DEPARTMENT OF TRANSPORTATION v TOMKINS
Docket No. 132983
Supreme Court of Michigan
Decided June 11, 2008
481 MICH 184
Argued December 4, 2007 (Calendar No. 3).
The presumption of constitutionality of
- The phrase “just compensation” is a complex legal term of art and, as such, cannot be interpreted merely by construing it carefully. Rather, the entire taking provision of the Michigan Constitution has a technical meaning that must be discerned by examining the purpose and history of the power of eminent domain. Accordingly, the phrase “just compensation” must be given the same meaning that those sophisticated in the law gave it when the 1963 constitution was ratified. The fact that, before 1963, juries were entrusted with the task of determining just compensation does not mean that jurors had the unfettered discretion to define the term rather than applying the technical, legal meaning of the term in accordance with the court‘s instructions.
- The general principle that a court should leave the individual whose land was taken in as good a position as if the land had not been taken when awarding just compensation does not settle the specific question whether those sophisticated in the law when the 1963 constitution was ratified relied on that principle to include “general effects” damages in just-compensation awards. There is no clear indication in any reported Michigan case that such damages were ever awarded before 1963. On the contrary, pre-1963 caselaw holding that a property owner in a partial taking is not entitled to consequential damages arising from the taking of another person‘s property, together with secondary sources concerning the scope of damages recoverable for a partial taking, indicates that those sophisticated in the law before 1963 understood that the “general effects” of a taking that are felt by the public are not compensable in a partial taking. The cases on which the defendants rely do not explicitly endorse the principle that “general effects” damages are compensable in such cases; rather,
they focus on diminution or severance damages that were specific and unique to the remaining parcel, not effects that were felt generally by the public. Accordingly, because there is no clear indication that “just compensation” included “general effects” damages before the 1963 constitution was ratified, and because statutes are presumed constitutional, the statutory provision excluding such damages when determining just compensation is not unconstitutional.
Reversed and remanded to the circuit court.
Justice WEAVER, joined by Justices CAVANAGH and KELLY, dissenting, would hold that the Legislature, by imposing limits on what compensation a property owner could receive for a partial direct taking, violated the Michigan Constitution‘s guarantee of just compensation for property taken by the government, because the proper process for determining the amount of just compensation is left to a trier of fact. Further, “just compensation” should not be considered a legal term of art when it has long been readily and reasonably understood to be that amount of money that puts the property owner in as good a position as if the land had not been taken, which is a principle that encompasses “general effects” damages.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Raymond O. Howd and Patrick F. Isom, Assistant Attorneys General, for the plaintiff.
Rhoades McKee (by Scott J. Steiner) for the defendants.
Amici Curiae:
Patrick J. Wright for the Mackinac Center for Public Policy.
Hubbard, Fox, Thomas, White & Bengtson, P.C. (by Geoffrey H. Seidlein and Stacy L. Hissong) for the Michigan Association of County Drain Commissioners.
Miller, Canfield, Paddock and Stone, P.L.C. (by William J. Danhof and Jeffrey S. Aronoff), for the Michigan Municipal League, the Michigan Association of Counties, the Michigan Townships Association, the County
Ackerman Ackerman & Dynkowski (by Alan T. Ackerman and Darius W. Dynkowski) for other affected landowners.
YOUNG, J. This case involves a partial taking of defendants’ property in connection with the construction of the M-6 highway. We are asked in this case to examine the scope of damages permitted under the phrase “just compensation” in
Given the paucity of evidence indicating that, before 1963, those sophisticated in the law understood that just-compensation damages included “general effects” damages and contrary indications from pre-1963 caselaw and secondary sources, we conclude that the presumption of the constitutionality of
I. FACTS AND PROCEDURAL HISTORY
In connection with its construction of the M-6 limited-access freeway serving southern portions of Kent County, plaintiff Michigan Department of Transportation (MDOT) determined that it was necessary to condemn a portion of defendants’ two-acre parcel fronting Kenowa Avenue. The M-6 project called for MDOT to construct several bridge overpasses to accommodate existing roads such as Kenowa Avenue that would otherwise have been interrupted by the new freeway. MDOT estimated that it was necessary to take a portion of defendants’ land, approximately 49 feet by 120 feet, in order to construct the elevated overpass at Kenowa.
After defendants rejected MDOT‘s offer of $4,200 for the strip of land, MDOT initiated a condemnation action under the UCPA in July 2001.3 Experts for both parties agreed that the strip of land had a fair market value of $3,800. However, defendants also sought an additional $48,200 in damages to the remaining property that defendants’ appraiser attributed to the “dust, dirt, noise, vibration, and smell” of nearby M-6.
On January 23, 2004, MDOT filed a motion in limine or, in the alternative, a motion for summary disposition
The Court of Appeals reversed the circuit court, holding that the exclusion of “general effects” damages in
In addition, the panel, citing Campbell v United States,6 and decisions from other jurisdictions interpreting Campbell,7 held that in a partial taking, ” ‘[w]here the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the effect of the whole improvement is properly to be considered in estimating the depreciation in value of the remaining land.’ ”8 The Court of Appeals remanded to the circuit court to
MDOT filed an application for leave to appeal, which this Court granted.9
II. STANDARD OF REVIEW
Questions of constitutional interpretation and statutory interpretation are questions of law reviewed de novo by this Court.10 This Court also reviews de novo a trial court‘s decision to grant a motion for summary disposition.11
It is axiomatic that statutory language expresses legislative intent. “A fundamental principle of statutory construction is that ‘a clear and unambiguous statute leaves no room for judicial construction or interpretation.’ ”12 Where the statute unambiguously conveys the Legislature‘s intent, “the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case.”13 Statutes are presumed constitutional, and this Court exercises the power to declare a law unconstitutional with extreme caution, never exercising it where serious doubt exists with regard to the conflict.14
When interpreting our state constitution, this Court seeks the original meaning of the text to the ratifiers, the people, at the time of ratification.15 Technical legal terms must be interpreted in light of the meaning that those sophisticated in the law would have given those terms at the time of ratification.16
IV. ANALYSIS
In Silver Creek, this Court observed that the doctrine of eminent domain, the power of the government to take private property for a public use and with just compensation, is firmly established in both our federal
The Legislature enacted the UCPA in 1980 to make uniform the statutes that govern the exercise and
In Silver Creek, we recognized that the phrase “just compensation” cannot be interpreted “merely by a careful reading of the phrase.”21 Indeed, this Court has held that “the whole of art 10, sec 2 has a technical meaning that must be discerned by examining the ‘purpose and history’ of the power of eminent domain.”22 “Just compensation” falls into the category of words and phrases that is not capable of definition merely by reference to a dictionary. Rather, it is a phrase freighted with constitutional significance in our jurisprudence, specifically in the law of eminent domain. Thus, we concluded in Silver Creek that, as a technical legal term of art, we are required to give the phrase “just compensation” the same meaning given by those sophisticated in the law when
The provision of the UCPA at issue in this case is
The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation. A special effect of the project on the owner‘s property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensation, they may be offset by consideration of the beneficial effects of the project.
In this case, if the statute were applied to the partial taking of defendants’ property, defendants could not be
The Court of Appeals described the basic rule of damages in a partial taking as the value of the property taken plus the remaining portion‘s decrease in value that is attributable to the use made of the property taken.26 It held that the decrease or diminution in value of the remaining portion is determined by calculating the difference between the fair market value of the remaining property before and after the taking.27 In order to do this, the panel held that this Court‘s precedent required that ” ‘any evidence that would tend to affect the market value of the property as of the date of condemnation is relevant ....’ ”28 The Court of Appeals concluded that this broad, inclusive method of calculating the remaining parcel‘s diminished fair market value must take into consideration the general effects of the project for which the property was taken.
Defendants and their supporting amici curiae like-
The Court of Appeals also held that there is a distinction between liability in inverse condemnation cases30 and damages in direct, partial condemnation cases. In Spiek v Dep‘t of Transportation,31 this Court held that “[t]he right to just compensation, in the context of an inverse condemnation suit for diminution in value caused by the alleged harmful affects [sic] to property abutting a public highway, exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated.” The Court of Appeals declined to apply the rule of Spiek to this case because it held that Spiek was
The Court of Appeals also distinguished In re Petition of State Hwy Comm‘r (State Hwy Comm‘r v Busch),35 which MDOT claimed was crucial to grasping the pre-1963 understanding of “just compensation.” The Busch Court, citing Campbell v United States,36 stated that “[t]he general rule applied when part of a parcel of land is condemned is that just compensation does not include the diminution in the value of the remainder caused by the acquisition of the adjoining lands of others for the same undertaking.”37 The Busch Court
After considering the Court of Appeals’ reasons for ruling that
However, mere recitation of these principles calling for flexibility does not settle the matter.41 The particular question posed here is whether those sophisticated in
Defendants and their supporting amici curiae cite numerous cases that they argue support the proposition
One amicus curiae supporting defendants cites State Hwy Comm‘r v Schultz,46 as an example of “general effects” damages being awarded in a partial taking case before 1963. According to this Court‘s opinion, $300 of a $64,042.37 just-compensation award was attributed to “noise and disturbance.”47 The amicus argues that this brief mention of an award for “noise and disturbance” proves that before 1963 “general effects” damages were awarded routinely in partial takings.
We disagree with amicus that this is compelling evidence on which we could rest a conclusion that
Second, we disagree with the Court of Appeals interpretation of Spiek. The Court of Appeals relied on two scholarly articles to conclude that liability in inverse condemnation and direct, partial condemnation cases is necessarily different and that the rule of damages from Spiek must be limited to the former.49 One problem with
There is no dispute that an inverse condemnation claim and an actual, partial taking differ in form. An inverse condemnation claim is not initiated by the government entity under the UCPA because it has not appropriated a property interest for public use. Thus, the property owner must establish that the government‘s actions amounted to a constitutional “taking” of property. In an actual taking, liability for the taking has been conceded and the question is one of damages or “just compensation.” However, despite these formal differences, our review of pre-1963 caselaw does not suggest that “general effects” damages were treated differently in an actual, partial taking and an inverse
condemnation case. Indeed, as discussed below, there is some evidence that this Court applied principles from inverse condemnation to direct, partial takings cases before the 1963 Constitution was ratified.51 Thus, al- though we do not necessarily rely on Spiek to upholdFurther, unlike the Court of Appeals, we find Busch, supra, helpful in answering whether
We find additional guidance from this Court‘s plural-
ity decision in State Hwy Comm‘r v Watt,53 an instance
where a particular type of “general effect” damage—
diminution in value attributable to the diversion of
Justice KAVANAGH‘S opinion also addressed the possi-
bility that the state highway commission would later
build a cul-de-sac near Watt‘s property and potentially
cut off highway access. Regarding whether the possible
The
Fifth Amendment to the Federal Constitution andarticle 13 of the Michigan Constitution of 1908 , under which appellants here claim a remedy, proscribe the taking of private property without just compensation. Compens- able injury arises under those provisions, therefore, only from a taking of property rights.From a reading of the cases dealing with the problem, it is observed that the property-right injury to be found and redressed in cul-de-sac situations is the entire or material cutting-off of the access, of an abutting owner, to the general system of highways. As will be noted later, it is only on that basis that an abutting owner can properly make the necessary claim of special damage, i.e., damage not in- curred, in the same, greater or lesser degree, by the general public.57
In view of defendants’ claim that those sophisticated in the law before 1963 uniformly believed that “general effects” damages were compensable in a partial taking, Watt undercuts that thesis.58 Moreover, there is an important similarity between a claim of damages for the diversion of traffic and a claim of damages for the “dust, dirt, noise, vibration, and smell” caused by a highway. Both are “general effects” damages felt by the general public that are incidental to the building of a highway.
Furthermore, in the absence of strong primary au-
thority establishing a right to “general effects” damages
in partial takings before 1963, a useful secondary
source to which we turn to understand the pre-1963
It is a general rule, however, that the mere fact that one suffers incidental loss in consequence of the undertaking and construction of a public work, where nothing to which he has a legal right is actually appropriated, can never give him a claim to compensation.59
Thus, according to Justice COOLEY, where there is such “incidental loss,” it is damnum absque injuria—loss without injury.60
However, in a partial taking, Justice COOLEY wrote that “just compensation”
may perhaps depend on the effect which the appropriation may have on the owner‘s interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition of the condition in which it may leave the remainder in respect to convenience of use....61
Justice COOLEY elaborated on this rule of damages,
noting that those benefits or damages felt generally by
the public were excluded from the calculation. He wrote
that “mere incidental injuries or benefits, like those
suffered and received by the community at large, ... are
to be excluded altogether from the computation.”62
Similarly, in Constitutional Limitations, Justice COOLEY
stated that
These are, of course, only secondary authorities con- cerning the scope of damages recoverable for a partial taking. However, given the pervasive, perennial influ- ence of Justice COOLEY‘S scholarly work on the develop- ment of Michigan law, these passages buttress the inference that those sophisticated in the law before 1963 understood that those “general effects” of a taking felt by the public are not compensable in a partial taking.
The reality is that there is negligible direct pre-1963 caselaw or other evidence that allows one to say with conviction that our ratifiers understood that a taking included recovery of “general effects” damages, while there is some evidence pointing to the opposite conclu- sion. Given the standard of review we must apply in a constitutional challenge to a statute, we conclude that there is insufficient evidence to overcome the presump- tion of constitutionality.
V. RESPONSE TO THE DISSENT
The essential challenge of the dissent is that “just
compensation” is not a term of art but is an ordinary
phrase with a “commonsense” understanding—one
that before 1963, Michigan constitutions required a
Jurors in our system are instructed on the law; they do not determine the law. Thus, jurors are instructed by the court on the meaning of terms like “reasonable doubt,” “duty,” and “damages“—to name but a few such terms—all of which can be defined by laymen in a “commonsense way” but have legal meanings that diverge from their plain meaning. Thus, a jury cannot manufacture its own definition of “reasonable doubt” or any of the other similar legal constructs that we expect them to apply in any given case. It is not that juries are intellectually incapable of comprehending these concepts. Rather, we are recognizing that these terms and others have acquired technical, legal mean- ings over time, which a jury cannot abandon. Such is the case with “just compensation.”
While the dissent purports to revere Justice COOLEY,
it assiduously ignores Justice COOLEY on this critical
[I]t must not be forgotten, in construing our constitu- tions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history; and when we find them expressed in techni- cal words, and words of art, we must suppose these words to be employed in their technical sense. When the consti- tution speaks of an ex post facto law, it means a law technically known by that designation; the meaning of the phrase having become defined in the history of constitu- tional law, and being so familiar to the people that it is not necessary to employ language of a more popular character to designate it. The technical sense in these cases is the sense properly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights.66
The dissent‘s position is also internally inconsistent.
First, it endorses the “integral and inseparable”
method of the Court of Appeals for determining
whether “general effects” damages should be compen-
sated, without acknowledging that that test would not
place the property owner whose property is “separable”
from the larger project in the same position he was in
prior to the taking. This result is inconsistent with the
dissent‘s guiding principle for awarding “just compen-
sation.” Further, the dissent fails to comment on the
illogical outcome that results from its position when
neighboring property owners suffer the same “general
effects” damages but only one has experienced a partial
VI. CONCLUSION
Our decision is not a reflection of what this Court
believes “just compensation” should encompass in a
partial taking. Rather, we have been presented with a
question of constitutional law requiring that we ascer-
tain the common understanding of those sophisticated
We reverse the Court of Appeals judgment and re- mand to the circuit court for further proceedings con- sistent with this decision.
TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., con- curred with YOUNG, J.
WEAVER, J. (dissenting). I dissent from the majority
opinion reversing the Court of Appeals judgment and
holding that
Furthermore, I dissent with regard to the majority‘s
constitutional analysis of the term “just compensation,”
because the majority‘s interpretation of “just compen-
sation” as a legal term of art creates a circular analysis
that seemingly abrogates the common understanding of
“just compensation” before this Court‘s first analysis of
“just compensation” as a legal term of art in Silver
Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367;
663 NW2d 436 (2003). I continue to disagree that “just
compensation” is a legal term of art that only those
learned in the law would have understood when the
I. FACTS AND PROCEEDINGS
Plaintiff Michigan Department of Transportation
(MDOT) initiated this condemnation action under the
Experts for both plaintiff and defendants agreed that the market value of the strip of land at issue was $3,800. The defendants sought additional compensation of $48,200 for the diminution in value of their remaining parcel of land, caused by negative effects arising from the “dust, dirt, noise, vibration, and smell” of the nearby M-6 highway.
Plaintiff filed a motion in limine, arguing that evi-
Plaintiff filed a motion for summary disposition
under
The Court of Appeals reversed the trial court‘s deci-
sion to grant plaintiff‘s motion in limine.3 The Court of
Appeals held that all relevant factors must be taken
into account when determining the value of just com-
pensation under the
Plaintiff sought leave to appeal in this Court, and this Court granted leave.5
II. STANDARD OF REVIEW
Questions concerning the constitutionality of a statu- tory provision are subject to review de novo. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001).
III. THE CONSTITUTIONALITY OF MCL 213.70(2)
Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.
This Court has held on a number of occasions that the
just compensation provided in
In the instant case, plaintiff MDOT sought to directly take part of the defendants’ property. In cases involving claims of partial taking, this Court has held that “just compensation” entitles the property owner to direct compensation for the value of the property taken, and consequential damages for the diminution in value of the remainder of the property owner‘s property.8 “[A]ny evidence that would tend to affect the market value of the property as of the date of condemnation is rel- evant.” Dep‘t of Transportation v VanElslander, 460 Mich 127, 130; 594 NW2d 841 (1999). The determina- tion of value is not a matter of formulas or artificial rules, but of sound judgment and discretion considering all the relevant facts in a particular case.9
The
The general effects of a project for which property is taken, whether actual or anticipated, that in varying de- grees are experienced by the general public or by property owners from whom no property is taken, shall not be
considered in determining just compensation. A special effect of the project on the owner‘s property that, standing alone, would constitute a taking of private property under section 2 of article X of the state consti- tution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensa- tion, they may be offset by consideration of the beneficial effects of the project.
The Court of Appeals correctly held that
The majority errs by ruling that
With regard to the Court of Appeals remand order to the trial court to determine whether the Kenowa Av- enue overpass was “integral [to] and inseparable” from the M-6 project, the Court of Appeals correctly decided the issue. The “integral and inseparable” method, adopted from the Connecticut Supreme Court‘s An- drews decision,10 is a method of “sound judgment and discretion” that allows owners of land that was directly, but partially, taken to prove that their remaining prop- erty suffered diminution in value as a result of the taking.11
In this case, the proper question in determining the
Accordingly, I vote to affirm the Court of Appeals decision remanding the case for trial, and I support the reasons for the Court of Appeals decision.
IV. “JUST COMPENSATION” AS A TERM OF ART
In Silver Creek, a majority of justices held that the
Constitution‘s term “just compensation” was a legal
term of art that only those learned in the law could have
understood when the
The majority, sticking to the “learned in the law”
form of analysis, looks only to past cases interpreting
the “just compensation” provision of the
In my Silver Creek dissent, I noted the long-
established condemnation rule that “‘just compensa-
tion’ has long been readily and reasonably understood
to be that amount of money that puts the property
owner whose property is taken in as good, but not
better, a financial position after the taking as the
property owner enjoyed before the taking.”14 In the
instant case, the majority disregards this rule because
this Court had never specifically used it with regard to
“general effects” damages. However, common sense
dictates that if compensation for the “general effects”
damages would serve to place the landowner in the
position he or she was in before the taking, then
“general effects” damages would be includable in “just
compensation.” But the majority‘s “legal term of art”
Rather than adhere to the majority‘s “legal term of
art” analysis of “just compensation,” this Court should
return to Michigan‘s longstanding rule for interpreting
the
[t]he interpretation that should be given [the Constitution] is that which reasonable minds, the great mass of the people themselves, would give it. “... [T]he intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding....” 15
As I stated in my partial dissent in Silver Creek, 468 Mich at 383, “this Court should not engage in a method of constitutional construction that unnecessarily side- steps the long-established primary rule of constitu- tional construction.” Accordingly, I continue to dissent from the majority‘s “legal term of art” analysis of “just compensation.”
V. CONCLUSION
I dissent from the majority opinion reversing the
Court of Appeals judgment and holding that
Furthermore, I dissent with regard to the majority‘s constitutional analysis of the term “just compensation,” because the majority‘s interpretation of “just compen- sation” as a legal term of art creates a circular analysis that abrogates the common understanding of just com- pensation before this Court‘s first analysis of “just compensation” as a legal term of art in Silver Creek.
CAVANAGH and KELLY, JJ., concurred with WEAVER, J.
Notes
In re Widening of Bagley Ave, 248 Mich at 4.(1) what was the ratifiers’ common understanding of the phrase “just compensation” when they ratified
Const 1963, art 10, § 2 , and was it commonly understood that “just compensation” in inverse condemnation cases was different than “just compensation” in direct, partial taking cases; and (2) whether § 20(2) of the Uniform Condemnation Procedures Act,MCL 213.70(2) , impermissibly conflicts with this established meaning of “just compensation.” [Id.]
Under the 1850 and 1908 constitutions, the necessity of the taking and the compensation were to be determined by a jury of 12 freeholders. The 1908 Constitution also allowed for a panel of commissioners to resolve these questions. See, e.g.,
Also, Michigan voters approved a 2006 ballot proposal that amended
In short, all these cases were either inapposite to the issue in this case or they reviewed just-compensation awards that did not include “general effects” damages but, rather, included damages that were specific and unique to the property subject to the partial taking.