Toledo, Ann Arbor & Grand Trunk Railway Co. v. Dunlap

47 Mich. 456

• Court: Michigan Supreme Court
• Decided: January 15, 1882
• Status: Published

Opinion

Campbell, J.

This is an appeal from proceedings to condemn lands. The property involved is the same included' in the proceedings set aside at the June term, 1881, in the case of Dunlap v. Toledo, Ann Arbor & Northeastern Railway Company 46 Mich. 190. The present company purports to be a consolidation of the last-named company with the Toledo & Ann Arbor Railroad Company.

It appears that immediately after the confirmation of the proceedings which were afterwards set aside by this court, the company took possession of Dunlap’s land and built its road across the part sought to be condemned. This was done in December, 1880, and led to a series of legal controversies not yet determined.

The present proceedings were begun on the 18th day of June, 1881, by the presentation of a petition to the circuit court for the county of Oakland, where a jury was drawn and subsequently rendered the verdict complained of. During the pendency of the proceedings and subsequently certain orders were made by the circuit court, to which reference will be made hereafter.

Some important questions arose which require a brief preliminary reference to the nature of these proceedings. The statute is evidently framed in accordance with the laws of some other states where the judicial power is not parcelled out as it is here; and some complications have been caused by this practice which introduce difficulties. We had occasion in the case of Michigan Air Line Railway v. Barnes 44 Mich. 222, to point out some of these difficulties. It is greatly to be regretted that this species of legislation has been so very carelessly framed.

In the present case some steps appear which could only have been taken by a court in the regular exercise of judicial power, while others belong to a different class of., functions entirely, and are governed by different considerations.

Under our Constitution such powers as are strictly judicial in their character can only be vested in certain courts which are named in the Constitution itself. The circuit courts— as courts — have such powers. The judges, as judges, out of court, do not possess them, and cannot be vested with them.

The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves and never have been regarded as judicial proceedings. Our Constitution allows them to be conducted by highway commissioners in some cases, and by specially-apjminted commissioners or juries of freeholders. The inquiry in this State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes what is not elsewhere included, an inquiry into the necessity of the proposed talcing for public purposes, which was never made by courts, but always heretofore by the Legislature or some unjudicial body of its creation. Had it not been for the specific provisions in our Constitution the State could have provided for these inquiries to be made by any medium it might select. People ex rel. Green v. Mich. Southern R. R. Co. 3 Mich. 496. Our present system is better calculated than the old one, if fairly applied, to secure the rights of land-owners. But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense.

As provided for under the railroad laws, there are certain proceedings in court to select a jury, and subsequent proceedings to determine whether the action of the jury should be sustained. Beyond this the courts have no part in the matter, and with the exception of some special matters to be referred to hereafter, no difficulties should have arisen to confound these functions. But it is manifest they have been confounded to some extent here, and the question may arise how far such confusion may have caused mischief which we can redress.

It may be said, in brief that if a jury has been summoned under proper circumstances, has conducted its inquiries legally, and with due regard to private rights, and has reached a legitimate conclusion as to the necessity of the condemnation, and the compensation, the appropriation of the land, upon payment of that compensation, will be lawful, and will not be affected by collateral action by the judge or court, which may be unlawful. This distinction between the different tribunals is essential.

The objections taken may be divided into two classes— the one relating to the sufficiency of the condemnation, and the second to the action of the court or judge independent of the inquest. Kef eren ce will first be made to the latter.

These are — first, action taken by the circuit court to restrain legal proceedings; second, action concerning certain moneys; and thi/rd, action requiring the land-owner to pay costs.

On the 25th of July, 1881, the circuit judge upon an ex parte application, which seems to have been presented and treated as a part of this proceeding, made an order restraining a suit at law between Dunlap and several private parties as well as the railway company, for trespass, — a chancery suit involving a bill and cross-bill between the company and Dunlap, and between Dunlap and the company and two private persons, and a proceeding in favor of Erwin D. Brooks before a circuit court commissioner for forcible entry and detainer. The same order authorized the company to draw certain money from a bank, in which we do not see that appellants here had any special concern.

Without stopping to consider the very serious question whether a judge can be authorized, in a proceeding which is not a suit in court, to interfere with regular legal proceedings pending in the ordinary course of justice, it is sufficient to say that ex parte action for that purpose, where the parties interested have neither notice beforehand nor any regular means of relief against it, cannot be sustained on any principle whatever. We do not think any such summary and illegal proceeding was intended by the Legislature. It is very questionable how far the statute contemplates any such interference except through the medium of a distinct legal proceeding, but it does not authorize any action except by the court, and it could not lawfully authorize it without a hearing, and was not intended to do so.

Upon the matter of costs there is also reason to regard it as a serious question whether — inasmuch as the necessity of taking as well as the amount of compensation must be determined before land can be taken — a land-owner can under any circumstances be compelled to lose his land without full compensation. He cannot be compelled to determine at his peril whether a jury will regard the land as necessary for public use, and he cannot be in fault for refusing a tender when he can have no assurance that the proposed improvement will be sanctioned. But the statute is fatally defective, if such an infliction could be imposed, because it provides no means and no tribunal for determining the question of tender. It is not within the constitutional functions of the jury, and the judge, whether present or absent, cannot pass upon such a fact himself, and bind the party by it. The law has provided no method of inquiry for deciding this question legally.

In regard to the deposite of money in bank, the statute has no provision which would compel the land-owner to take the risk of any such deposit, or deprive him of his rights until he is paid. We do not regard him therefore as injured by the mere deposite of the money.

The remaining questions relate to the action of the jury and the orders which provided for their appointment.

It is claimed that there is no authority to take such steps in favor of a consolidated company, consisting in part of a foreign corporation, and that the railroad law itself is invalid for a defective title.

The act is entitled “An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management, and to fix the duties and liabilities of all railroad and other corporations owning or operating any railroad in this State.”

It does not appear to us that this title covers more than one object. It is to bring together the legislation concerning the creation and management of railroads. It may be that there are some roads which are exempt from more or less of its provisions, and that as to them it could not be enforced. But this would be for other reasons, and not because the title is double.

Neither do we think the consolidation presents any difficulty. The new organization, as such, is undoubtedly a Michigan corporation. How far as such it could act abroad does not matter here. It possesses the powers belonging to that particular corporation which had authority before the union to institute proceedings to reach this particular land, and this is all that is now, under inquiry. We have no occasion to look further.

It also appears that James M. Dunlap is the owner in fee of the lands sought to be taken, and that the rights of the other parties are a contingent dower interest,- and a tenancy at will. Without obtaining Dunlap’s authority the company could have had no rights of control over the land by any license or grant from the rest. This being so, a failure to agree with him was as complete a bar to possession and enjoyment for their railroad, as a refusal of all three to agree. The statute contemplates that these proceedings may be had if the land cannot be obtained by treaty, and here it was shown it could not be.

We are of opinion that no error was committed in excluding from the compensation allowed to Dunlap the value of the railroad track laid upon the land. We think the case cannot be distinguished from Morgan's Appeal 39 Mich. 675. The railroad company, whether rightfully or wrongfully, laid this track while in possession and for purposes entirely distinct from any use of the land as an isolated parcel. It would be absurd to apply to land so used, and to a railway track laid on it, the technical rules which apply in, some other cases to structures inseparably attached to the freehold. Whatever rule might apply in case of abandonment, it is clear that this superstructure was never designed to be incorporated with the soil except for purposes attending the possession; and in a proceeding to obtain a legal and permanent right to occupy the land for this very purpose, there would be no sense in compelling them to buy their own property. Whatever right of redress, if any, Dunlap may have for the tortious occupancy previous to these proceedings, or whatever right of property he might have in case the company abandoned the road entirely and left the track untouched, we think that so long as it is in possession and legal measures are proceeding to secure a right to retain it there, this structure belongs to the company, whether intruders or not.

The remaining errors assigned refer to various rulings and testimony bearing upon the question of public necessity. Some of them have been faised on what is a mistaken notion of the character of these proceedings. The circuit judge attended the sittings of the jury, and admitted or excluded testimony, and charged the jury precisely as on a trial.

The judge formed no part of this special tribunal. The statute indeed allows the judge to “ attend said jury, to decide questions of law and administer oaths to witnesses.” § 21, art. 2. But the same statute which allows this allows him to designate a circuit court commissioner for the same purpose, and also allows the jury to proceed without either. Whatever the language of this statute literally construed may mean, it is very clear that any such functions must at most be advisory. The jury will undoubtedly be regarded as accepting and doing what they permit to be done. But in all such cases the Constitution as well as the principles of the common law, makes them judges of law and fact. Chamberlin v. Brown 2 Doug. (Mich.) 120. Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, quite as much as the testimony of witnesses to matters of opinion. And while an appellate court is bound in such cases to set aside proceedings which appear to be based on false principles, it cannot properly deal with rulings as if they were excepted to on a common law trial or dispose of the controversy on merely technical notions. Chamberlin v. Brown 2 Doug. 120; Michigan Air-line R. R. Co. v. Barnes 44 Mich. 222.

In the case before us the jury have in proper form decided the improvement to be one of public necessity. They had ■a considerable amount of testimony before them bearing on that question, and it was strongly contested. While the language of the charge of the judge is certainly ambiguous .■and open to criticism, yet it appears distinctly that the jury •regarded not merely the necessity of the land if the road should be laid out, but also the importance of the road itself. We cannot say from an inspection of the record that there is any prevailing reason for holding that the jury were '.misled in their conclusions. .

Neither do we discover any sufficient reason for holding there has been anything out of the way in the estimate of ■damages. There is some ground for questioning their entire adequacy, but the jury saw the land and heard the witnesses; ■and as the case stands we cannot disturb their finding on •this point. That objection is not raised on the record, and ■does not appear to have come up at all except as to the materials of the superstructure.

There is nothing however in the record which in our •opinion entitled the company to costs, and we think costs ■should be awarded to Dunlap. The proceedings below so .far as they relate to the findings of the jury must be affirmed. 'The remaining orders and proceedings are unauthorized and must be reversed, with costs of this court and of the proceedings below to the appellant Dunlap.

The other Justices concurred.