Grand Rapids, Newaygo & Lake Shore Railroad v. Alley

34 Mich. 18, 1876 Mich. LEXIS 93

Opinion

Campbell, J:

In this case a petition to the probate court for the condemnation of lands set forth that there was necessity for condemning, for the purposes of the petitioner’s railroad, no lands in Newaygo county except the undivided half of certain lands described, and that respondents were the only persons interested in such undivided half. The petition was referred to a jury, who found the necessity and condemned the interest in question.

During the hearing an amendment was allowed which set forth that the land in which respondent owned an undivided half was owned by them and George Alley and George M. Smith equally, as tenants in common holding each one-fourth interest, and that proceedings had been had under the railroad law to condemn the interest of George Alley and George M. Smith, which had been confirmed, and that further separate proceedings were pending against the interest of Janies Alley, and that the present proceedings were instituted to reach only the interest of Charles G. Alley.

This was practically a dismissal as to Janies Alley, and was in. direct violation- of the statute which requires all parties in interest to be brought in. This question is disposed of in the appeal of George Alley and George M. Smith, supra p. 16, and need not be further discussed. A partial condemnation of an undivided interest can furnish no benefit to a railroad in building its track.

The remaining questions are not important where the want of jurisdiction is manifest.

The proceedings must bo quashed, with costs of both courts.

The other Justices concurred.