Thom v. State Highway Commissioner , 376 Mich. 608 ( 1965 )

376 Mich. 608 (1965) 138 N.W.2d 322

THOM
v.
STATE HIGHWAY COMMISSIONER.

Calendar No. 12, Docket No. 50,510.

Supreme Court of Michigan.

Decided December 7, 1965.

Atkins & Drillock, for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Louis J. Caruso and Gay S. Hardy, Assistant Attorneys General, for defendants.

SOURIS, J.

The organic laws of the State of Michigan always have provided that private property may not be taken for public use without due process of law and compensation.^[1] One crucial question involved in the implementation of such organic provisions has been, when is property actually "taken". This Court has been committed to a liberal interpretation of "taking", as indicated by this passage from Pearsall v. Eaton County Board of Supervisors (1889), 74 Mich. 558, 561, 562 (4 LRA 193):

"The term ``taking' should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only; but it should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto. In either of these cases it is a taking within the meaning of the provision of the Constitution.

"``A partial destruction or diminution in value is a taking.' Mills, Eminent Domain [2d ed], § 30; Pumpelly v. Green Bay Co., 13 Wall [(80 US) 166] 177; Cushman v. Smith, 34 Me 247; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.

"If the public take any action which becomes necessary to subserve public use, and valuable rights of an individual are thereby interfered with, and damaged or destroyed, he is entitled to the compensation which the Constitution gives therefore, and such damage or destruction must be regarded as a ``taking.'"

There need not be even a physical invasion of property to constitute a taking:

"That there may be a taking of property without actual physical invasion of it has often been held. In Allen v. City of Detroit, 167 Mich [464], 473 (36 LRA [NS] 890), Justice STEERE, speaking for the court, said:

"``Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor. * * * The contention that the city, under its general police power, may ignore this building restriction, and erect its fire engine house within the restricted district, because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power and becomes an act of eminent domain governed by the appropriate condemnation laws.'

"See, also, Schneider v. City of Detroit, 72 Mich. 240 (2 LRA 54).

"In Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (15 LRA [NS] 49), the city without physical invasion of plaintiff's property built a bridge in the street and constructed approaches thereto, seriously interfering with plaintiff's access to the street from the adjacent property and it was said by this court:

"``Plaintiff's damage flows from the construction of an embankment by the city which has the effect to destroy, to some extent, her property. Within repeated decisions of this court, there has been a "taking" of plaintiff's property, and, if we could consider the purpose of the taking a "public purpose," plaintiff was entitled, by the terms of defendant's charter, to compensation. The city has taken, without proceedings to determine either necessity or resulting damage.

"``The term "taking" should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only, but should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or the owner is excluded from its enjoyment, or from any of its appurtenances.' Pearsall v. Board of Sup'rs of Eaton Co., 74 Mich. 558 (4 LRA 143); (quoting from the syllabus)." City of Big Rapids v. Big Rapids Furniture Manfg. Co. (1920), 210 Mich. 158, 174, 175.

As is evident from the passage just cited, some of the cases in which the definition of "taking" has been considered have involved injury caused the owner of property abutting upon a street by a change in the grade of the street. In a series of cases, beginning with Schneider v. City of Detroit (1888), 72 Mich. 240 (2 LRA 54), the Court held that the general power to change the grade of a street does not include, for example, raising the street grade as an approach to a viaduct over a railway in such fashion that there is a concomitant injury to property abutting upon the street. Such a change in grade, the Court held, should be accomplished by means of the power of eminent domain, so that abutting owners, whose property was diminished in value and so "appropriated" by the grade change, could obtain compensation.

Thus in Phelps v. City of Detroit (1899), 120 Mich. 447, 448, the city "erected a bridge over the Michigan Central Railroad tracks, which cross Fourteenth avenue adjoining the plaintiff's premises. This bridge takes up the entire width of the street, except about five feet on each side, thus depriving the property of the benefits of the street as a street. The approaches to the bridge, which are immediately in front of the plaintiff's premises, are built of stone, iron, and earth, and vary from 10 to 40 feet in height."

In upholding plaintiff's right to compensation, the Court quoted approvingly this, and other, language of Mr. Justice CHAMPLIN in Schneider v. City of Detroit, supra (p 449):

"``The exercise of the power to erect such bridges in streets would necessarily involve quite an amount of abutting property in damage, and some entirely in destruction, for any beneficial use or enjoyment. Such consequences cannot be brought under the general power to grade streets, but must be provided for under the power of eminent domain. Private property cannot be appropriated for the public use without the necessity therefor is first determined by a jury under our Constitution, and compensation awarded and paid. Doubtless the method of crossing a railroad by a viaduct is safer than a crossing at grade, and upon streets which are recognized thoroughfares, over which the public are almost constantly passing, such bridges would greatly conduce to the public safety and convenience, and it would be wise for the legislature to confer upon municipalities the authority to erect such structures in the streets, and condemn private property for that purpose, if necessary; but, until this is done by special enactment, I do not think it can be done under the power now conferred by the general authority to grade, make, repair, and improve streets.'" (Emphasis added.)

In Ranson v. City of Sault Ste. Marie (1906), 143 Mich. 661, the grade of the street in front of plaintiff's dwelling was raised to accommodate approaches to a bridge over a canal. In affirming a judgment of damages for plaintiff, the Court said (p 670):

"The general power over streets, their grades and maintenance, and over bridges and the manner in which they shall be constructed, which is usually possessed by cities and is possessed by defendant city, must be considered with reference to, and is limited by, the purposes and uses of public ways. Plaintiff's damage flows from the construction of an embankment by the city which has the effect to destroy, to some extent, her property. Within repeated decisions of this Court, there has been a ``taking' of plaintiff's property, and, if we could consider the purpose of the taking a ``public purpose,' plaintiff was entitled, by the terms of defendant's charter, to compensation. The city has taken, without proceedings to determine either necessity or resulting damage. So that whether we regard the action of the defendant in erecting the bridge as within or outside of the charter powers, there has been a tortious taking of property." (Emphasis added.)

The fair purport of the decisions just discussed is this: if a governmental unit, which has the undoubted power to change the grade of a public road for the public benefit, demonstrably injures the property of an abutting owner by so doing, that owner's property has been to that extent "appropriated" or "taken", in the constitutional sense, and if proceedings have not been had to condemn the property under the eminent domain power, the owner is entitled to seek damages in a court proceeding.

And yet, there are cases in Michigan which seem to hold precisely the opposite. The earliest of these appears to the City of Pontiac v. Carter (1875), 32 Mich. 164. In Carter, without so much as a reference to the then pertinent constitutional provision found in the Constitution of 1850, art 18, § 2, the Court, through Mr. Justice COOLEY, held that one injured by a change in grade of an abutting street had no cause of action for damages.^[2] Several reasons were advanced for this decision. First, the Court raised a sort of in terrorem argument. For example:

"Nor, if he can maintain a suit [for damages caused by the change in grade of an abutting street], is it easy to assign reasons for denying the like remedy to one whose property is diminished in value by * * * permitting a public prison to be located nearer to him." 32 Mich. 164, 171, 172.

As to the specific instance of locating an objectionable building near an objecting property owner, compare the analogous situation of placing a fire engine house in a restricted area, discussed in Allen v. City of Detroit (1911), 167 Mich. 464, 473 (36 LRA NS 890), part of which opinion is quoted in City of Big Rapids v. Big Rapids Furniture Manfg. Co., supra. Moreover, the Carter Court did not seem to recognize that the right of an abutting owner to reasonable access to the street is of a different nature, for example, than the right, if any, of a citizen to have his city retain its status as a county seat (32 Mich at 172). Indeed, the right of reasonable access by an abutting owner has been characterized by this Court as an "indefeasible right". Goodfellow Tire Co. v. Detroit Commissioner of Parks and Boulevards (1910), 163 Mich. 249, 254. And see Giegling v. Helmbold (1959), 357 Mich. 462, 464, where the Court said:

"It has long been decided law in this State that an abutting owner's right of access to a public street or alley is an interest in the land concerned. Horton v. Williams, 99 Mich. 423." (Emphasis added.)

It follows that when a governmental unit injures that right of access, it injures a property interest, and that injury, under the holding of Pearsall, supra, constitutes a "taking" for which just compensation constitutionally is required.

Secondly, the Court argued in Carter:

"The injury in all these cases is incidental to an exercise of public authority, which in itself must be assumed to be proper, because it is had by a public body acting within its jurisdiction, and not charged with malice or want of good faith. It must, therefore, be regarded as an injury that every citizen must contemplate as one that with more or less likelihood might happen." 32 Mich. 164, 172.

Here the Court misses the point. No one asserts that it is beyond government's authority to change a public road grade, but rather it is asserted that if the government's authorized action results effectively in taking of private property, the owner of that private property, by constitutional mandate, must be compensated. Surely a contrary result is not within the actual contemplation of the average property owner, and thus the Carter Court's bare allegation that it is, indeed, within his contemplation prompts reference to Mr. Justice TALBOT SMITH'S comment in I.M. Dach Underwear Company v. Employment Security Commission (1956), 347 Mich. 465, 480, 481:

"Whenever the law says that what a person did, legally, is the opposite of what he did actually, that when he shouted ``No,' what he really (legally) did was to whisper ``Yes,' then explanation is due our people that they may guard against the evils of clear speech and forthright expression."

The Carter Court, finally, argued that when land is condemned for highway purposes, the award given covers the possibility that the abutting property might at some unspecified future date suffer yet incalculable damages by an unpredicted and unpredictable change in grade. The mere statement of the argument disposes of it, especially in view of this statement in City of Detroit v. Grigg Hanna Lumber & Box Co. (1941), 296 Mich. 415, 420: "Until the grade of a public street is actually changed the damages resulting therefrom must of necessity be speculative".

The Carter Case has been followed uncritically in a number of subsequent cases, none of which, significantly, expatiates upon, or even elucidates, its rationale.

Thus, for example, in Hembling v. City of Big Rapids (1891), 89 Mich. 1, the Court denied recovery to a plaintiff who alleged that his land had been damaged when the grade of an abutting street had been raised. After the grade had been changed a committee of the city council assessed plaintiff $15 as the amount he had benefited from the grade change. Since plaintiff had not appealed this determination to the council, the Court held him estopped from later claiming he had, in fact, been damaged by the grade change. Quite gratuitously the Court noted, citing Carter, that no recovery might be had for a change of grade:

"Inconvenience may result to him, and his property be rendered less valuable, but public accommodation must prevail over his private interests." 89 Mich. 1, 4.

This is a thread that warps through several of these cases, namely, that paying abutting owners for damage done to their property by a grade change would make highway improvements too expensive. See Carter, supra. Baldly put, the constitutionally specious argument is this: "Changing the grade of a highway will benefit the many who are the public, and may injure a few abutting landowners. It is only just, therefore, that the few should not be compensated because, after all, the many will benefit." We prefer the reasoning expressed in Stock v. Township of Jefferson (1897), 114 Mich. 357, 360-362:

"It does not appeal to one's sense of justice to say that the exercise of a right possessed is not of as much benefit to the possessor as the taking of that right from the owner would be to the trespasser. * * *

"It is urged very earnestly by counsel that Mr. Stock's right to maintain his dam and to use the water that would naturally come to his mill must give way to the right of the public to improve the highways, to drain lands, and to generally improve the country. It is sufficient reply to this argument to say that it has long been the fundamental law of the land that a man is not to be deprived of his property without due process of law, and without compensation."

In many other cases decided after 1893 and purporting to rely upon Carter, the Court was not forced squarely to meet the issue of whether injury done to an abutting owner by a grade change was a compensable taking. This is because PA 1893, No 92 (CL 1948, § 253.1 et seq. [Stat Ann 1958 Rev § 9.1101 et seq.]) provided for the payment of damages resulting from a change of grade of a highway at a railroad crossing by the county, township, or city participating in the grade separation, and PA 1925, No 114 (CL 1948, § 253.51 et seq. [Stat Ann 1958 Rev § 9.1141 et seq.]) provided for such payment by the State, county, township, city, village, board, commission or other agency participating in the grade separation.^[3] See, for example, A.M. Campau Realty Co. v. City of Detroit (1934), 268 Mich. 417. There plaintiff filed a bill in chancery to restrain the lowering of a street grade at a railroad crossing until plaintiff's damages were determined. The Court held that plaintiff had an adequate remedy at law, citing the grade separation acts, supra, and so affirmed the chancellor's dismissal of the bill. Without reference to contrary holdings, for example, Schneider v. City of Detroit, supra, the Court also stated:

"We have repeatedly held that the lowering of the street grades is not the taking of abutting property without due process of law. City of Detroit v. Grand Trunk Railway of Canada, 163 Mich. 229; Mead v. Michigan C.R. Co., 174 Mich. 521." 268 Mich. 417, 420.

Both of the cases cited in Campau involved proceedings under grade separation acts and so, in both, plaintiffs could seek compensation under those acts.

The most recent pronouncement on this general problem appears in City of Detroit v. Grigg Hanna Lumber & Box Co., supra. There plaintiff, whose property abutted upon a street the grade of which was lowered to accommodate a railroad grade separation, appealed claiming, inter alia, that the amount of damages it received was inadequate. This Court affirmed, largely in reliance upon Grigg Hanna Lumber & Box Co. v. State Highway Commissioner (1940), 294 Mich. 346. There plaintiff had filed a bill of complaint to restrain the lowering of the street grade and from eventual dissolution of an issued restraining order, plaintiff appealed. In denying plaintiff relief, the Court said (p 354):

"As a general rule, an impairment of the owner's right of access to his property by a change in the grade of an adjoining street is not such a property interest as will fall within the ambit of the constitutional guaranty."

Carter was one of the cases cited in support of the "rule".

The Court said further (p 355):

"Such decisions are predicated upon the well-recognized theory that in congested metropolitan areas with rapidly increasing population and in a dynamic, swift-moving society the interest of safe and rapid travel is sometimes paramount to the interest of the individual."

While we might well agree that society's interests are paramount to the individual's insofar as the latter may not, for his own convenience, prohibit a grade change, we do not agree with the Grigg Hanna Court's ruling that society may justly benefit itself at the expense of an individual by failing to compensate him for damage done to him in order to procure society's benefit. As Mr. Justice POTTER, who wrote for the Court in the first Grigg Hanna Case, said in his earlier concurring opinion in James S. Holden Co. v. Connor (1932), 257 Mich. 580, 596:

"It has always been a basic principle of the law that ``If the work is of great public benefit, the public can afford to pay for it.' Eaton v. Railroad Co. [51 NH 504, 518 (12 Am Rep 147)]."

Moreover, it appears that the Court in the first Grigg Hanna Case recognized that even in the face of the "general rule" it cited, there might be instances where a grade change might result in a taking of the abutting owner's property. Thus the Court distinguished cases where, after the change of grade, a suitable alternative means of access to abutting property was provided, and where, therefore, no compensation could be had, from cases where "the alternative route is dangerous, poorly constructed, or manifestly inadequate". 294 Mich. 346, 357.

Upon consideration of the foregoing cases, and others, we have been persuaded that sound public policy and our concept of fundamental justice, to say nothing of our constitutional mandates, require overruling the rule^[4] enunciated in City of Pontiac v. Carter^[5] and require, instead, recognition of the fact that when a governmental unit changes the grade of a highway in such a way as to diminish the value of an abutting owner's property by impairment of his right of access to that highway, that owner's property has, to the extent of the diminution in its value, been "taken" for the public's use, thereby entitling the owner to just compensation therefor.

We turn now to the facts of the case before us.

Daniel and Ariel Thom own 80 acres of land in Burnside township, Lapeer county, with a frontage of 80 rods on highway M 53. On this land are located their home, farm buildings and farm machinery. In addition to these 80 acres the Thoms own an aggregate of 258 acres in four separate areas in Burnside township. The M 53 site serves as headquarters for a farming operation involving all of this land.

The Thoms purchased the M 53 site in 1939, and in subsequent years improved it by the erection of a home and farm buildings and by landscaping. Situated some 125 feet back from M 53 and about two feet above the grade of that highway, the attractive farm home was regarded as somewhat of a local showplace.

Highway M 53 runs north and south in front of the Thom home, and access was had to it by means of a U-shaped driveway which encircled the home and intersected M 53 at two points.

In 1961 the State highway department began to improve M 53 and this involved an alteration of the grade in front of the Thom home property. When construction was completed, the grade of M 53 was 10 feet higher than the Thom drive at its southern intersection and eight feet higher than the drive at its northern intersection, leading one witness to testify that "it looks as though they built in a hole". In addition the grade along the frontage of the Thom property from almost its southern boundary was substantially raised, and the highway grade was not level again with abutting property until approximately 400 feet north of the existing north drive.

Because of the grade change, Thom has great difficulty in moving his farm machinery off the 80-acre site which, of course, is necessary because of the scattered tracts involved in his farming operation. Mr. Chaffin, project engineer for the State highway department, agreed that the present access from the Thom property to M 53 is "pretty bad". The State highway department's appraiser testified:

"A. I don't think it is advisable for any property owner to be going in and out of those [drives].

"Q. Why?

"A. Dangerous.

"Q. Because of the steep incline?

"A. That's right."

Because of this state of affairs the Thoms filed suit in 1961 in the court of claims seeking recompense. Testimony, including the above, was taken, and it is undisputed that the Thom property was lessened in value as a result of the grade alteration, a witness for the State estimating the diminution of value at $5,200 and a witness for the Thoms estimating it at $23,000. Nonetheless that court dismissed the Thoms' claim, reasoning (1) that the change of grade, being within the existing right-of-way, gives rise to not damages compensable under the Constitution or laws of Michigan; (2) that the Thoms were barred from seeking damages by a release of right-of-way executed by their predecessors in title, which release provided that: "This conveyance includes a release of any and all claims to damage arising from or incidental to the altering, widening, draining, and improving of the road and the location thereof in, over, and upon land hereby granted"; and (3) that the State is immune from liability for acts committed in the performance of a governmental function.

The first ground is disposed of by our prior discussion. On the facts of this case it is undisputed that the change in the highway grade made the usual access to plaintiffs' land very difficult, and caused a substantial diminution in the property's value, and we therefore hold that there was a partial taking of plaintiffs' property without due process of law and without just compensation in violation of the then pertinent constitutional provision, Const 1908, art 13, § 1.

Neither are plaintiffs barred from redress by the language contained in the release executed by their predecessors in title, for which release plaintiffs' predecessors received the sum of $20.56. This language indeed bars plaintiffs' claim to incidental damages assertedly incurred as a result of the grade change. However, the nature of the grade change was such as to effectuate a partial taking of their property, and for this they are entitled by our Constitution to compensation. Certainly the release would not deprive plaintiffs of their constitutionally guaranteed compensation if the State had physically taken part of their property to widen the highway. So neither does the release bar them in the presented circumstances where there has also been a compensable taking. Before we will find that a party has waived a constitutional right, more explicit language must be present than is found in this release.

Finally, it is argued that in any event this suit for damages in the court of claims is barred because of the State's immunity from tort suits. However, in this case of Thom there was a taking of part of the Thoms' property without due process of law and without just compensation in direct contravention of the provisions of the State's Constitution. As my Brother BLACK notes in his opinion, that same constitutional provision imposes upon the State an implied liability ex contractu for such compensation. To permit the State to assert the defense of governmental immunity in such circumstances would be utterly to vitiate the constitutional provision providing for just compensation for the taking of private property for public use, for its would mean that the owner of property alleged to have been taken without compensation would be left without judicial recourse. It is the general rule that even the State may not intrude upon a citizen's lawful possession of his property (Ashley v. City of Port Huron [1877], 35 Mich. 296, 300; Herro v. Chippewa County Road Commissioners [1962], 368 Mich. 263, 272). While the citizen's possession is subject to the power of eminent domain, it would be absurd and contrary to the explicit guarantee of the Constitution to say that if the State takes property without giving the required compensation, it thereby becomes immune from any suit to obtain that compensation.

We conclude, then, that when a governmental unit changes the grade of a highway in such a way as either to destroy or to interfere seriously with an abutting owner's right of access to that highway, and such interference results in a significant diminution in the value of the property, then there has been a taking of the property to that extent, and if proper condemnation proceedings have not been had, resort may be had to the court of claims for compensation where the governmental unit is the State or an agency of the State within contemplation of the court of claims act. CL 1948, § 691.119 (Stat Ann 1959 Cum Supp § 27.3548[19]). See, currently, CLS 1961, § 600.6419 (Stat Ann 1962 Rev § 27A.6419).

Reversed and remanded for further proceedings. Costs to appellants.

T.M. KAVANAGH, C.J., and DETHMERS, J., concurred with SOURIS, J.

KELLY, J., concurred in result.

BLACK, J. (for reversal).

I cannot agree with Justice SOURIS' criticism of and motion to overrule the "rule" of City of Pontiac v. Carter, 32 Mich. 164. Such criticism is both wrong and unnecessary. I do agree that Pontiac has been applied, loosely and uncritically, in the more recent cases cited by Justice SOURIS, and I agree for reasons to be stated that the judgment of the court of claims should be reversed.

This case is typical of too many where a court of final appeal, having examined a mature precedent for the primary purpose of overruling it, makes bad law. Now surely, when a decision of a court of final resort is said by one party to be applicable either in bar or sustenance of recovery, and is said by an opponent party to be wholly inapplicable, that decision should first receive painstaking consideration in the light of the facts and issues which formed the basis of what was written by that Court. I have written to the point in greater detail for the case of Bauman v. Grand Trunk W.R. Co., 376 Mich. 675 and refer simply to this example, taken from Wolcott v. Holcomb, 97 Mich. 361, 368:

"It has often been said by this and other courts that the language of a decision must be construed with reference to and confined to the facts of that case."

City of Pontiac v. Carter, 32 Mich. 164, is the specific target at which Justice SOURIS has aimed his latest arrow of overrulement. Two years after it was handed down Pontiac was cited to and expressly distinguished by the Court (Ashley v. City of Port Huron, 35 Mich. 296). The same thing occurred five years after release of Ashley (Buskirk v. Strickland, 47 Mich. 389). On all three occasions (Pontiac, Ashley and Buskirk) Justice COOLEY wrote for the unanimous Court. In Buskirk the Justice distinguished Pontiac in these specific terms (pp 391, 392):

"The question, then, is not whether this plaintiff could have complained of consequential injury from the legitimate improvement of the street: City of Pontiac v. Carter, 32 Mich. 164; nor whether after so great a lapse of time the offered dedication could be accepted; but it is whether the authorities, without distinctly evincing an intent to accept, can enter upon the premises and remove with impunity the lateral support of adjacent grounds to the injury of their owners. And we are all of opinion that they have no such right. The question of the right to the soil within the limits of the platted streets, if the village authorities had seen fit to accept the offered dedication, does not arise upon this record."

I shall come to Ashley later.

Justice SOURIS points out that the Court, in Pontiac, made no reference "to the then pertinent constitutional provision found in the Constitution of 1850, art 18, § 2." That is quite true. The reason, appearing clearly from the opinion of Pontiac as well as from her brief on appeal, is that Mrs. Carter made no claim under that constitutional provision. Hence that provision was not mentioned by Justice COOLEY. Instead, the plaintiff relied exclusively upon cases from other jurisdictions, notably Ohio, which provided a common-law right of recovery upon the theory (p 168) "that for any injury occasioned to an adjoining lot-owner by a change in the grade once established for a street an action will lie." What was specifically and solely decided in Pontiac was that "no action would lie against a municipal corporation or body for an injury resulting form a lawful exercise of its legislative authority." The quotation is taken from Pontiac at 170. The emphasis is mine.

In this case of Thom, however, as in Ashley and then in Buskirk, what in fact was done by the defendant State highway commissioner has been found not to be "a lawful exercise of legislative authority." Rather, the specific question of "taking" having been raised, we now conclude on motion of Justice SOURIS that when a governmental unit changes the grade of a highway in such way as to either destroy or seriously interfere with an abutting owner's right of access to that highway, and that interference results in a significant diminution in the value of the property, then there has been a taking of the property to such extent, and if proper condemnation proceedings have not been had, the owner has a remedy by force of the constitutionally guarded property right (Const 1908, art 13, § 1; Const 1963, art 10, § 2).

In its essence the specific rule of Pontiac appears in the summation (p 172). It is that the plaintiff's damages, as alleged by her in that case, were covered by the original award of compensation, "except such as may result from an improper or negligent construction of the public work, or from an excess of authority in constructing it." Justice COOLEY went on: "In other words, the award covers all damages resulting from the doing in a proper manner whatever the public authorities have the right to do; but it does not cover injuries from negligence, or from trespasses."

Now it is this quoted rule of law which Justice SOURIS would overrule. Believing that it is fully as valid today as when written in 1875, I stand by it. Indeed, one may perceive with no difficulty that the Court, should it overrule Pontiac, will some day find its membership confronted by facts and contentions duplicating what it was called upon to consider in Pontiac. What then will the Court do? Overrule Thom, or ignore Thom by applying Pontiac? Or, unwilling to admit error, will the Court write that Pontiac and Thom are both distinguishable for some trifling reason?

Now let us examine the facts presented and contentions made in Pontiac which allegedly require overrulement of Pontiac or application thereof in bar of the Thom claim. In Pontiac the Court had before it a repetitiously specific allegation by Mrs. Carter, and proof in support, that the defendant city did "wrongfully enter upon said Saginaw street, and with shovels, hoes, plows, and scrapers, et cetera, filled in, raised and regraded, or caused to be filled in, raised and regraded with earth, stones, timber and other material, said Saginaw street to the depth of two feet, to wit: at the city of Pontiac, county of Oakland aforesaid." No impairment of access to the sidewalk and street in front of her property was claimed by Mrs. Carter. She did claim that her "business and occupation of an inn, or hotel keeper," had been damaged and injuriously affected by the acts of the city. That she might have claimed before this Court that the acts complained of amounted to an unconstitutional "taking" of her property is beside the point. She did not, choosing instead to rely upon the mentioned Ohio rule.

In Thom, on the other hand, it has been shown that the grade of trunkline highway M 53 was raised vertically 10 feet with result that no motor vehicle — farm or otherwise — may enter upon the pavement of the trunkline, from plaintiff's farm as before, without serious risk of automotive collision occasioned by customary trunkline speeds and particularly by a want of requisite vision, both ways on and along M 53, before entry thereon. There is no ground, these variant circumstances considered, upon which it may be argued seriously that Pontiac, if not overruled, would apply in bar of the present claim.

It becomes increasingly clear that our legal ancestors, from as far back as John Marshall's time, have had good reason for warning against application of what modern students call the "rationale" of a case without careful scrutiny of the fact-setting thereof.^[1] An elevation of the grade of a city street to the extent of two feet, that only without proof of an actionable trespass, especially when done in the days of horse-drawn vehicles and wooden sidewalks, could hardly be termed a "taking" of abutting property even if the constitutional point had been pressed on the COOLEY Court. Now does Pontiac's rationale (reasoning to decision of a case as presented, I call it), written as it was by Justice COOLEY, need any defense? If the Justice were here, writing with us, would he say that Pontiac had any present application should the Court fail to overrule it? Look again at what he said, of Pontiac, in Ashley and Buskirk.

The proof adduced by the Thoms establishes both an actionable trespass (see application of the Ashley Case in Herro v. Chippewa County Road Commission, 368 Mich. 263)^[2] and a taking from them of a valuable property right; that of direct distinguished from a circuitously expensive right of access to the highway which fronts their farm with result of diminution of value of the farm. In the absence of contrary proof, and so far there is none, they have a clear right to recover in the court of claims.^[3]

The most formidable defense is posed by the attorney general's counterstated question No 3. The question:

"Does the doctrine of sovereign immunity from tort liability bar recovery in an action ex delicto in the court of claims where damages resulting from a highway grade change are sought?"

The supreme courts of North Dakota and Alabama have met this question as I would meet it. The fallacious premise above is "immunity from tort liability," citing McDowell v. State Highway Commissioner, 365 Mich. 268; whereas and as presently found there has been a taking of plaintiffs' property to the extent of the damage done thereto, for which the defendants became liable, impliedly ex contractu, by force of the cited constitutional mandate.

The specific defense — posed by said question 3 — seems to have arisen first in Mayer v. Studer & Manion Co., 66 ND 190 (262 N.W. 925). There and in corresponding factual circumstances the court ruled (p 195):

"Since the Constitution guarantees the right to compensation, this obligation is in effect an implied contract on the part of the State to compensate for the damage which it has caused. The State has consented to be sued in cases ``arising upon contract' (CL 1913, § 8175), which includes implied as well as express contracts. Ford Motor Co. v. State, 59 ND 792 (231 N.W. 883)."^[4]

Some three years later the Mayer Case was followed in Jacobson v. State, 68 ND 259 (278 N.W. 652). There the property owner alleged in her complaint that the defendants (p 261) "tore up, rebuilt and reconstructed said Elk street and Ohio avenue as they pass in front of and to the side of plaintiff's property and greatly and materially changed the grade of said streets so that plaintiff's property was greatly damaged, plaintiff's access to the streets destroyed, and greatly injured the value and usability of said property and greatly depreciated its value." Demurrers to the complaint were sustained and the plaintiff appealed. The North Dakota supreme court, having cited and quoted from the Mayer Case, went on to apply it in these words (p 262):

"Plaintiff does not claim the defendants had no right to change the grade. When they did so the result cannot be said to be a trespass, even though injury is done to the property. It becomes, if anything, a taking or appropriation of property for public use, and the State or a municipality, in taking private property for public use, acts in its sovereign capacity, and not as a trespasser. What is recovered is ``compensation,' which presupposes a contract, expressed or implied. It is not damages in the strict sense of the word. See Schilling v. Carl Township, 60 ND 480, 489, 491 (235 N.W. 126, 129, 131)."

The most recent North Dakota case is Donaldson v. City of Bismarck, 71 ND 592, (3 NW2d 808). There, on petition for rehearing, the defendant city raised this question (p 606):

"That this is an action for damages in tort and not an action in condemnation proceedings."

The Court ruled (pp 609, 610):

"The provisions of section 14 of the [1889] Constitution^[5] are not restricted to eminent domain proceedings. They are applicable as well where private property has been taken or damaged without the consent of the owner, and where no condemnation proceeding has been brought. It is well settled that in such case the constitutional guarantee may be invoked, and the owner may maintain an action to recover just compensation for the property taken or the damage inflicted. [Citing authorities at length, including Mayer and Jacobson.] * * *

"In Mayer v. Studer & Manion Co. [66 ND 190, 195 (262 N.W. 925, 927)], this court said: ``Where the State or an agency thereof acting in a sovereign capacity takes or damages private property for public use without legal exercise of the power of eminent domain, the aggrieved party may recover compensation for the property thus taken or compensation for the damage to his property thus inflicted.'"

Turning now to Alabama. The latest and most exhaustively written case there is Hunter v. City of Mobile, 244 Ala 318 (13 So 2d 656). The court ruled that where a municipality takes or injures private property for a public purpose without having instituted condemnation proceedings and without having paid just compensation to the owner, right of suit will lie upon a legally implied contract for payment of such compensation. Citing carefully assembled authority to the point, exemplified by the text of 4 Am Jur, Assumpsit, § 14, pp 503, 504, the Alabama supreme court said (p 322):

"We think the reasoning sound and entirely applicable to the instant case. When private property is either taken or damaged for public purposes, the Constitution is a guarantee to the owner that he shall have just compensation therefor. The municipality thus takes or injures the property with the knowledge of this guarantee and must be held to an implied agreement to abide by its terms. It is in a sense a constitutional contract made for the benefit of private property owners, and it is entirely reasonable to imply a contract on the part of the municipality in the instant case to pay the person injured a just remuneration for the damages sustained as a consequence of this public improvement, just as the Constitution guarantees."

Of special significance is the recent addition to the text of American Jurisprudence. See 18 Am Jur, Eminent Domain, § 380, p 1022, and 1965 pocket supplement (p 189) showing insertion of the following at beginning of said section 380:

"In most jurisdictions constitutional provisions that private property shall not be taken without just compensation being made therefor have been held to be self-executing. Where this view prevails, it has been held that consent of the State to a suit against it arising under such provision is not a necessary prerequisite, and, in addition, many courts have held that in the absence of statutory remedies commonlaw remedies appropriate for the recovery of damages resulting from the taking or damaging are available to implement the self-executing constitutional provision."

In view of the court of claims act (CL 1948, § 691.101 et seq.; CLS 1961, § 600.6401 et seq. [Stat Ann 1962 Rev § 27A.6401 et seq.]), waiving the State's immunity from suit, we are not called upon now to determine whether the constitutional prohibition against "taking" of private property for public use is self-executing, within the quoted new text. That text is pertinently meaningful nevertheless, as indicating judicial assurance that no one, not "even the State," can "take" without having to pay according to the forms and remedies of law.

I concur in reversal and remand.

O'HARA, J. (for reversal).

I accept the opening statement in appellants' brief except to note that where appellants use "may" in the last sentence of the subsequently quoted paragraph, I would substitute "is":

"We would first like to make clear that this is not a case where appellants are before this Court seeking redress for a change of grade which would cause inconvenience or limited access to the highway. We agree that a change of grade which merely causes inconvenience or limited access to the highway may [is] not be compensable."

Thus I conclude that the issue in this case is not the same as that involved in City of Pontiac v. Carter, 32 Mich. 164. Hence, I do not share Mr. Justice SOURIS' view as to the necessity that it be overruled.

It is the facts in this case that adequately distinguish it from Pontiac, supra. The gross damage by reason of practical nonaccess to the highway, the rendering of the use of appellants' motorized farming equipment virtually impossible, are among those facts. This is not a case of mere inconvenience and limited access. It is on its facts, as Justice SOURIS and Justice BLACK both conclude, a constitutionally prohibited taking of private property without compensation. Redress is available through the court of claims.^[*]

I vote to reverse and remand for further proceedings but I do not vote to overrule Pontiac, supra.

SMITH and ADAMS, JJ., concurred with O'HARA, J.

NOTES

[1] See Article 2 of the Ordinance of 1787 (1 Stat 51); Const 1835, art 1, § 9; Const 1850, art 18, § 2; Const 1908, art 13, § 1; and Const 1963, art 10, § 2. The 1908 constitutional provision, effective when the events herein occurred, provided:

"Section 1. Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefore being first made or secured in such manner as shall be prescribed by law."

[2] Compare this Court's holding, in which Justice COOLEY joined, with regard to the analogous situation of interference with the rights of a riparian owner to use of a waterway:

"Neither the supervisors nor the State can directly or indirectly appropriate the plaintiff's use of the shore to public uses without compensation; and if even a lawful bridge and pier is constructed so near it as to preclude its profitable use he is entitled to compensation. If the bridge and pier is far enough from the dock so that it may be used but only with inconvenience, the same principle applies, and the question is merely of the extent of the injury." Maxwell v. Bay City Bridge Company (1881), 46 Mich. 278, 288, 289.

[3] In addition, CL 1948, § 102.7 (Stat Ann 1949 Rev § 5.1812) provides whenever a street or sidewalk grade in a fourth class city be established, and an abutting owner improves his property with reference thereto, the grade may not subsequently be changed without compensation to the owner for injury thereby done him.

[4] Lest there be misapprehension among the bench and bar regarding which rule of Carter we are renouncing, we state that we are overruling so much of the Carter opinion as subsequently has been applied by this Court to deny the owner of private property a remedy when public authorities, in the proper exercise of their power, alter the grade of a public way abutting upon such property regardless of the extent of the change in grade and its consequential effect upon the use of such abutting property. Indeed, this was the very thrust of the opening paragraph in Justice COOLEY'S opinion in Carter, which begins as follows (p 165):

"The weight of authority against this action is overwhelming. In the leading case of the Cast Plate Manufacturers v. Meredith, 4 Durn & E T R 794 (100 Eng Rep 1306), which, like the one before us, was an action to recover damages suffered from raising the grade of a public way, Lord Kenyon states very concisely some of the reasons which preclude a private remedy in such a case."

The only rational conclusion one can reach concerning the meaning of the Carter Case is that the Court was laying down a general principle, and as we have noted supra, our subsequent cases have treated the principle as a general one applicable to deny the existence of a legal remedy regardless of the extent of the grade change and its consequential effect upon abutting landowners so long as the change in grade be not accomplished negligently or by trespass. It is that rule, or general principle, which we would overrule so that even absent negligence or trespass, the owner of private property abutting a public way must be compensated whenever public authorities alter the grade of the public way in such a way as to constitute a taking of a property right.

[5] While my Brother BLACK in his opinion demonstrates how Justice COOLEY distinguished Carter in his opinions in Ashley v. Port Huron, infra, and Buskirk v. Strickland (1882), 47 Mich. 389, Justice BLACK makes no effort to defend the rationale of Carter except to note that the then pertinent constitutional prohibition against the taking of private property for public use without due process and compensation was not argued to the Court. While Justice COOLEY shall remain in the regard of all thoughtful observers of the American judicial scene one of the wisest and most skillful jurists produced by this nation, his preeminence should not immunize his opinions from critical scrutiny and when, on predictably remote occasions, even he may be found to have erred, our Court should not abdicate its duty to say so, forthrightly.

[1] Cohens v. Virginia, 6 Wheat (19 US) 264, 399 (5 L ed 257, 290). — REPORTER.

[2] Justice COOLEY wrote in Ashley, of Pontiac, that the plaintiff's premises (p 297) "were in no way invaded." Here, aside from all else, there is undisputed proof that the Thom farm actually was invaded when the grade of highway M 53 was altered from a height below — to an extreme height above — the original driveway which led from the farm to the adjacent highway. It was shown that a quantity of the "spoil," from the grade fill, was pushed over the Thoms' fence a lateral distance of some 2 or 3 feet and a longitudinal distance of about 100 feet; that "a lot of silt washed on our garden from the road" as a result of the change of grade; that approximately 200 feet of Thom farm fence was buried which the Thoms had to dig up and re-erect and, according to plaintiff Daniel B. Thom: "There used to be a natural water course on the road right-of-way, and they filled that until it comes way over onto my property, and the water has come back onto me."

[3] See CL 1948, § 691.101 et seq., as amended (Stat Ann 1959 Cum Supp § 27.3548[1] et seq.). — REPORTER.

[4] When the instant statement of claim was filed in the court of claims, plaintiffs had a right to rely upon a promise by the State, implied in law, "to pay all just damages sustained by plaintiff." (CL 1948, § 611.1 [Stat Ann § 27.651]). For the current provision, see section 6655 of the revised judicature act (CLS 1961, § 600.6655 [Stat Ann 1962 Rev § 27A.6655]).

[5] Section 14 is North Dakota's guaranty of just compensation for the taking of private property for public use.

[*] See, currently, CLS 1961, § 600.6401 et seq. (Stat Ann 1962 Rev § 27A.6401 et seq.). — REPORTER.