*1 RECREATIONAL ACQUISITION OF LAND FOR re In PURPOSES. OF CARD. APPEAL Jury. Domain—Necessity—Question of Pact for Eminent 1. used, question proceedings In a is wherein condemnation sought to be for condemned solely to to and of fact be submitted determined jury (Const. 1908, 2). art. Purposes—Necessity 2. Same—Condemnation for Recreational City-Owned -t-Evidence—Other Lands. proceedings by In parcels condemnation condemn some occupied housing of land in purposes, a two-block area Which,together tax-delinquent acquired with land same area scavenger act, under the sale was be used recrea- purposes, testimony tional city already that owned a 26-acre proposed tract a block from the site had been set aside nursery, competent a tree and should been have ad- necessity (Act mitted on No. Pub. Acts ' amended). Reid, J., dissenting. Appeal City from Recorder’s Court for Detroit; Skillman (W. McKay), Submitted (Docket June 43,664.) 3, 1947. No. 2, Calendar No. Decided Rehearing October 14, 1947. Denied December 1947. by City
Petition of Detroit for condemnation of purposes. land for finding recreational Verdict fixing damages. Judgment amount ap- verdict, Defendant Enoch Card and others peal. granted. Reversed and new trial Land. -218 Dowling, Corporation Counsel, E. William Q. Corporation Ingalls, Counsel, Assistant Vance *2 plaintiff. for Martinez, A. for defendants.
Ramon (dissenting). appeal from a Reid, city judgment of for the of the recorder’s court confirming Detroit an award the condemnation of defendants’ for recreational purposes. city) city (a of The Detroit home-rule through corporation its coun- 9, 1945, on November Dowling, petition its in the sel, William E. filed city recorder’s of said for the condemnation court parcels provisions of 30 of land under the of title 8, chap. city of rela- of- charter Detroit 1, the the petition proceedings. The re- tive quested condemnation impanel a condemnation the court to among things, “whether it to determine necessary property private de- for to take the said petition, paragraph of this scribed fifth taking public; and benefit of the whether the the use pur- necessity private property is a the of such public improvement.” pose making The such pro- began May 15, 1946, on case trial of the during four weeks’ time. about ceeded property, 1946. On on June June visited by as claimed found 1946, city, to the $92,950 owners, an award made confirmed June verdict motion, a new trial was No court. order filed. city plaintiff common contended determined the of Detroit l¡.ad
council adequate and en providing much more neighborhood larged facilities for recreational 214' question, adequate that in order to create such necessary
recreational it facilities became to en large existing playground Higgenbotham of the public school two blocks to the in a east, already number of lots owned of Detroit parcels private and the 30 land involved in this provisions scavenger ease; that under the (evidently sale act * the lands embraced general area) same which had been ac quired by city through scavenger must be sale converted to a use, otherwise the said lands city, would revert a State, and be loss to the public necessity and it .therefore became to con private property demn the involved in this two- block area in order to consolidate all of the land into one recreational unit.
Defendants contended that the condemnation of private property necessary city not because the of Detroit owned of 26 acres land which it could ydthin park neighborhood convert into a the same pro- and at a distance one block southwest of the posed site; that the condemnation of the 30 parcels property of involved the eviction and ouster of 22 hardship and in families itself was a double neighborhood Negro view of the fact that the is a neighborhood Negro and families would have much,more problem finding housing of acute than they' if were families; white and that between as housing of andrecreation, needs the 22 families problem represented city a more acute for the of furnishing problem of Detroit than additional recreational facilities. testiniony by city offered shows statements city propose
officials to effect that the does not seq.).—Reporter. [*] See Act No. 3723-1 fub. et seq., Acts Stat. Ann. 1946 as amended Cum. (Comp. Supp. Laws § et 7.951 Supp. Land. of. eject shortage. during housing the tenants claims owners have Plaintiff accepted that two-thirds suppose awards. We would that the
their children additional lands taken would afford colored playground facilities. hinges crux of the case state that the proposition whether the deter-
on a of law, mining should consider the the availability city lands, of the 26 acres nursery in connection for a tree had set aside supervision of, the and under the of, with the work department and recreation, to to and streets availability the trial court refused of which testimony. admit support contention that of their
In permitted the availabil to consider should have been City ity Grand cite defendants tract, of the 26-acre particularly, Rapids Coit, Mich. 668, syllabus, third section only purpose proposed street “Where the prop-
improvement, private involving the grade, erty, a has an the landowner is to make easier question' right on to the verdict of the making grade, man- whether ner an easier necessity, proposed, rulings ais charge instructions which result in a which does give effect rule to this are erroneous.” appears ip it However, that the the Grand Rapids Case had incise other streets of 10 *4 cent, per grade parallel (Hall street) with the street sought which was to he laid out and-widened. The landowner' contended that those other streets could purpose serve the same- for which Hall street was sought vis., to be condemned, street facilities. How- desirability of cost of and ever, change grade was' also involved. In that case (p. 672): we said proposed only of the purpose purpose and “The necessary conclu- grade.
plan is It an is easier jury the, to be decided the real sion that grade, making of an easier was whether manner necessity.” public proposed, awas jury Rapids considered In Case the Grand sought condemning necessity land to be purpose traffic and ade- of street for the condemned quacy city already serv- held of other lands jury ing purpose. case at bar In the the same availability permitted to consider city already had been law- owned which lands the fully appropriated totally from different use
ato in the condemnation subserved that be case. Depot Co. Union Fort Street Plaintiffs cite 52): say (p. Backus, in which we 92 Mich. ‘‘ to the be administered the oath to The form of just public necessity is determine the upon inquiry'as compensation, to whether an to enter and not property to one which has been set may necessary be use, to that use is not
’ ” devoted to another. p. Plaintiffs further cite C. S. 887: objéction “The landowner can not raise the that condemning property there no his might because some other location be or made, some property obtained which would more suit- be , able.” _ , permit In the case at bar, to to consider availability require of the 26 acres would part availability as a of the consideration of the determine the for the continued purpose allocation of the 26-acre tract to the of a nursery. setting tree tract action
apart purpose nursery tree can *5 ok Land. subject jury not be made a of review the in the purpose jury bar, case at for which was not im- paneled. any purpose The was not sworn for determining nursery. for a tree scope pro- Such review be would outside ceeding acting. purpose in The which the was for which proceedings in lands were the condemnation purpose totally different from was a that already tract had for which' the lands in the 26-aere appropriated.
been
grounds
ap
claim,
one
their
peal',
judge
charge
that the trial
refused to
that condemnation
must
construed in
statutes
be
strictly against
favor of the landowner and
condem
against
“strictly
nation. The
'con
clause,
latter
incorporated in
demnation,” was not
defendants’
request
charge.
requested
to
instruction
only
(which
based
on the last sentence
we now ital
icize)
following excerpt
opinion
in
from our
Highway Commissioner,
Re State
may language. general control'their important finding terms of the act are the effect particular provision. The construction must he the landoivner.” favor Defendants were not entitled to have this last quoted, given judge’s charge sentence, above in qualification explanation. Moreoyer, without or controversy pertains real at the case bar to the testimony ruling introduction of on offered tes- timony, jury. a matter for the court requested inapt, The instruction would be as it pertains jury’s to a matter not for the considera- ground tion. find no new trial account We give request charge. refusal *6 declaratory request a we enter petitioner’s of claim of as the merits to statement province of the necessity. the invade would This are commissioners where commissioners, or Ontonagon Norton, 236 v. appointed. Railroad Co. § 2; art. 13, See, also, Const. 187, 190. Mich. University Regents People, use of of benefit Pommerening, Michigan, 391, 394. 250 Mich. v. Judge syllabus quote in Breisacher the from We Detroit, Mich. 223 Court Recorder’s follows: city Detroit, in con- charter of the “Under the proceedings a new trial must a motion for
demnation days after the rendition be within two made court, is allowed verdict unless further time two-day neglect party by and if a move to within period right loses for a new trial his to move ’’ may court restore it. thereafter any change Our attention has not to been directed two-day in the Detroit as to charter limita- why any nor do tion, we see reason defendants questioning should not be considered barred from They the verdict. did a not move for new trial days within the two after rendition of nor verdict an move for extension of time.
Granting a new trial under the circumstances would call for the exercise discretion. There is ground no or reason exercise such t-o discretion in this case. judgment confirming
The verdict and entered plaintiff. verdict be affirmed. Costs to should . crucial here whether Boyles, judge refusing allow land- circuit erred in to testimony (appellants) owners introduce before proceedings, jury in condemnation to show that op In re Land. the owner of other lands in the locality equally purpose same suitable (in purposes, this for recreational case, intended public playground). a establish case,
In this solely ques- to be condemned is tion of fact to be submitted to determined jury. (article [1908]) Constitution provides, frequently so and this Court has held. so Widening Avenue, See Roosevelt (Parcel 68), to Livernois Mich. and cases cited therein. *7 question any necessity
The whether there was for question, the to take the lands here for recre purposes, .city already ational if the locality equally owned other lands in the same suitable such purposes, proper question was a for the .determina jury. testimony by appel tion the offered bearing necessity, lants, as the vicinity, the effect other lands city, owned would accommodate the needs public equally competent well, was and should City Rapids have been admitted. Coit, Grand v. Village 149 668; Mich. Simons, Hamtramck v. 201 Mich. 458 . Depot Fort Street Union Backus, Co. v. Mich. upon by city (appellee) point.. relied is not in there was whether the Fort Street Depot Company Union could condemn the lands in question when was shown it it could condemn other purposes, lands for its then owned another, company. railroad already In the case, instant lands,”
owns “other might equally consider were sufficient for the recre- purposes sought, thereby negativing ational condemning appel- the lands of the lants. testimony heavily say how can This Court might have judge to admit refused trial
which weighed consider- were when the balance, necessity. It should have been question of ing the pass upon the merits we Nor do admitted. question any for con- there is whether question. That was demning questions conclusion, jury. this In view require consideration. by appellants do not raised subsequent are set confirmation and The verdict granted, of this with costs trial newa aside and appellants. Court Sharpe, J.', Butzel, Bushnell, C.
Carr, JJ., concurred with Dethmers, North, Boyles, BRAGMAN.
VanBROCKLIN *8 Negligence—Storekeepers—Aisles. 1. reasonably storekeeper duty provide safe aisles It is tlie for customers. op Weight Same—Storekeepers—Damp Evi- Floors—Great 2. ' dence. . . injuries damages plain- when In action for to ankle sustained storekeeper’s damp floor, tiff on defendant customer fell where dispute dampness amount of floor as to evidence showing persons slipped is no there had or found the subject liability bodily possessor A of land is harm caused visitors, only if, if, to business of he knew or should have known condition, Restatement, Torts, 343". see