In Re Widening of Bagley Avenue , 248 Mich. 1 ( 1929 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This case involves the use by the city of Detroit of the power of eminent domain to condemn lands and buildings for widening Bagley avenue from Cass avenue to Michigan avenue. There was verdict of necessity and an appraisal of the damages to or for each parcel to be taken. Respondents appeal.

Necessity for taking and the ascertainment of the just compensation to be made may be determined and fixed either by a jury of freeholders of the vicinage or by commissioners. Michigan Constitution, Art. 13, § 2. The city elected to have a jury called. Such jury impaneled in proceedings of this kind is a constitutional tribunal, a jury of special inquest. The Constitution does not vest the power in a court or in a judge and jury, but in a jury of 12 freeholders of the vicinage. The proceedings are not according to the course of the common law — not in the nature of a lawsuit. The function of the judge is to set in motion the proceedings by organizing the jury and act in an advisory capacity during its deliberations. The jury may listen to the opinions of witnesses, their estimates of value, and their methods of arriving at the conclusions expressed, but the jury is not bound by the testimony alone; they are to exercise their judgment based not only upon the testimony but their own knowledge gained from a view of the premises. They are not to be interfered with or dictated to by the judge. The jury are judges both of the law and facts. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456; Port Huron, etc., R. Co. v.Voorheis, 50 Mich. 506; Grand Rapids, etc., R. Co. v. Chesebro,74 Mich. 466.

"In condemnation proceedings, the trial judge has not the power of control over the proceedings and verdicts possessed by the trial judge in common-law actions. He may, of course, confirm or set aside the award reported to him, but he cannot give binding instructions, and the jury is the judge of both law and facts." In re Owen and Memorial Parks, 244 Mich. 377.

Many technical rules have been promulgated for determining value, none of which are important. The determination of value is not a matter of formulas or artificial rules, but of sound judgment and discretion based upon a consideration of all the relevant facts in a particular case. Simpson v. Shepard,230 U.S. 352 (33 Sup. Ct. 729, 48 L.R.A. [N. S.] 1151, Ann. Cas. 1916 A, 18). It is, in the final analysis, only the effect of the relative human desire for compared objects expressed in terms of a common denominator. InternationalHarvester Co. v. Kentucky, 234 U.S. 216; Block v. Hirsh,256 U.S. 135 (41 Sup. Ct. 458, 16 A.L.R. 165).

The compensation to be made is to be just. It is the fair cash market value of the property to be taken. The compensation estimated is to be paid in the legal currency of the country. Damages are to be awarded without consideration of the question of benefits to the lands not taken. Port Huron, etc., R. Co. v.Voorheis, supra. Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred. In the case of land actually taken, just compensation awards its value, or the amount which the value of the property from which it is taken is depreciated. Grand Rapids, etc., R. Co. v. Heisel,47 Mich. 393. Where the whole of a parcel of land is taken, the compensation to be made is the fair value of the land so taken. Where only part of a parcel is taken, just compensation is to be determined by the amount which the value of the parcel from which it is taken is diminished. The value of the part actually taken is allowed as direct compensation, but the decreased value of the residue or parcel on account of the use made of the land taken is also allowable as compensation. Port Huron,etc., R. Co. v. Voorheis, supra; Fitzsimons Galvin, Inc., v.Rogers, 243 Mich. 649; Johnstone v. Railway Co., 245 Mich. 65. Where only a part of a building is taken, if the remaining portion is of great value and there can be advantageous reconstruction, rearrangement, and new adjustment, then the cost of altering the building and all consequential damages because of such alteration, plus the value of the part taken, furnishes the rule for measuring the compensation to be awarded. If what remains after a part is taken is worthless, the jury should allow the whole value of the building. If not, they should consider what may be done with the remainder and the cost of doing it. City of Detroit v.Loula, 227 Mich. 189. A part of the Vinton Hotel property is to be taken. The judge advised the jury in relation thereto that:

"If the respondent is put to the necessity of reconstructing the remaining portion of his building, there is a presumption that he will do it according to law, and you will allow him as just compensation a sum of money which will permit him to reconstruct his building according to law, and all consequential damages because of such alteration, in addition to being paid for the value of the part of his property taken."

The defendant's rights were fully protected.

The judge advised the jury generally they must value the property as it now is for what it is worth before the taking. They must not value the property upon any assumption of facts that do not exist; they could not consider benefits to the remaining property of the respondents in this proceeding; the testimony of any witness based on or including such benefit or advantage and charging any benefit or advantage against respondent's remaining property, in order to reduce damages, was incompetent; the land or other property taken was to be valued and paid for on the basis of its best and highest use in every instance; their award must not exceed the highest nor be less than the lowest figure in the testimony; all the capabilities of the property and all the uses to which it might be applied or for which it was adapted were to be considered. The charge on the whole was at least as favorable as respondents were entitled to.

Upon a former trial one Ely was sworn as a witness for petitioner, examined and cross-examined, and his testimony recorded or transcribed. On this trial respondents offered to prove such testimony as an admission of petitioner against interest. The admissions of a party of record against interest may be proven against him as may be the admissions of his agents when acting within the scope of their authority; but the city as petitioner was not bound on this trial by the admissions of this witness made in the course of his testimony on a former trial. If the facts testified to by the witness on the former trial were deemed important by respondents, subpœna was available to bring such witness before the jury to give his testimony. There was no necessity of resorting to the proof of his prior admissions where the witness himself might be produced and examined. Respondents cannot complain because they did not subpœna, call, and examine this witness.

We find no error in the proceedings justifying a reversal of the same, and the finding of necessity and the several awards of compensation are affirmed.

NORTH, C.J., and FEAD, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred. The late Justice FELLOWS took no part in this decision.