Detroit Edison Company v. Zoner

McGregor, J.

In June, 1965, the Detroit Edison Company filed a petition pursuant to CL 1948, § 486.251 et seq. as amended (Stat Ann 1968 Cum Supp § 22.1671 et seq.) for condemnation in the probate court for Oakland county, seeking to acquire a fee interest in a 200-foot wide strip of land across defendants’ property. The use avowedly planned for this strip was the construction of a major high-power transmission line to assist the power company in meeting increasing demands for electrical power in southeastern Michigan. Since 1956 there had existed between the parties a written instrument which conveyed an easement right to Detroit Edison in the identical strip for purposes of constructing a tower transmission line thereon. Expert witnesses testified that the existence of the easement and towers presently constructed thereon affected their valuations.

This case was heard by a condemnation commission under the rules of the probate court. The commission was instructed in the law by the probate judge and returned a report setting damages to the defendants of $11,390 and this award was confirmed by the probate court. By virtue of GCR 1963, 806.1, final judgments in probate courts are appealable directly to this Court if they are not triable de novo in the circuit court. Condemnation actions by water, electricity, and gas companies are not triable de novo in the circuit courts, and thus are appealable directly to the Court of Appeals. In re petition of Detroit Edison Company (1961), 365 Mich 35; Michigan Gas Storage Co. v. Gregory (1954), 341 Mich 34. Such a procedure has been followed in this case.

Defendants raise these five general claims of error on appeal: that they were improperly denied a pretrial conference; that the parol evidence rule was improperly applied to exclude oral negotiations surrounding the 1956 easement grant; that the probate judge improperly refused certain requested charges to the condemnation commission; that the question of necessity for taking a fee interest was not proved; and that the probate court improperly affirmed the award while there vías a contemporaneous trial in the circuit court which claimed fraud in the 1956 easement grant.

When the present court rule 301 was first promulgated, pre-trial conferences were not required in condemnation eases. See Committee Notes, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 5. Since that first promulgation, the. theory of a condemnation case has changed from' being inquisitorial in nature to being a contested-judicial action by the adoption of the 1963 Michigan Constitution, specifically art. 10, § 2. The theory of this change is set out in State Highway Commissioner v. Lindow (1966), 4 Mich App 496. Defendants make the argument that they were improperly denied a pre-trial conference under the Lindow precedent and under the wording of GrCR 1963, 301.1:-

“In every contested civil action the court shall direct the attorneys for the parties to appear before it for a conference.”

The general court rules do not generally govern the practice in probate court. GrCR 1963, 11.1. Separate rules are established in Michigan for probate practice. Honigman & Hawkins, Manual of Michigan Rules (1963), 331-339. The power and supply companies condemnation statute is silent in regard to pre-trial conferences. It is the opinion of this Court that it was not error in this case for the probate court to have denied the motion for a formal pre-trial conference. Our conclusion is reinforced by the fact that an informal pre-trial conference was held and the defendants have made no showing of prejudice by the denial of a formal conference.

It is the general and Michigan rule that where a contract is clear and unambiguous, parol evidence of negotiations cannot be admitted to vary the contract. Salzman v. Maldaver (1946), 315 Mich 403; D. N. Osborne and Co. v. Wigent (1901), 127 Mich 624; 32A CJS, Evidence, § 851, p 211; 30 Am Jur 2d, Evidence, § 1029, p 164. The easement contract clearly called for the erection of a high-power tower transmission line. Defendants argue that they sought to introduce evidence that would show that the easement granted was only for smaller towers than the power company now plans to construct, and which would carry less power than is now proposed. They argue that the proffered evidence would show implied conditions and that the power company was seeking to increase improperly the burden of the easement, in violation of the precedent of Delaney v. Pond (1957), 350 Mich 685.

The easement grant clearly allowed the construction of a high-power line. Technical aspects of the transmission line were not denoted in the contracts, nor would we have expected as much. Science and technology do not stand still. Reasonable men would expect some change in tower design, capacity, or material composition in the span of a decade. The law does not require the cessation of scientific advancement and in this case, will not permit the parties to claim they contracted to such a cessation a decade ago, when the written contract itself is clear and does not require such a finding. Defendants’ parol evidence was properly excluded.

One of the two rejected charges proposed by the appellants was worded in such a manner that it would have included much of the same information concerning the negotiations surrounding the 1956 easement grant which was excluded under the parol evidence rule. We have ruled that the exclusion of the evidence of negotiations was not erroneous. It also was not erroneous to refuse to give the requested charge which would have negated the parol evidence ruling for practical purposes.

The other requested charge was that if the commission found a part of the testimony of an expert witness was incorrect or based on a false premise, then the entire testimony must be disregarded. Such a charge would have been erroneous. If the testimony was false in one respect, the commission could have, in its discretion, disregarded all of the testimony, or it could have given credence to that testimony supported by other evidence. People v. Hunter (1963), 370 Mich 262; Western Michigan University v. Slavin (1967), 6 Mich App 291.

On the question of necessity, the defendants argue that there was no proof of the necessity of taking a fee interest in the land. This argument is based on an excerpt of testimony of a witness for the power company which indicated that one of the reasons for seeking a fee interest in the strip arose out of a sense of fairness to the property owners. Complaints had been received from owners of other property encumbered by easements for similar construction, that the landowners should not have to pay taxes on the land under the power lines, of which they had only a very restricted use. The defendants argue that a sense of fairness towards the landowners is not a showing of necessity and that the individual landowners are the best judges of fairness in any given case. Defendants, in proposing this argument, seem completely to ignore additional testimony which tended to show a need for a fee interest in the strip of land which lies under and to either side of the power lines. Evidence was introduced of factors associated with the line construction and maintenance which would be inconsistent Avith anything except a fee ownership. The power company insists upon a prohibition against structures under the line or near the towers, primarily because of the danger of a fire damaging the line so as to cause a major power failure. The power company also cuts down all trees which would in any way interfere with the power line. It is the opinion of this Court that the condemnation commission had sufficient evidence upon which to base its findings of the necessity for the taking of a fee interest.

Finally, defendants claim that the probate court erred in affirming the award Avhile there was a contemporaneous action pending in the circuit court, claiming fraud in the 1956 easement grant. It would have been preferable to have all possible litigation disposed of before the confirmation in this case, hoAArever, courts must move Avith dispatch on the cases before them. Theoretical or possible influence on a given case by pending or potential collateral cases should not oversway court rulings. At the time of confirmation of the award, this case was complete and the court explicitly followed the confirmation statute. CL 1948, § 486.252(e) [Stat Arm 1968 Cum Supp § 22.1672(5)]. "We find no reversible error in the confirmation of the award.

The judgment of the probate court is affirmed. Costs to appellees.

Fitzgerald, P. J., concurred with McGregor, J.