Mansfield, Coldwater & Lake Michigan Railroad v. Clark , 1871 Mich. LEXIS 132 ( 1871 )

Cooley, J.

The difficulty with the description in the petition in this case, is that we are unable to determine from it whether that portion of the land described as being used and occupied as Railroad street was designed to be appropriated as Clark’s property or not. The manner in which it is referred to would rather lead to the inference that it was included in the petition, not because it was Clark’s property, but in order that his damages by reason of his ownership of premises fronting on the street might be assessed. . But if this were the purpose, the petition would be defective in not showing that he owns any such premises. The jury appear not to have fully understood the matter, but inasmuch as Clark “claimed” to own this piece of land, they assessed the damages they-thought him entitled to; but whether they gave the value of the land, or only the value of some doubtful claim they supposed him to be setting-up, we are not informed. It is not “claims” which are to be appropriated under the statute, but lands; and a party might be seriously wronged if his freehold might be taken on an award by the jury of a mere nominal compensation, because of their want of faith in the validity of his title. Questions of title to the land appropriated are not to be determined by this jury, but may come up in a proceeding to settle the right to the money awarded.

We think also that the verdict of the jury is defective in that it does not find the necessity for the taking of this property for the public use. What they say is that “ it is necessary that said real estate and property should be taken for the purposes of said company.” This is not the finding required by the constitution, either in form or substance. If the routes for railroads were prescribed by the legislature, the public necessity for their construction, and for the taking of the necessary land for the purpose, would be thereby determined; but when the associated projectors may select their own line, it is obviously possible that the company may have purposes in -which the public have no interest whatever. Indeed it is quite possible for a railroad to be as much a private way as any other, if the shortness of the line and the interests that can be accommodated by it are such only as preclude its supplying a public need. In such a case it was never contemplated by the constitution that land ■should be taken against the will of the owner, on a claim ■of public interest, 'for a road in which the public had no •concern." It would be contrary to the first principles of right to permit any seven or other number of men to lay out a road wherever they might choose, and then to appropriate lands for its purposes, without any finding by a disinterested tribunal that the road was needed.

The constitution provides that “when private property is taken for the use or benefit of the public, the necessity for using such property * * shall be determined by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record as shall be prescribed by law.” — Art. XVIII., § 2. Under this provision no use can be deemed public upon amere assumption by interested parties that it is so; and a finding that the taking is needful to the proposed enterprise is not the same as a finding that it is for the use or benefit of the public. The report of the jury or commissioners must distinctly cover this point in every case; and they cannot properly make one which will warrant the taking of the land, unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance. — See Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y., 137.

The objection to the confirmation of the report, that the jurors are not affirmatively shown to be freeholders, is not well taken. No challenge was interposed, nor has there been any showing that any of the jurors were disqualified. On the contrary, the claimant expressed himself satisfied with the jury when they were impaneled. The case of Peninsular R. R. Co. v. Howard, 20 Mich., 18, is not in point, for in that some of the persons summoned were shown to be disqualified, and the objection was taken as soon as the party became aware of the facts. Had there been no appearance of the claimant, or no facts operating as a waiver, the case would have been different. The proper course, however, when a jury is required of persons possessing a particular qualification, is for the order to direct the summoning of such persons. This is only an ordinary application of the general and very just rule, that in proceedings to take the property of the citizen against his will, all the conditions to the taking which have been prescribed by the law must affirmatively appear to have existed. —People v. Highway Comr’s of Nankin, 14 Mich., 528.

Although it was not necessary to a decision that we should do so, we have considered the whole case presented by this record, because of the frequency of these assessments, and the great public and private interests involved. The proceedings under review being void for want of a proper petition, they will be set aside, with costs.

Campbell, Oh. J., and Christiancy, J., concurred. Graves, J., did not sit in this case.