CHARLES MURPHY, MD, PC v. City of Detroit

201 Mich. App. 54 (1993) 506 N.W.2d 5

CHARLES MURPHY, MD, PC
v.
CITY OF DETROIT
AMERICANA SUPERFOOD, INC
v.
CITY OF DETROIT

Docket Nos. 139145, 139147.

Michigan Court of Appeals.

Submitted April 6, 1993, at Detroit. Decided August 2, 1993, at 9:15 A.M.

Stone & Richardson, P.C. (by Ralph H. Richardson), for plaintiffs.

Donald Pailen, Corporation Counsel, and Deborah Ross Adams, Assistant Corporation Counsel, for the defendants.

Before: MARILYN KELLY, P.J., and SHEPHERD and CONNOR, JJ.

CONNOR, J.

Plaintiffs filed inverse condemnation actions, claiming that defendants' conduct resulted in a de facto taking of their property without compensation. On defendants' motion for summary disposition brought pursuant to MCR 2.116(C)(10), the trial court ruled that there was no taking and dismissed plaintiffs' claims. Plaintiffs appeal as of right, and we affirm.

Plaintiffs own property and operate businesses on East Jefferson Avenue in Detroit. Defendants used their power of eminent domain to purchase large areas of land nearby for two urban renewal projects, and leveled the residential neighborhoods that had been located on the land. Each plaintiff's volume of business was reduced about seventy-five percent from what it was before defendants' action.

We agree with the trial court that there is no genuine question of material fact and that, as a matter of law, defendants did not take anything that could be construed as plaintiffs' property.

Both our state and federal constitutions provide that private property may not be taken for public use without just compensation. US Const, Am V; Const 1963, art 10, § 2. "Property" embraces everything over which a person may have a right to exclusive control or dominion. Rassner v Federal Collateral Society, Inc, 299 Mich. 206, 213-214; 300 N.W. 45 (1941); People v McKendrick, 188 Mich. App. 128, 136; 468 NW2d 903 (1991). A "taking" for purposes of inverse condemnation means that government action has permanently deprived the property owner of any possession or use of the property. Jack Loeks Theatres, Inc v Kentwood, 189 Mich. App. 603, 608; 474 NW2d 140 (1991), modified in part 439 Mich. 968 (1992). While there is no exact formula to establish a de facto taking, there must be some action by the government specifically directed toward the plaintiff's property that has the effect of limiting the use of the property. "[T]he form, intensity, and deliberateness of the governmental actions toward the injured party's property must be examined." In re Acquisition of Virginia Park, 121 Mich. App. 153, 160; 328 NW2d 602 (1982).

Defendants did not take from plaintiffs their right to possess their lands and buildings, and defendants took no deliberate action toward plaintiffs' property that deprived plaintiffs of their right to use their property as they saw fit. They did not take from plaintiffs their right to sell their land, lease it, or give it away. Plaintiffs may continue to operate their businesses on their land, or may use their land for any other purpose that is not a nuisance to others, subject only to reasonable government regulation. McKendrick, supra at 137. In short, defendants took no action directed at plaintiffs' property.

We do not doubt that the value of plaintiffs' properties has greatly diminished because of defendants' actions. By removing 1,400 residences, housing 17,000 people, from the neighborhood immediately adjacent to plaintiffs' businesses, defendants have effectively eliminated most of plaintiffs' potential customers. What had once been prime locations for a medical center and a grocery store suddenly became unsuitable for those endeavors. Presumably, plaintiffs paid a premium for their property because of its proximity to a substantial base of potential customers. They assumed their customer base would remain constant because of their expectation that the land nearby would continue to be used in the future as it had been used in the past.

However, expectations are not rights. Despite plaintiffs' assumption that the adjacent properties would always be a residential community, they had no right to require that the property remain unchanged. The exclusive right to control the use of the land did not belong to plaintiffs, but to their neighbors who owned it. When defendants bought the neighbors' land, they bought the right to control the use of the land. Despite the diminution in value of plaintiffs' land and buildings, resulting from defendants' change in the way they used their land, defendants took no deliberate action directed toward plaintiffs' property rights that deprived plaintiffs of possession or use of their land or buildings.

Affirmed.