State Highway Commissioner v. Hahn

156 N.W.2d 33, 380 Mich. 115, 1968 Mich. LEXIS 141

Opinions

Soubis, J.

Article 10, § 2, Constitution of 1963 provides that private property shall not be taken for public use without just compensation therefor. CL 1948, §213.171 (Stat Ann 1958 Rev §8.171) authorizes the State highway commissioner to take, by exercise of the power of eminent domain, certain private property for public use, including “gravel, rock, sand, dirt and any and all other materials that may be needed for the proper construction, improvement or maintenance of a highway.”

In 1963, acting pursuant to the cited statute, the highway commissioner asserted the right to enter upon 12-1/2 acres of the 23-acre Arthur Hahn farm in Alpena county; to occupy it with machinery and equipment; and to remove therefrom rock, sand, gravel, and earth in any quantity for highway construction purposes. The commissioner and the owners were unable to agree upon a mutually satisfactory price and condemnation proceedings were commenced.

Ultimately, after determination of necessity, occupation of the land and actual taking of sand therefrom, the Honorable Philip J. Glennie, Alpena county circuit judge, confirmed a report by commissioners appointed to determine the compensation to he paid the Hahns. The commissioners determined that the Hahns were entitled to receive compensation for the sand taken, valued as is and in place, and for the public’s temporary use of the land. On appeal by the State highway commission to the Court of Appeals, that Court affirmed. 4 Mich App 225. The issue presented by this appeal, on our grant of leave (378 Mich 743), is whether compensation payable to the Hahns should be limited to the difference between the value of the land affected before the taking of minerals therefrom and its value after the taking, or whether compensation should be determined by the value of the minerals taken, determined as is and in place.

In State Highway Commissioner v. Fegin (1966), 2 Mich App 698, the facts of which are remarkably similar to those of this case of Hahn,

Footnotes

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* the Court of Appeals decided that if the right to remove minerals is condemned, as was done here, the value of the minerals in place determines the compensation which must be paid the owner. We approve and expressly adopt the conclusion of the Court of Appeals in Fegin and the reasoning on which it is based.

Fegin did not decide whether in such cases the owner wonld be entitled, as well, to receive compensation for the public’s temporary occupancy of his land for the purpose of removing minerals and for any consequential damages thereto. While the commissioners in the case at bar awarded the Hahns compensation for the State’s temporary occupancy of their land, in addition to compensation for the minerals removed, no issue with reference thereto was presented to this Court for decision.

Affirmed. Appellees may tax their costs.

Dethmers, C. J., and Kelly, Black, T. M. Kava-NAGh, O’Hara, Adams, and Brennan, JJ., concurred with Souris, J.

See, also, State Highway Commissioner v. Green (1967), 5 Mich App 583.