199 N.W.2d 838 | Mich. Ct. App. | 1972
STATE HIGHWAY COMMISSION
v.
TAYLOR.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and George J. Platsis, Assistants Attorney General, for plaintiff.
Russell & Ward, for defendants.
*602 Before: R.B. BURNS, P.J., and LEVIN and TARGONSKI,[*] JJ.
Leave to appeal denied, 388 Mich. 776.
R.B. BURNS, P.J.
This is an action by the State Highway Commission for the condemnation of private property for highway purposes.
Defendants own 80 acres with present and advantageous access to Edgar Road. The state's interchange design, if carried out, would prevent access to Edgar Road due to an extension of a proposed entry ramp beyond defendants' property line. Through the testimony of an engineer, Paul C. Box, defendants introduced another design which they claim would accomplish the same result for the state without sacrificing safety, construction costs, or general layout. The plan would allow defendants the use of Edgar Road and would only require the far end of the highway ramp be moved 300 feet to the west. The defendants claim the commission abused its discretion by not utilizing defendants' plan. Van Kampen, an engineer for the State Highway Department, testified that in his opinion the plan submitted by Mr. Box was not as safe nor as feasible as the plan proposed by the state in view of proposed future developments.
Following a full evidentiary hearing the circuit court concluded that the plan and design of the highway department was acceptable and there was no abuse of discretion in the property taking or in the ramp design. Defendants appeal this decision.
The only questions presented are whether the trial court erred in holding that the taking was necessary and whether there was an abuse of discretion in using the state highway construction design.
*603 In Kalamazoo Road Commissioners v Dosca, 21 Mich. App. 546, 548 (1970), we held:
"A declaration of necessity by the condemning authority serves as prima facie evidence of the necessity and consequently makes it incumbent upon the property owner to show the contrary. City of Allegan v Vonasek, 261 Mich. 16 (1932)."
Judicial review is allowed where a person having a justiciable interest claims fraud or abuse of discretion. MCLA 213.368; MSA 8.261(8); Livingston County Road Commissioners v Herbst, 38 Mich. App. 150 (1972).
In Herbst we concluded that the condemning authority has a delegated broad discretion and as a general rule courts do not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. Judicial review is extremely narrow.
We hold under the facts of this case the highway commission did not abuse its discretion.
Affirmed. No costs, a public question.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
