State Highway Commissioner v. McCarthy

182 N.W.2d 747, 26 Mich. App. 500, 1970 Mich. App. LEXIS 1478
CourtMichigan Court of Appeals
DecidedSeptember 29, 1970
DocketDocket No. 6,789
StatusPublished
Cited by3 cases

This text of 182 N.W.2d 747 (State Highway Commissioner v. McCarthy) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Highway Commissioner v. McCarthy, 182 N.W.2d 747, 26 Mich. App. 500, 1970 Mich. App. LEXIS 1478 (Mich. Ct. App. 1970).

Opinion

Holbrook, P. J.

The State Highway Commissioner, plaintiff, on June 10, 1966, filed a petition for condemnation of land owned by defendants, Kenneth McCarthy and Vivian McCarthy, husband and wife, and other lands in Bay County, for the construction of highway I-75.1 Defendants’ land, the subject of the taking and this appeal, comprised 10.7 acres in fee, of which 1.4 acres was subject to an existing right-of-way easement. The estates to be taken also included all rights of ingress and egress (limited access) between the highway to be constructed and part of defendants’ property, which was not condemned, described as the northeast quarter of the northeast quarter of section 17, town 15 north, range 4 east. The court held a pre-trial hearing on March 13, 1967, and submitted the names of several prospective commissioners to both parties for their objections, if any. The court, on July 13, 1967, selected from the list three persons who had not been objected to by the parties and appointed them as commissioners.

Defendants’ principal attorney passed away and the case was delayed. Present counsel for defendants filed an appearance March 7,1968, and a second pretrial hearing was held May 20, 1968. The case was tried in August 1968, and the sum of $7,102.50 was awarded by the commissioners to defendants. The award was confirmed and defendants have appealed. They claim (1) that the commissioners were biased; (2) that there was error in the court’s instructions to the commissioners; (3) that the award [503]*503was inadequate; (4) that the court erred in certain rulings on the evidence.

I

Defendants claim that the commissioners did not constitute an impartial tribunal based on five reasons, vis: (1) because of statements alleged to have been made by two of the commissioners. We have read what they were alleged to have stated and, even assuming that the commissioners made these statements which we do not repeat here for valid reasons, we conclude that such statements are not evidence of any prejudice against defendants. (2) Because one of the commissioners was acquainted with one of the defendants. This fact alone does not indicate any bias or prejudice against defendants. Rice v. Winkelman Brothers Apparel, Inc. (1968), 13 Mich App 281. (3) Because one of the commissioners was not a freeholder. Even if true, the objection after trial comes too late. Counsel had many months to object to the qualifications of any of the commissioners. No objections were made until after the trial. State Highway Commissioner v. Breisacher (1925), 231 Mich 317. (4) Because one of the commissioners was a law partner of a state legislator. Defendants cite the opinion of the attorney general.2 It states that members of the legislature and the county board of supervisors cannot sit as commissioners in condemnation cases because of a conflict of interest. We rule that this is not applicable to law partners of state legislators and, further, this fact was known by counsel for defendants some time before the case was tried and no objections were made. Any objections that defendants had, therefore, were waived. State High[504]*504way Commissioner v. Breisacher, supra. (5) The commissioners independently sought out evidence. This last assertion is not supported by the record and we are constrained to rule that the commissioners acted properly.

II

Defendants assert that the court gave six erroneous and prejudicial instructions to the commissioners. Defendants label these instructions improper, inappropriate, confusing, and loaded. Counsel does not give any reasons why they were improper, inappropriate, confusing, and loaded nor does he cite any authority for his position. The mere statement of a position without argument or citation of authority is insufficient to bring an issue before an appellate court. Mitcham v. City of Detroit (1959), 355 Mich 182; Arrand v. Graham (1941), 297 Mich 559; and Dolby v. State Highway Commissioner (1938), 283 Mich 609. Defendants assert that the trial court erred in not giving five proposed instructions that their counsel proffered. The court’s instructions show that the proffered instructions were covered substantially in the court’s own words and, therefore, it was not error to fail to give the proposed instructions. Ferries v. Copco Steel & Engineering Company (1955), 344 Mich 345. We further point out that defendants did not comply with GCR 1963, 516.2 which provides:

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection.”

This rule we have previously determined is applicable to condemnation cases. State Highway [505]*505Commissioner v. Snell (1967), 8 Mich App 299, 319. It is clear from the record that counsel was not specific in his objections, and thus, he has not preserved the claimed error for review on appeal. Snyder v. New York Central Transport Company (1966), 4 Mich App 38.

Ill

Defendants contend that the award of the commissioners was inadequate, that it was based on false principles, and that substantial justice was not done. Defendants’ contentions are consonant with their argument to the commissioners that they were entitled to receive compensation in accord with their expert’s appraisal of the damage, viz: $13,568. They were properly allowed to go to the commissioners on this premise. However, such an appraisal was not binding on the commissioners. The frontage value of defendants’ property being taken was submitted to the commissioners in the instruction:

“Now, of course, a given parcel may have a highest and best use as to a portion of that parcel for one purpose and another highest and best use for another part. This is where we come along to this frontage argument as to whether or not it should be used for residential or for farming.”

The appraisers differed as to the highest and best use of the property and they differed as to the damage suffered by the defendants. The claimed loss incurred because of the termination of defendants’ dairy business was also submitted to the commissioners. As to this claimed error, the award was within the range of the testimony, and should not be reversed on appeal. State Highway Commissioner v. Green (1967), 5 Mich App 583.

[506]*506IY

Lastly, the defendants refer to some 20 rulings by the trial court claimed to be erroneous and prejudicial. The first reference deals with clearing up the correct amount of frontage left of defendants’ land whereby access to Parish Road was available after the taking. It was properly cleared up by the testimony to be 210 feet. There was no error.

The second claimed error has to do with the cross-examination of Mr. Charles Lahaie, the expert witness for the State. He appraised the defendant’s property by using one of the three proper methods, that of comparable sales and market data approach. He testified that he used a number of comparables in coming to his appraisal of the value of the taking to be $4,400 plus $130.51 for cure (tile damage) for a total of $4,530.51. Defendants’ counsel asked Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Delta Township v. Eyde
198 N.W.2d 918 (Michigan Court of Appeals, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
182 N.W.2d 747, 26 Mich. App. 500, 1970 Mich. App. LEXIS 1478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-commissioner-v-mccarthy-michctapp-1970.