Mich. 373) that just compensation to a tenant evicted by the change of grade is not necessarily the value of his term less the rent reserved. That rule might, and it might not, afford indemnity. In a majority of eases it undoubtedly would afford just compensation, and any mere abridgment of the value of the tenant’s interest in the property will usually be recompensed in the application of the rule. We do not intimate that the nature of the title upon which interest is grounded, the duration of a tenant’s term, and the right of the landlord, by notice or by statutory proceedings, to determine
We cannot say that it was error to exclude testimony of the effect of other separations of grades upon the property in the immediate vicinity of those changes, or to exclude evidence of the fact that on other streets in the city the slope or inclination of the street exceeded that upon the street in question after the improvement was completed. There are many circumstances and conditions affecting particular localities in cities. A comparison of existing and known conditions invites innumerable issues. The number of such issues will not be diminished in any attempt to prove that the same results will follow the same improvements in different localities.
The recorder said to the jury:
“The onus of any uncertainty that exists here is upon the petitioner. This is not an action upon contract, but it is more in the nature of an action of tort, wherein these respondents had no chance to agree or disagree with the proposed improvement, but were entirely innocent parties; and, if anybody has to suffer by reason of the necessary uncertainty of the testimony, it ought in all justice to be the active, moving party, the petitioner, and not the innocent, passive parties, the respondents.”
In this we think he was in error. Testimony too uncertain in its nature to establish a right to compensation under the provisions of this statute may not be made cer
Some other questions are argued in the briefs. None of them are related to the facts involved in the particular appeals. The views we have expressed require a reversal of the order of the court below as to all of the appellees except the Detroit United Railway.
Respondent Lindsay is sublessee of the Goebel Brewing Company, lessee of Charles A. Kandt, who owns two lots affected by the improvement. The owner valued his property at $7,500 before the work of improvement was begun. Goebel Brewing Company had a written lease of a building on the property, expiring in 1908, the rent reserved being $55 a month. Lindsay, who occupies the building with a grocery and saloon, under a parol lease from the brewing company, paid $55 a month to that company. The jury awarded the owner $4,400, the Brewing Company $700, and Mr. Lindsay $1,500, a total of $6,600. The awards to the owner and to the brewing company are not involved in this appeal. The award to Mr. Lindsay is based wholly upon testimony tending to prove loss of profits and deflection of his trade, occasioned by inconvenience of access to his store and interference, generally, with travel upon the street and upon the railroad property adjoining his property. The same is true of respondents Croul and McNutt. They are tenants from month to month. We award a new trial to each of these respondents, assuming that they may regard themselves entitled to some damages under proper rules.
As to respondent Detroit United Railway, the question is one of interpretation of the agreement, the initial act in the proceeding, to which agreement it was a party. It is a provision of the agreement that the city assumes the payment of all abuttal damages to property of persons other than the parties of the second part, arising in any way from said change of grade and all cost, expense, charges, or liability in any proceedings which may be instituted to effect or to prevent the contemplated changes
“That the waiver claimed by the city in the agreement existing between the city and the Detroit United Railway does not cover the property in question in the contemplation of the statute, which was the basis of the agreement made between the city and the Detroit United Railway.”
The statute, as we have seen, contemplates the payment of damages to street railway companies for interference with tracks. It places no part of the original burden of cost of separation of grades upon them, and the respondent is a voluntary party to the agreement which was made. It is admitted that in some of the streets affected by the agreement the street railway has no interest ; in others it is interested as owner of abutting property, or of a railway in operation, or both as owner of abutting property and of a railway. The agreement in general terms imposes upon “the parties of the second part ” responsibilities and liabilities which it is clear are to be borne by the railroad companies alone. If the agreement did not also, in other portions of it, deal specifically with the liabilities assumed by each of the parties of the second part, there would be more force to the argument made for respondent. But it does in detail specify the things which each party of the second part agrees to do. It does not, however, in terms, modify or enlarge the liability assumed on the part of the city to pay “ all abuttal damages to property of persons other than the parties of the second part. ” There is no modification of the waiver above recited. There is the further distinct waiver that “the said second parties, and each of them, shall re
We award costs of this appeal against the appellees, ■ jointly and severally, to the appellant city.