174 Mich. 521 | Mich. | 1913
Plaintiffs brought suit in the circuit court for Wayne county against defendant in an action on the case in trespass for damages claimed to have been suffered through wrongfully digging and excavating in the street along the property owned by plaintiffs, thereby lowering the grade of said street from three to eight feet, against the protest of plaintiffs. To the declaration filed in the case defendant entered a plea of the general issue with notice that by an agreement with the city of Detroit for the separation of grades at Twentieth street and its railroad, near where plaintiff’s property was located, it conducted whatever operations were had in that locality, made the excavations and lowered the grade of Twentieth
Upon the material facts in this case there is no dispute between these parties. The only question to be determined is one of law, as appears from the following extract from the brief of plaintiffs:
“It is conceded by counsel for both parties hereto that the Michigan Central Railroad had no right to change the grade in Newark street in front of plaintiffs’ property except under the provisions of the statute. The entire issue therefore rests upon this court’s interpretation of that act.”
Under the statute in question, entitled “The separation of highway and railroad grades,” the following proceedings were taken by the city of Detroit: On October 2, 1906, the common council of the city of Detroit authorized
Several errors are assigned by defendant, but the issue before this court is so narrow that it will be necessary to consider only those errors which challenge the regularity of the proceedings taken under the statute to make this grade separation.
On the part of defendant, it is claimed that the foregoing proceedings under the law for the separation of highway and railroad grades, above enumerated, were a substantial compliance with its requirements, and conferred jurisdiction upon the recorder’s court of the city of Detroit to hear and determine the public necessity for such improvement and all questions of damages arising in any way
On the part of plaintiffs, it is contended that these proceedings by defendant were not a substantial compliance with the requirements of the act in question and the amendments thereof, and therefore defendant was a trespasser ab initio, liable to respond to plaintiffs in this action.
For convenience in following the changes made in the statute under discussion by the amendments of 1909, and a better understanding of their importance in the determination of this case, the original sections involved, as found in the Compiled Laws of 1897, are added as a footnote to this opinion, with italics or notations where the changes occur.
The grade separation law was amended by Act No. 268 of the Public Acts of 1909. The sections so amended, material to this case, which require consideration, are: Compiler’s section (4230) Sec. 2 was amended by eliminating the first proviso from said section which we have italicized. Compiler’s section (4239) Sec. 11 was amended in several respects, as follows: By striking out the italicized
“The filing of said petition, if done within one year after the making of such separation of grades, whether in any railroad or in any street or highway, and all other changes necessary to carry out the plan set forth in the resolution or certificate provided for in section three, shall be deemed a compliance with the provisions of this act requiring the filing of said petition for any work done or to be done in connection with any separation of grades as herein provided.”
The plaintiffs contend that the proceedings under the
This court has held that prior to the enactment of the amendment of 1909 it was the legislative intent, as expressed by the provisions of sections 3 and 11 of this statute, that the determination of the public necessity and the assessment of damages should be made before any work was done upon the grade separation. City of Detroit v. Railway, 156 Mich. 106, at page 117 (120 N. W. 600). By striking out the first proviso from section 2 the amendment of 1909 eliminated the following provision, “ Provided, that no such agreement shall be enforceable until the damages referred to in section three of this act are fixed by judicial proceedings or by compromise under said section three,” and adding to section 11 the paragraph quoted earlier in this opinion, which provides that the filing of the petition as commencement of judicial proceed
Both before and since these amendments were enacted the statute has been before this court for construction, to determine who would be entitled to damages, and the
The provision relied upon by plaintiffs, which requires a resolution of necessity to be passed by the authorities of the municipality, is contained in section 3, and reads:
“Such council * * * may pass a resolution * * * declaring it necessary for the public benefit to make such separation of grades in accordance with the plan prescribed by said agreement, which resolution * * * shall have attached thereto, as a part thereof, a copy of the said agreement.”
This is the section which remains as originally enacted. Considered in connection with the statute as it read before any amendments were enacted, it was in harmony with the clearly expressed legislative intent that judicial proceedings should be had and the public necessity and damages determined before any work to carry out the plan of separation of grades could be commenced. It provided that the resolution, plans, etc., should be filed with the city attorney or other officer, who was required to forthwith prepare and file the city’s petition, and institute judicial proceedings. It was within the legislative intent, explicitly expressed in the statute, that this resolution of necessity
Plaintiffs’ strongest argument in favor of their construction is that because section 3, which contains the provision relative to the resolution of necessity, was not amended, and the act as amended requiros the corporation counsel to attach to his petition a certified copy of this resolution, and that the petition should recite that it is filed in accordance with the plan set forth in said resolution, it becomes apparent that the legislative intent, by these repeated references to section 3, was to leave that section intact, and that only the filing of the petition and the proceedings subsequent thereto could be delayed for one year after the work was completed.
We do not agree with this contention for the reason that it is apparent that the immediate passage of the resolution of necessity is no longer required, and the provision relative to this resolution was not amended for the reason that it did not require amendment to adapt it to the changes in the statute.
These are not proceedings against abutting owners, strictly speaking, but the legislature has given power and authority to the municipality under the statute to separate
Plaintiffs cite decisions of this court in support of their contention that the resolution should have been passed before any work was done upon the separation of these grades. We do not think that these authorities are in point in the instant case for the reason that in those cases, in construing charters and statutes where the exercise of the right of eminent domain or the levy of taxes was involved, certain action by the authorities is held to be necessary as a condition precedent, while in the instant case the resolution of necessity was not the initial proceeding, as it could not be passed until after the agreement had been entered into with the railroad, providing for the separation of grades, and the part of the expenses thereof to be sustained by each had been agreed upon, and no exercise of the right of eminent domain is involved, nor the question of taking property without due process of law.
The damages awarded in this case are consequential, for which the legislature has provided a remedy. City of Detroit v. Railway, supra [163 Mich. 229 (128 N. W. 250) ]. And further, this resolution is not a determination by the common council of the public necessity for the improvement. It is a declaration by the common council which is provided for by statute to be served upon the law officer of the municipality as a preliminary to the institution of judicial proceedings to have such necessity de
It will not be necessary to discuss the remaining contention of plaintiffs that the resolution of necessity was not seasonably recorded. This record shows that these plaintiffs had notice of these judicial proceedings instituted by the city of Detroit under the statute, by service of process upon them therein, before this suit was begun. It follows that they cannot raise that question.
Our conclusion is that the proceedings on the part of the city in the suit commenced in the recorder’s court of the city of Detroit by petition, asking that a jury be summoned and impaneled to ascertain and determine the public necessity of said improvement, and to ascertain and determine the just compensation to be paid to the persons entitled thereto for damages caused by such separation of grades, were a substantial compliance with the requirements of said act and conferred upon said court jurisdiction to hear and determine the same; that the trial court erred in holding that the proceedings taken by the common council of the city of Detroit in the matter of the separation of this grade were irregular and void, and in overruling the motion of defendant to direct a verdict in its favor, for the reason that such court had no jurisdiction of the case.
The judgment of the circuit court is reversed, and no new trial will be granted. Proceedings are pending before a court of competent jurisdiction, in a forum and by virtue of a remedy provided by the statute, and plaintiffs may have all claims, if any they have, for damages caused by such grade separation adjudicated and determined according to the provisions of the statute.
Compiled Laws 1897.
(4230) Sec. 2. Such representative board or officer, as the case may be, may enter into an agreement with any railroad company or companies crossing any such street or highway providing for the separation of the grades at such crossing by carrying said street or highway either over or under said railroad at the point of intersection. Said agreement shall have attached thereto as a part thereof, an accurate profile and map of those portions of the street or highway and railroad or railroads of which the grade is to be changed according to the said agreement and a plan showing the details of construction necessary for the separation of the grades at such crossing. Said agreement shall also provide for paying the cost of making and maintaining such separation of the grades and for the division of the total expense thereof between the parties to such agreement and shall fix the amount of damages, if any, to be paid to said railroad company or companies as compensation for any injury to it or them resultingfrom said changes of grade, exclusive of the expense of construction and maintenance above provided for: Provided, That no such agreement shall be enforceable until the damages referred to in section 3 of this aet are fixed by judicial proceedings, or by compromise under said section three; Provided fur
(4281) Sec. 8. When the common council of any city shall have entered into any such agreement, it shall be authorized to settle or compromise 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 is to be changed according to the said agreement, and which may be damaged by the proposed change of grade, and with any street railroad company operating or interested in any line of street railway upon such part of such street or highway and which may be damaged thereby. When a common council, being a party to such agreement, cannot effect such settlement or compromise, or shall deem it inexpedient to attempt it, or whenever the representative board or officer of any county or township is a party to such agreement, such common council or representative
(4239) Seo. 11. Said prosecuting attorney or city attorney, as the case may be, shall forthwith prepare and file in the name of the county, township, or city in the court having jurisdiction of the proceedings, a petition signed by him in his official character, and duly verified by him, to which petition a certified copy of the resolution, or certificate of the representative board or officer referred to in section three, or of the report of said railroad and street crossing board, as the case may be, shall be annexed, which certified copy shall be prima facie evidence of the action taken by said board or officer and of the proceedings prior thereto and of the regularity thereof. The petition shall state that it is made and filed as commencement of judicial proceedings by the county, township, or city, as the case may be, in pursuance of this act for the purpose of separating the grades of the street or highway (amendment) and railroad or railroads at their intersection, designated by any proper descriptive words, in accordance with the plan set forth in said resolution, certificate or report, as the case may be, referring thereto, and for making just compensation to all persons sustain