In Re Board of Education of Detroit , 242 Mich. 658 ( 1928 )

The Detroit city board of education, acting under power of eminent domain, declared it necessary to enlarge the Vetal school site, and to take, for such purpose, certain private property. The circuit court for the county of Wayne was petitioned to summon and impanel a jury to pass upon the necessity of the taking and to fix the compensation. The jury found the necessity and awarded compensation. Believing the expense, so fixed for taking ten of the lots, not justified, the board filed a discontinuance of the proceeding against such lots, moved the court to allow the discontinuance and permit amendment of the petition and the verdict roll by excision of the rejected lots, and also filed objections to confirmation of the verdict as to such lots. The court denied the motions and confirmed the verdict. The board appealed and here contends that petitioner had a right to discontinue the proceeding against part, or all, of the property at any time before confirmation of the verdict and the court erred in denying such right.

The Detroit city board of education is a State agency, clothed with the power of eminent domain (Act No. 37, Pub. Acts 1925). As such State agency it possessed the power to launch and prosecute the proceeding in court but was without power to discontinue the same "after the confirmation of the verdict of the jury." I Comp. Laws 1915, § 370.

That statute, in providing that discontinuance may not be made after confirmation of the verdict is a clear recognition of the right to discontinue before confirmation of the verdict. The limitation in the statute relates to the time for the exercise of a right, and, until the limitation becomes operative by reason of the designated event, the right remains. This enables public agencies to safeguard the public interest by way of not being bound to accept property at a cost not warranted by public need.

The confirmation of the verdict as to the mentioned lots is vacated and the case remanded to the circuit with direction to permit the discontinuance. Petitioner will recover costs of this court against B.E. Taylor.

FEAD, C.J., and NORTH, FELLOWS, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.