Rifenburg v. City of Muskegon

| Mich. | Nov 21, 1890

Morse, J.

Plaintiff is, and for many years has been, the owner in fee of lot 1, block 9, of the city of Muskegon, according to Newell’s enlarged and corrected plat of that city. This lot is situated on the northwesterly corner of the block, and extends from Western avenue back to the center of the block, 125 feet. When the block was platted no provision was made for an alley running through the center either way. The plaintiff claims that for many years an alley has been opened through the block north and south. This claim is not admitted by the defendant.

Upon February 18, 1890, the common council of said city adopted a resolution declaring the running of an alley in an easterly and westerly direction through said block 9 a necessary public improvement, and in such resolution decided that it was necessary to take, for such purpose, “ the southerly 16 feet off the southerly end of lot 1 [block 9], owned by H. Y. Rifenburg.” Proceedings were thereupon taken to condemn the above-described land for such public use. The same was condemned, and the plaintiff awarded $1,600 as damages. He brings such proceedings by writ of certiorari to this Court for review. There are three questions raised by the plaintiff’s brief affecting the validity of this condemnation:

First, he insists that the notice of the time and place of making the application for the impaneling of the jury was not published for a sufficient length of time under the charter, which provides that notice shall be given “by publishing the same for three weeks in one of the newspapers of said city (if personal service on all the parties interested cannot be had), the first publication of which shall be at least thirty clays before the time fixed for the application.” The first publication of the notice in this case was on February 22, 1890, and the day of the application hearing was fixed on March 24, 1890, at 10 o’clock A. m. Excluding the day of the hearing of the application, and there would be but 29 days of the publication, also excluding the first day of the same.

It is claimed by the defendant that the point is covered by the case of Arnold v. Nye, 23 Mich. 286" court="Mich." date_filed="1871-07-12" href="https://app.midpage.ai/document/arnold-v-nye-6635276?utm_source=webapp" opinion_id="6635276">23 Mich. 286, 293. The question arose, in this case, upon a statute relating to service of notice upon the adverse party of the time and place of an application for an order to take the deposition of a witness. This decision was followed and approved in Eaton v. Peck, 26 Mich. 57. In both of these cases, although the statute provided that such notice should be served “at least ten clays before the making of such application,” it was held that the day of the making of the application could be included in the 10 days. But in all cases in this State where the condemnation of land has been involved, it has uniformly been held that both the day upon which the notice is served and the day of the meeting are excluded. In proceedings for the establishment of highways there must be 10 full days between the day of notice and of meeting. Platt v. Commissioner, 38 Mich. 247" court="Mich." date_filed="1878-01-29" href="https://app.midpage.ai/document/people-ex-rel-platt-v-highway-commissioner-7928813?utm_source=webapp" opinion_id="7928813">38 Mich. 247; Lane v. Commissioner, 39 Id. 736; Taylor v. Commissioner, Id 739; Powers’ Appeal, 29 Id. 504; Coquard v. Boehmer, 81 Id. 445; Cox v. Commissioner, 83 Id. 193. There should have been, in the case before us, 30 full days intervening between the first day of publication and the day of the application to impanel a jury. This lack of the requisite number of days renders the whole proceedings void for want of jurisdiction. It is not, therefore, necessary to notice the other objections.

The proceedings must be quashed, with costs to plaintiff.

The other Justices concurred.