State Highway Commissioner v. Sypher
State Highway Commissioner v. Sypher
Opinion of the Court
By statutory condemnation proceedings the State, acting through the State highway commissioner, in widening US-2 in Doyle township, Schoolcraft county, acquired land on each side of the highway, which land theretofore belonged to defendants, John Sypher and Catherine Sypher, husband and wife. The commissioners appointed by the probate court to appraise damages upon hearing determined and awarded damages in the amount of $1,427.50. (See Act No. 352, Pub. Acts 1925, as amended ). Over objection of the State highway commissioner incident to his motion to set aside the commissioners7 report, this award was confirmed by the probate court and payment ordered. The State highway commissioner has appealed by certiorari.
Among reasons asserted in support of the appeal are: (1) that the commissioners used the wrong method in arriving at the amount of damages, and (2) that the damages awarded were excessive and in an amount contrary to the great weight of evidence.
The Sypher farm, composed of substantially 80 acres, is bisected by US-2. The 40-acre parcel on which the dwelling and other farm buildings are located fronts 80 rods on the north side of the highway, and the other 40 acres is directly opposite on the south side of the highway. In the highway widening a strip of land 87 feet wide adjacent to the old highway was taken off from each 40-acre parcel,
“There is 21 acres that is into crop. It is all cleared except about 7 acres on the north 40, and on the south 40, 9 acres is cleared and the rest is timber, wood lot and pasture. ’ ’
The assessed value of the land is “about $700;” and there is testimony that assessed1 valuation “is
At the hearing in the probate court as to confirming or vacating the commissioners’ award of $1,427.50, the testimony convincingly disclosed that in arriving at the amount of the award the commissioners considered the testimony as to each of the following items:
(1) Pull value of south 40-acre tract... .$ 600.00
(2) Cost of replacing 80-foot well on south 40.......................... 160.00
(3) Value of 2.5 acres taken from north 40 at $75 per acre................. 187.50
(4) Value of a frame building on north 40 ............................... 200.00
(5) Value of 9 apple trees removed from land taken from north 40.......... 190.00
(6) Value of 60 rods of fence taken from north 40.......................... 90.00
Total $1,427.50
“Q. I show you Exhibit B. Is that the list of figures that you used to arrive at the value — before and after value?
“A. Yes, sir, that is as far as I can remember, it is about the same thing. ’ ’
However, there is testimony that notwithstanding the commissioners gave consideration to the above items in arriving at their conclusion, the amount of the award was the result of their final determination as to depreciation of the value of this farm resulting from the widening of the highway. Notwithstanding this latter testimony we are convinced that the method used by the commissioners in arriving at the amount of their award was wrong and prejudicial to the State, and necessitates reversal. It is self-evident that when the commissioners awarded what was considered to be the full value of the south 40 as damages, notwithstanding the defendants still own and use all except the narrow strip taken for widening, a wrong result was obtained. Again when the commissioners allowed $160 for an assumed loss of an 80-foot well on this south 40, which defendants still possess and are using, and after the full value of the 40 had already been awarded as damages to the defendants, a palpable wrong was done.
As to the north 40 it is obvious that the commissioners allowed $75 per acre for the full amount of the land taken on that side of the highway and then added thereto $190 for 9 apple trees taken on this land and $90 for fence removed from the north 40. The .highest figure under the testimony for replacing this fence was $1 per rod; but the commissioners allowed it at $1.50 per rod.' Clearly the foregoing
While we do not hold that it is universally improper to take testimony which will disclose more in detail special items of damages, such as loss of valuable trees, leaving remaining portions of property inaccessible or undesirable, et cetera (Page v. Wells, 37 Mich. 415), still the clear, safe and definite rule of measuring damages in this type of proceedings has been repeatedly announced in this State as follows:
“Where only part of parcel is taken in condemnation proceedings, just compensation is not measured by proportionate acreage, but by amount to which value of property from which it is taken is diminished.” In re Widening of Fulton Street (syllabus), 248 Mich. 13 (64 A. L. R. 1507).
See, also, In re State Highway Commissioner, 249 Mich. 530; and In re Widening Allen Road, 250 Mich. 690.
The record before us tends strongly to support appellant’s contention that the damages awarded were excessive and in an amount contrary to the great weight of evidence. But in considering this phase of this appeal in the nature of certiorari we must be mindful of the following general rule which prevails in this jurisdiction.
“Where the amount awarded for property damage, in condemnation proceedings, is between the maximum and minimum amounts testified to by the witnesses for the parties, and no ground for disturbing it is shown, it is affirmed by the Supreme Court.” In re Widening Harper Avenue (syllabus), 237 Mich. 684.
To the same effect see Board of Education of the City of Detroit v. Lacroix, 239 Mich. 46; City of
Under the record presented by the instant appeal consideration must be given to appellant’s contention that because of the introduction of incompetent, irrelevant and prejudicial testimony a fair and impartial hearing was, not had before the commissioners. The following is one instance of which appellant complains. On cross-examination of one of the condemner’s witnesses, the following questions were asked:
“Q. "When you were with the government did you have anything to do with the 126 acres that were condemned on US-2 for which they paid $25,000 for on US-2?
“A. No.”
“Q. Do you know anything about the 126 acres that was paid for by the State of Michigan out of their State treasury, on the Michigan State high-' way — $26,500 for 126 acres?
“A. No.”
The property referred to was- not in the same county as the land in suit. No showing was made that this other property was even in the vicinity of the Sypher farm, or that there was any similarity whatever between it and the property in suit. It is too plain for argument that the purpose of getting before the commissioners, at least by innuendo, information as to large sums paid by the State for condemned property in other localities, and in all probability under very different circumstances, was to in-' fluence the commissioners in the instant case to be overliberal in their award. This was highly prejudicial to the condemner. See Ontonagon R. Co. v. Norton, 236 Mich. 187; Commission of Conservation of Department of Conservation v. Hane, 248 Mich. 473.
Another phase of the instant proceedings of which appellant justly complains and to which he objected was the contention of the property owners’ counsel that the following testimony of defendant John Sypher was admissible and proper for the commissioners’ consideration in arriving at the amount of the award.
“Q. "What would you say in regard1 to the loss to you of cutting your farm in two with the highway— the loss to you from a dairy standpoint, is per day? * * *
“A, One dollar a day.”
We deem it unnecessary to review other matters of which appellant complains because the errors and irregularities in the proceedings before the commissioners already noted necessitate vacating the award and remanding the case for further hearing before new commissioners to be appointed' by the probate court. It is so ordered, with costs of this Court to appellant.
Reference
- Full Case Name
- In re STATE HIGHWAY COMMISSIONER'S PETITION. STATE HIGHWAY COMMISSIONER v. SYPHER
- Cited By
- 2 cases
- Status
- Published