15 Mich. 474 | Mich. | 1867
We can not, I think, in the present condition of this record, properly make a final disposition of .this cause by reversing or afiirming the judgment and proceedings in the Recorder’s Court.
The only portions of the proceedings properly authenticated or certified are the verdict or report of the jury, the objections filed to its confirmation, certain affidavits, the order confirming the report, and the appeal. .
These are properly certified by the-clerk. The request to charge the jury, and the charge or instructions given, are not officially authenticated in any way. In fact, the clerk could not properly certify them, unless they were put in writing and filed. The clerk, however, has not attempted to certify either the request or the charge; but an attempt has been made to bring these before us by stipulation of counsel for the respective parties.
It is not competent for parties, by stipulation, to determine for review in an appellate court what w.ere the rulings or the judicial action of the judge, of which a review is sought. This information must in some way come to us under the sanction of the judge himself.
Again, it does appear that certain affidavits were filed in support of the objections to the confirmation of the report; and these are properly certified by the clerk, But it does not appear whether these affidavits were received and considered, or rejected by the court. His action in this respect must be stated by himself. The clerk can certify nothing which does not appear of record or upon the files. The statute giving this appeal is peculiar. It gives the right to a review in this court by appeal, but
We think, therefore, the statute, by fair intendment, must be understood as requiring of the Recorder a special report or finding as to all the objections (filed) to the confirmation under section sixteen, and set forth in the specification of errors, on appeal under section twenty-one, and all his judicial action in reference thereto, except what already appeal’s upon the files; and that such report or finding should be filed by him with the clerk, and come up with the record.
Among the specifications of errors stated in the appeal, it is alleged that the Recorder refused to charge, as requested, against the assessment of benefits in reduction of damages, and that he did charge the jury that they were at liberty to determine the benefits or enhanced value that would accrue from the proposed improvement to the portion of said property not taken, and deduct the same from the damages or compensation they would otherwise award.
If this charge was given, it became the duty of the jury, under section thirty - eight, chapter seven (amendment of 1865), if that act is valid, to determine the benefit or
But it does not appear by the record, in its present shape, whether such instructions were given. This appears only by the stipulation, which, as we are all agreed, can not be recognized as proper evidence of what the instructions were. If it be competent to determine by stipulation the abstract fact that instructions were given by the Recorder, this does not advance us a single step, as we can not from this infer what the instructions were; and they may have been directly the reverse of what is supposed.
The fact that but one thousand dollars damages were given, while the affidavits show the property worth seven thousand, may furnish an inference that the jury probably allowed benefits in reduction of damages. But this may have been without any instructions, or contrary to instructions, or because they took a different view of the value. But to reverse the proceedings upon the loose inference of such instructions, to be drawn from facts stated in these affidavits, would be to substitute these affidavits for the report or finding of the Recorder, which would be quite as objectionable as to substitute the stipulation for such finding or report. I see no proper justification for such substitution of either, while the report of the Recorder can so easily be obtained. Until we have such report,
As it was ■ the duty of the Recorder to have made and filed such finding or report, -I can see no. reason to doubt our power to require of him the performance of that duty now.
The appeal has been properly taken, and we ought not, therefore, to'dismiss' it- for any ’defect for which the appellant'is'notin' fault;- I think, therefore, an order ¡should be entered requiring a special, report .or finding by ..the Recórder as to 'all the matters above indicated, which should be filed with the clerk of that court, and. by him be certified to this court, as a part of the record, for such further action as the case may require.
In this case objections are - made to the charge by the Recorder to the jury; to the rule of damages supposed to have been adopted by the jury; to the form of the verdict or report, and to the ruling supposed to have been made by the ‘ Recorder upon affidavits presented to him in opposition to the motion-for. confirmation of the, report., The record, as filed in this court, is exceedingly imperfect, and none of the questions are presented as they should be for our decision. ' v • ■
The charge made by the Recorder appears in the case in nb other way than by a stipulation of .the parties. It has been "frequently decided that parties eould not be allowed, m this way, to settle for themselves the. decisions made by. the courts — Niagara Fire Insurance Co. v. DeGraff 12 Mich. 10 — and the reason for this-is too- con- ■ elusive to warrant the practice being departed from in any case. 'Wherever the 'statutes provide for a review by this court of the decisions made by other tribunals, they contemplate that the proceedings of those tribunals should be
It is difficult to read thé provisions on the subject of opening streets in the Detroit charter without being struck with their obvious deficiencies. The provision for iilstrueting the jury in their duties would seem 'to leave it optional with the Recorder‘whether they-should be instructed to allow benéfits: Laws, 1865, p. 681; and there is'n'o provision which', in express terms, requires’the' Recorder to put in writing his 'rulings. As, however, an appeal is allowed to this court, by which the rulings of the ’Recorder in' matters of law are to be reviewed: Lazos, 1857, p. 124, §§21 to 25; and as the only return provided for is- of a certified copy of the proceedings, to be sent up by the clerk of that court — §22 — and as it is impossible for'the clerk to return the proceedings which show the ridings of the Recorder anterior to the final decisions, except as they may be put in writing by the Recorder hiinself, and placed on file, the implication from the statute that this must be done is so strong as to be imperative. 'The impossibility of protecting parties in their fights without doing this, is very' apparent in the present' case. We are informed of what is said to be the Recorder’s'charge by a stipillation;' but we can only infer "what the rule of' damages adopted was, and what wás thé' Recorder’s ruling upon the admission of affidavits in ojiposition to the confirmation of the report. Indeed, upon the "latter point the "parties are‘directly at variance.
It remains to be 'determined' whether we shall 'dismiss this appeal, order a further return, or' endeavor by an examination of the record as it now stands, to ascertain whether any error of’which the'appellant can justly complain satisfactorily appears." As the defects in the record are not
Amended section 38 of the charter provides that, “In assessing the damages and compensation * * * where only a portion or portions of a lot or lots are taken, the court may instruct the jury to, and in case of such instruction, the jury shall determine the benefits or enhanced value that will accrue from the improvements to the portion or portions not taken, and deduct the same from the damages or compensation they would otherwise award to the owner or owners.” A fair construction of this section will require the benefits or enhanced value to be assessed separately. The verdict should contain the finding of the jury upon the value of the land taken, and also upon the enhanced value of the remainder by means of the improvement; and their award of damages to the owner should be the diminution, if any, of the value of his estate thus ascertained. It is impossible that there should be a satisfactory review by the Recorder’s Court without such a finding; and what is quite as much to the purpose, it might well happen, if a general verdict upon the damages was sufficient, that twelve men would agree upon that, without being at all able to agree either upon the value of the land taken, or the enhanced value of the remainder; the two facts upon which the statute contemplates the jury are to unite. There is sound reason for requiring a separate report upon these points; for a more accurate and
I have already said, however, that the wording of the statute would seem to leave it with the Recorder to instruct the jury to deduct the benefits or not at his option. It is difficult to believe that the charter designed to leave an arbitrary power of this kind in the hands of any one; and if the charter is subject to this construction, a grave question might arise as to its. validity. Assuming, however, that it would be the duty of the Recorder to make a like charge in all cases where benefits' could be supposed to accrue, the question arises whether it appears from this record that such a charge was made in this case as would require the separate findings.
And upon this point I think the stipulation of the parties was competent. There is a manifest difference between stipulating as to what the rulings of a court were,- when
It appears, then, that under the charge of the Recorder it became the duty of , the jury to assess the valúe of the ... property taken, and the benefits or enhanced value of the ..remainder of the..premises separately. This has not been done, and the proceedings I think should be reversed. The question then, remains whether the case shall be remanded. Th.e statute. — Laios, 185^, p. 125, § 24 —authorizes us, if the reversal is for an error “which it is practicable for the v Recorder’s court or. jury to correct with ’ due regard to the public, interest and, rights of individuals,” to remand the .. case for .such, correction. The particular error here in ques.tion might,.perhaps, be corrected on a remand; but as we can, not pass upon the other questions raised upon this record, and the statute prohibits a second appeal, justice to all parties seems to require that the proceedings be altogether set aside. We can do this with the less reluctance inasmuch as the affidavits returned on the appeal, and which stand uncontradicted, make a strong showing against the. correctness of the report, and lead to the inference that perhaps the jury took into consideration supposed
. The appellant is owner of certain premises in Detroit, a portion, of which' has been taken for a public street, and the regularity of the proceedings is now brought up' oh appeal from the Recorder’s Court, where the jury’s verdict was confirmed.
The jury, by their finding, assess appellant’s damages at one thousand dollars, but do not show by what process they arrived at. that amount, nor whether it does or does .not include any deductions for supposed benefits. Until this appears in some way, unless the matter is made pertinent by the other proceedings-, it will be difficult and irregular to discuss any constitutional ípiéstion arising out of it.
The thirty- eighth section of chapter seven of the city charter contemplates that, where only part- of a lot of land ■is taken for a public improvement, the Recorder may direct the jury to determine the benefits or enhanced value that will accrue to the property not taken, arid deduct the amount from the damages or compensation they would otherwise award. If — as is, perhaps, the fair construction— this section leaves it to the Recorder to determine in what cases this discrimination is permissible — this determination, being judicial, must rest upon some existing or supposed rules or reasons, which ought to be announced, and the jury shoidd receive such general' directions and cautions as would be appropriate to guide them in coming to a right decision.
We have not before us the general or particular instructions which the Recorder gave, and-which the various sections of the charter contemplate he shall give upon the duties of the jury. The statute is express that the court shall instruct said jury as to their duties, and the" law
This does not inform us, even if we could act upon such information by stipulation, of the precise character and extent of the instructions given to the jury. It is plain enough that the stipulation does not embrace the entire charge. We can not, upon such a showing, proceed to review the correctness of the Recorder’s charge, because, if he were to report his own doings, we might learn, what now we can not know, how far his instructions may have gone in furnishing to the jury a rule of action. But I do not see any good reason for declining to receive this stipulation as evidence that this case was committed to the jury as one arising under the thirty - eighth section, and as one in which the question of benefits was to be considered. While we can not review the correctness of this ruling in the form in which it is presented, I see no reason for rejecting this admission of it for any other purpose.
The question then arises whether the finding of the jury complies with the law. Upon this we have no doubt. The statute, in plain terms, requires .the jury to '■''determine the benefits or enhanced value," and “ deduct the same from the damages or compensation they would otherwise award to the ovmer or owners."
This involves a double duty, upon each branch of which the whole jury must come to an agreement. They must first determine the damages “ they would otherwise award,” without reference to any benefits. They must then determine how far the remaining portion or portions of property will be benefitted or enhanced. The sum of these amounts estimated for advantages will then be deducted from the gross damages, by a simple computation. The language of the section will not admit of any other construction. And it
The statute provides that where the proceedings are reversed for errors which can be corrected, “with due regard to the public interests and rights of- individuals,” they shall be remanded to the Recorder’s Court, with directions that such errors be corrected. — Sec. 24. When the jury correct the errors, the verdict is to be confirmed, “without any further right of appeal."
If this case is remanded, without a review of the law questions (which are not before us in any proper shape for review), Jhe result will be that the jury will, by a new verdict, discriminate between damages and benefits, upon a„ view of the law which we can not, by means of
Although the statute is silent upon the means of perpetuating the law questions presented and decided, it distinctly authorizes us to review all the law points, and it provides that this shall be done on a return made by the clerk of the Recorder’s Court. He can certify nothing but that which is written. It follows, of necessity, that upon all questions which arise, and are disposed of, the parties have a right to require the written statement of the Recorder, to be placed on file. Whether this is put in the form of a bill of exceptions, or'case made, or otherwise, is not, perhaps, very material, but it must be drawn up in some reliable and authentic form, certified by the Recorder.
In the absence of such a statement, we are precluded from considering any of the important constitutional and statutory questions arising on the correctness of the supposed rulings of the Recorder.
I think the proceedings should be reversed, with costs.
The Court being thus equally divided upon the jurisdictional question, Cooley J., in order that the case might be disposed of, assented to the course suggested by Christiancy J. that a further return be made by the Recorder, showing the ruling and proceedings not now regularly appearing in the record.