White Pine Hunting Club v. Schalkofski

Michigan Court of Appeals

White Pine Hunting Club v. Schalkofski

237 N.W.2d 223, 65 Mich. App. 147, 1975 Mich. App. LEXIS 944

Michigan Court of Appeals·Decided October 14, 1975·No. Docket 21624·Published·Cited by 12 cases

Opinions

McGregor, P. J.

Plaintiff appeals as of right from an August 30, 1974, judgment dismissing its declaratory judgment action which had alleged that MCLA 229.1; MSA 9.281 was unconstitutional.

The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land [149] over which the road is proposed to be constructed. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity for the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual construction of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.

The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was. We disagree.

We find MCLA 229.1 et seq.; MSA 9.281 et seq. to be repugnant to Const 1963, art 10, § 2.

In Shizas v Detroit, 333 Mich 44, 50; 52 NW2d 589 (1952), our Supreme Court expressed its approval of the following quotation from 18 Am Jur, Eminent Domain, § 34, pp 657, 658:

"It is to be noted that few, if any, of the state Constitutions in terms prohibit the taking of property by authority of the state for uses that are not public. The characteristic provision found in the Constitutions of the several states, and in that of the United States as well, is to the effect that property shall not be taken for the public use without just compensation. Nevertheless, while the courts have not been in agreement on the precise meaning of the term 'public use, ’ it has been held, without a single dissenting voice, that the state does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensation.”(Emphasis added.)

Finding no "public use” to support the statute before us, we therefore must conclude that the deletion of the constitutional sanction was fatal to its continued validity.

Reversed.

[150] N. J. Kaufman, J., concurred.

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McGregor, P. J.

Plaintiff appeals as of right from an August 30, 1974, judgment dismissing its declaratory judgment action which had alleged that MCLA 229.1; MSA 9.281 was unconstitutional.

The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land [149] over which the road is proposed to be constructed. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity for the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual construction of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.

The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was. We disagree.

We find MCLA 229.1 et seq.; MSA 9.281 et seq. to be repugnant to Const 1963, art 10, § 2.

In Shizas v Detroit, 333 Mich 44, 50; 52 NW2d 589 (1952), our Supreme Court expressed its approval of the following quotation from 18 Am Jur, Eminent Domain, § 34, pp 657, 658:

"It is to be noted that few, if any, of the state Constitutions in terms prohibit the taking of property by authority of the state for uses that are not public. The characteristic provision found in the Constitutions of the several states, and in that of the United States as well, is to the effect that property shall not be taken for the public use without just compensation. Nevertheless, while the courts have not been in agreement on the precise meaning of the term 'public use, ’ it has been held, without a single dissenting voice, that the state does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensation.”(Emphasis added.)

Finding no "public use” to support the statute before us, we therefore must conclude that the deletion of the constitutional sanction was fatal to its continued validity.

Reversed.

[150] N. J. Kaufman, J., concurred.

White Pine Hunting Club v. Schalkofski, 237 N.W.2d 223, 65 Mich. App. 147, 1975 Mich. App. LEXIS 944 (Mich. Ct. App. 1975).

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