184 Mich. 126 | Mich. | 1915
We are asked to grant an order requiring the court below to grant an order restraining the Detroit, Bay City & Western Railroad Company from taking possession of or performing any work upon, or disturbing the surface of, Argyle avenue, in the city of Sandusky, Mich., in the construction of a spur track, until the further order of the court.
From the pleadings it appears that the interested railroad company is building a line of road from Bay City to Port Huron, through the city of Sandusky, and when the original bill was filed was seeking opportunity to construct a certain spur or side track along Argyle avenue, connecting its main line with the plant of the Sandusky Tile & Brick Company. For this purpose it had obtained and accepted a franchise, in the form of an ordinance, passed January 26, 1914. It was charged in the bill, among other things, that it was proposing to construct the spur track, although the ordinance had not been submitted to a vote of the citizens of Sandusky. The answer sets up that the said ordinance was submitted to a vote of the citizens in August, 1914, at which election
In the court below the cause stands upon the original bill and answer, the supplemental bill demurred to by defendant railroad, and an order which refuses a restraining order, for the reasons:
“The supplemental bill in effect requires the court to review the proceedings of the probate court, a court of concurrent jurisdiction in condemnation proceedings.
“A jury in the probate court has found the necessity for taking the property, and this bill requires the court to- determine whether the proceedings are wholly void, or whether they are void only as to order of confirmation. An appeal has been taken, and I am of the opinion that the proper forum for stay is the Supreme Court. A remedy at law remains to complainants, and the finding, if necessary, although the proceedings may be void as to part or whole, deprives the bill of equities.
“Without prejudice.”
That equity will not take jurisdiction to restrain condemnation proceedings which are being conducted in the manner provided by the legislature, on the ground of irreparable injury and anticipated and probable danger to the public, is settled by Detroit, etc., R. Co. v. Commissioners, 91 Mich. 444 (52 N. W. 52), in which case a city proposed to extend a boulevard across a railroad company’s tracks. Such defenses, and indeed all defenses, to the proposed taking must be made in the condemnation proceedings. It is settled, too, that although irregularities in a condemnation proceeding which might be reviewed on appeal cannot be set up in an action of ejectment for the land taken, if the court had jurisdiction of the
And the disqualification of a juror in a condemnation proceeding will be ground for setting it aside on appeal. Michigan, etc., Ry. v. Barnes, 40 Mich. 383.
Affirming the rule that judgments and orders made by a disqualified judge are not voidable merely, but are void, we have held that objections to the qualifications of the judge not available in the trial court may be presented in this court. Bliss v. Caille Brothers Co., 149 Mich. 601 (113 N. W. 317, 12 Am. & Eng. Ann. Cas. 513).
The question is whether, in view of the settled law and the right of relators here to appeal from the order confirming the report of the jury, a court of equity ought to interfere by injunction to restrain the railroad company from presently taking advantage of its apparent right to enter upon the premises taken in the condemnation proceedings. I am of opinion that the controlling thing is the fact that, unless restrained, the railroad company may take the property, lay tracks, and accomplish, no award of damages to complainants having been made, what it undertook to accomplish in instituting the proceeding. Whether or not the probate judge was disqualified and the sheriff was disqualified are finally questions of fact, although by the demurrer the facts, for the purposes of this motion, are admitted. The equity court ought not to, and will not, review the condemnation proceeding, but if the proceeding is void the case is not different from the one made by the original bill, the railroad company has no right to enter upon the property, and the adequate remedy for complainants is an injunction. This court is not sufficiently advised concerning the appeal from the order con
The writ will issue.