90 Mich. 385 | Mich. | 1892
Lead Opinion
This is a proceeding for condemnation under Act No. 388, Local Acts of 1889, relating to parks and boulevards and other public grounds of the city of Detroit. The petition was filed in the recorder’s court of the city of Detroit on May 22, 1891, and a jury duly impaneled to ascertain and determine the necessity of taking the several parcels of land, and to award the compensation. The cause was heard, the jury found the necessity of taking the land, awarded damages, and the
The first question presented is, does the boulevard act, being Act No. 388, Local Acts of 1889, confer upon the •commissioners the right to condemn and take an easement? Section 15 provides that the commissioners ■may acquire, by legal proceedings,—
“Any lands or interest in land which may be found necessary for the opening' of any park and enlargement or extension of any park or boulevard which may here.after be laid out, located, or established.”
The act in question relates to a boulevard already ■established under a previous act, which provided for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit, and through portions of the townships of Iiamtramck, Greenfield, and Springwells. It was known to the Legislature that this broad street or boulevard of necessity crossed the right of way of numerous railroad companies.- The term “interest in land” should be so construed as to give •effect to the act, and to further the very evident intent •of the Legislature.
The act is far less crude that was the one under consideration in Paul v. Detroit, 32 Mich. 108. It was there claimed that the charter of the city declared all alleys highways, and attempted to take, not the use only, but the fee of the land for them. Justice Campbell, in rendering the opinion of the Court, said:
“Such, no doubt, is the reading of section 27, and it is an instance of the carelessness and want of accuracy with which the charter has" teen made incongruous in many respects. But the language of one section cannot be allowed to destroy or confound the remainder. It is perfectly evident that it can never be necessary to take & fee-simple absolute for either alleys or streets. But the omission of that provision will leave the lands taken .subject to all public uses which are appropriate, and it*390 may therefore be disregarded except as to such lands, if any, as require a fee to maintain public uses. * *' * It will be found that the charter contains identical provisions for taking lands for ‘highways, streets, avenues, lanes, alleys, public grounds or spaces/ and that section 27 declares all these alike highways, and declares the interest to be a fee. But this enumeration contains not only different sorts of easements, but also uses entirely inconsistent with any general passage for highway purposes. Grammatically the section means nothing, for it declares that ‘ the same ’ shall become a public highway, when there has been no reference for several sections to the land at all. It can have no consistent meaning except by confining the term ‘ highway * to lands taken for that specific use.”
So, in construing the present statute, the provision of section 25 that upon the confirmation of the report, and upon payment, tender, or deposit of the compensation, “all the title of the persons who have been made parties as interested in the lands in question shall become and be vested in the city of Detroit, its successors and assigns, for ever, for the uses and purposes for which the same was taken,” when construed in connection with the previous section, may well be held to mean that the title or interest which is subject to condemnation, and essential for the uses and purposes for which the same was taken, may become vested in the city.
The cases cited do not, I think, conflict with these views.
In re Amsterdam Com’rs, 96 N. Y. 351, the act in terms provided that the village should become seised in fee of the property so required. The case was not one where the property sought to be condemned was subject to a previous public servitude.
In the case of DeCamp v. Railroad Co., 47 N. J. Law, 43, it is held that the term “land” includes the whole estate; but it is said:
“The cases in our own courts holding that one rail*391 road company condemning lands already in use by another company will acquire only a right of crossing, and the use of the place of crossing in common with the other company, do not hear on this question. In such cases the legal effect of the condemnation is restricted to a right of way for a crossing, without the exclusive possession and use, not as a matter of choice with the condemning party, but as a legal consequence of the principle of law that the condemnation is inefficacious to destroy or impair the franchises of the other company. State v. Railroad Co., 36 N. J. Law, 181; Railroad Co. v. Long Branch Com’rs, 39 Id. 28.”
In the case above referred to (State v. Railroad Go.) the court, in construing the statute which provided that, if a company cannot agree with the owner of lands’ or materials required, a particular description of the land or material required shall be given in writing under oath to one of the justices of the supreme court, who shall cause notice to be given to the persons interested, if known, say: '
“By owner is meant the person having some legal estate which the company proposes by the condemnation to acquire. Under the more comprehensive expression of 'persons interested’ are included not only the person in whom is vested the legal title which the company proposes to acquire as indicated by the application, but also other individuals having some independent right or interest therein not amounting to an actual legal estate, such as an easement of a right of way, inchoate rights of dower or curtesy, or incumbrances.”
In my opinion, where, as in the present case, the condition of the title and interests in the property sought to be subjected to the public use is such that a greater estate would be inconsistent with the public use to which it has been dedicated, there is no difficulty in saying that the language employed by the Legislature is sufficiently broad to confer the right to acquire such an easement as is sought to be appropriated in the present case.
It is contended that the court was in error in refusing
The doctrine laid down in Grand Rapids v. Railroad Co., 58 Mich. 648, is applicable to this case. It was there said:
“ The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against- accident. Under the Constitution there must be just compensation, and this, cannot be denied by law.”
Some other errors are claimed, but what we have not noticed must be overruled.
For the error pointed out, the verdict and order of confirmation must be reversed, and the case remanded to the jury for further proceedings.
Costs of this Court will be allowed respondents.
Dissenting Opinion
(dissenting). These proceedings were instituted by the commissioners of parks and boulevards of the city of Detroit to condemn a right of .way for the use of the boulevard across the tracks of the defendant companies. The averment in the petition descriptive of the use to which the land is sought to be appropriated is as follows:
“ It is intended by this petition to take and condemn, for the purposes of a crossing of the said boulevard, as a public highway, over the r'ghts of way of the said above-mentioned railroad companies, all the land and right of way within the limits of the said boulevard extended northerly and southerly over said rights of way, and so much of the interests of the said railroad companies therein as may be necessary for the purposes -of the said crossing, and only for said purpose, and not*393 otherwise affecting the interest or interfering with said railroad companies.”
It appears from this averment that the petitioners recognized that they could not condemn the fee of these ^ands for the purposes of the boulevard because they had already been appropriated and devoted to another public use. The respondents cannot be deprived of the use of land which they have legally acquired, without express authority from the Legislature. It is not contended that the boulevard act confers any such authority. Under the proceedings the petitioners asked and obtained an easement, to wit, a right of way over the defendants’ roads. Does the boulevard act confer upon the petitioners the right to condemn and take an easement, is the important question now raised.
The act in question vests in the petitioners the control of the parks and boulevards of the city. The boulevard is 150 feet wide. It does not lead into the city, but, under the provisions of the act, is to extend around it from the river on the east to the river on the west, while in fact it is now only laid out from Jefferson avenue on the east to Fort street on the west, and is far from completion between these points. It is not a “street” or “highway” in the sense in which these terms are usually understood. It is intended to be used more -for pleasure than for business traffic.
Section 15 of the act empowers the commissioners to receive conveyances of lands for “parks, public grounds, or boulevards,” and to purchase, with the approval of the council, any lands, and to acquire by legal proceedings, in the manner provided, “ any lands or interest in land which may be found necessary for the opening of any park and enlargement or extension of any park or boulevard,” etc. By section 21 the jurors are required “to ascertain and determine the necessity of taking the
“All the title of the persons who have been made parties as interested in the lands in question shall become and be vested in the city of Detroit, its successors and assigns, forever, for the uses and purposes for which the same was taken.”
The term “interest in land” used in the statute does not refer to an interest which the city may take out ■ of the fee, but to the interest which one may have in the land sought to be taken, less than the fee, such as a dower or leasehold interest.
Under these provisions the entire title to the lands taken is vested in the city. The language used is not, in my judgment, susceptible of any other interpretation. The fee is conveyed when the land is taken under this act just as certainly as it is when land is taken for a park, cemetery, or school-house site. The reason for thus acquiring the title is apparent from other provisions of the act. Parks, public grounds, and boulevards are placed in the sole control of the commissioners, who are charged with their management, maintenance, and care, the regulation of their use, their improvement and ornamentation. The evident purpose of the act is to obtain the entire title, so that no question can be raised as to the power of the commissioners, and their right to exclusive jurisdiction over these public places.
No power is expressly conferred by this act to obtain a right of way except by obtaining title to the land. No power to condemn an easement can be inferred where the only power given by the statute is to condemn the'
In ascertaining the legislative intent courts are limited to the plain provisions of legislative acts. In these proceedings to take land for the public use the power to take is limited to the express provisions of the law, or must of absolute necessity be implied. Because the boulevard, as established under the act of 1879, crossed these railroads, we cannot infer, either as a matter of law or fact, that the Legislature intended to confer upon these commissioners the power to condemn a right of way across them as though the boulevard were an ordinary street or highway, and the crossing necessary to make it available for use. The boulevard, is about eleven miles in extent. From Jefferson avenue it extends fully three miles before reaching a railroad crossing. Two crossings are there in close proximity. 'After these crossings are passed, it extends more than four miles before reaching the tracks of two of the respondents, after which it reaches the tracks of the Michigan Central Eailroad. It is reached and crossed by all the avenues and streets extending from the river front and interior of the city. It is obvious that the necessities of business do not require the right' of way across these railroads, and that the boulevard can be used for purposes of pleasure without it. Under these circumstances I do not think that legislative action authorizing the condemnation of a right of way can be inferred. The question of crossing these roads where there are many tracks, over which an immense traffic is carried on, was of great importance; yet it is not mentioned in the act. If the Legislature knew that the route of the boulevard was across these tracks, and yet made no provision for crossing them, the
Further action on the part of the Legislature is necessary before the petitioners can obtain a right of way across the defendants* roads.
The order of the court below confirming the report of the jury should be set aside, and the proceedings quashed.
Assuming that the petitioners possess the power to condemn, I concur with my brethren in the conclusion reached by them on the other branch of the case.
