# Backus v. Fort St. Union Depot Company

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## Dissenting Opinion

    Harlan
United States Supreme Court
169 U.S. 557
Backus v. Fort St. Union Depot Company
The defendant in error is a cop oration created under the laws of the state of Michigan, for the purpose of constructing a union depot in the city of Detroit. In order to connect this depot with the railroads desiring to enter, it was necessary to place tracks on River street, and some of the way, at least, these tracks had to be elevated above the grade of the street. As a part of its enterprise the depot company undertook the work of constructing these tracks. The plaintiffs in error were the owners of a manufacturing plant. The individual plaintiff in error held the title in fee to the property, and the corporation plaintiff in error was his lessee. This manufacturing plant fronted on River street, and fronted on that part of it where the tracks were necessarily on a viaduct far above the surface. No part of the ground actually occupied by the plant was sought to be taken, but under the laws of Michigan the owner of a lot fronting on a street owns to the center of the highway, and is entitled to recover damages in case that street is appropriated to the use of a railroad. The third clause in section 4 of the union depot act (1 How. Ann. St. § 3461) provides specifically that the amount of these damages shall be ascertained in the same way as is provided in ordinary cases of condemnation.
The constitution of Michigan provides:
Article 15, § 9: 'The property of no person shall be taken by any corporation for public use without compensation being first made or secured, in such manner as may be prescribed by law.'
Article 18, § 2: 'When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders, residing in the vicinty of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law.'
The Michigan union depot act was passed in 1881. It prescribes proceedings for the condemnation of private property, substantially similar to those in the Michigan general railroad law, first passed in 1855. Sections 9, 10, and 11 of the depot act, being sections 3466, 3467, and 3468 of 1 How. Ann. St., provide:
§ 3466-Sec. 9: 'The commissioners shall take and subscribe the oath prescribed by article eighteen of the constitution. * * * They may view the premises described in the petition, and shall hear the proof and allegations of the parties, and shall reduce the testimony, if any is taken by them, to writing, if requested to do so by either party, and after the testimony is closed in such case, and without any unreasonable delays, and before proceeding to the examination of any other claim, all being present and acting, shall ascertain and determine the necessity of taking and using any such real estate or property for the purposes described; and, if they deem the same necessary to be taken, they shall ascertain and determine the damages or compensation which ought justly to be made by the company therefor to the party or parties owning or interested in the real estate or property appraised by them. * * * They shall make a report to said court or judge, signed by them, of the proceedings before them, if any, which may be filed with the clerk of the court, either in vacation or term time, or the probate court, as the case may be. * * * In case a jury shall have been demanded and ordered by the court, pursuant to section eight of this act, the said jury shall proceed to ascertain and determine the necessity of taking and using any such real estate or property, and the damage or compensation to be paid by the company therefor, in the same manner and with like effect as is provided in this section in the case of commissioners, and as is further provided in said section eight. * * * The said judge, or a circuit court commissioner to be designated by him, may attend said jury, to decide questions of law and administer oaths to witnesses, and he may appoint the sheriff or other proe r officer to attend and take charge of said jury while engaged in said proceedings. And the jury shall proceed to determine the amount of damages to be awarded, and shall have all the powers hereby conferred upon commissioners; and a report signed by the jury, whether the judge is or is not in attendance, shall be valid and legal. * * *'
§ 3467-Sec. 10: 'On such report being made by the commissioners or jury, the court, on motion, shall confirm the same on the next or any subsequent day when in session, unless for good cause shown by either party; and when said report is confirmed, said court shall make an order containing a recital of the substance of the proceedings in the matter of the appraisal, and a description of the real estate or property appraised, for which compensation is to be made, and shall also direct to whom the money is to be paid, or when and where it shall be deposited by the company. Said court, as to the confirmation of such report, shall have the powers usual in other cases.'
§ 3468-Sec. 11: 'A certified copy of the order so to be made shall be recorded in the office of the register of deeds for said county, in the book of deeds; and thereupon, on the payment or deposit by the said company, of the sum to be paid as compensation for such land, franchise or other property, and for costs, expenses and counsel fees as aforesaid, and as directed by said order, the company shall be entitled to enter upon and take possession of and use the said land, franchise and other property for the purpose of its incorporation; and all persons who have been made parties to the proceeding, either by publication of otherwise, shall be divested and barred of all right, estate and interest in such real estate, franchise or other property, until such right or title shall be again legally vested in such owner; and all real estate or property whatsoever acquired by any company under and in pursuance of this act, for the purpose of its incorporation, shall be deemed to be acquired for public use: provided, the said sum to be paid as damages and compensation, and costs, expenses and counsel fees as aforesaid, shall be paid by the company, or deposited as provided in this act, within sixty days after the confirmation of said report by the said court; and in case said company fail or neglect so to do, such failure or neglect shall be deemed as a waiver and abandonment of the proceedings to acquire any rights in said land or property. Within twenty days after the confirmation of the report of the commissioners or jury, as above provided for, either party may appeal, by notice in writing to the other, to the supreme court, from the appraisal or report of the commissioners or jury; such notice shall specify the objections to the proceedings had in the premises, and the supreme court shall pass on such objections only, and all other objections, if any, shall be deemed to have been waived; such appeal shall be heard by the supreme court at any general or special term thereof, on notice thereof being given according to the rules and practice of the court. On the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners or jury, in its discretion. The second report shall be final and conclusive upon all parties interested. If the amount of the compensation to be allowed is increased by the second report, the difference shall be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or shall be deposited as the court shall direct; and in such case all costs of the appeal shall be paid by the company; but if the amount is diminished, the difference shall be refunded to the company by the party to whom the same may have been paid, and judgments therefor and for all costs of the appeal shall be rendered against the party so appealing. On the filing of the report, such appeal, when made by any claimant of damages, shall not affect the said report as to the right and interests of any party, except the party appealing; nor shall it affect any part of said report in any case, except the part appealed from; nor shall it affect the possession of such company of the land appraised; and when the same is made by others than the company, it shall not be heard except on a stipulation of the party appealing not to disturb such possession during the pendency of such proceedings.'
The proceedings were commenced in the usual form by a petition filed by the depot company, January 24, 1891, in the circuit court for the county of Wayne, in which county the city of Detroit is situate.
The plaintiffs in error (respondents below) demanded a jury. The first hearing commenced on February 25, 1891, and terminated on March 18, 1891, in a disagreement of the jury upon both issues, that of necessity, and that of compensation. A second hearing was had, commencing on June 10, 1891, and resulting on July 16, 1891, in a verdict in favor of the depot company on the question of public necessity, and assessing the damages of the respondents as follows: To Absalom Backus, Jr., as the owner of the fee, $17,850; to the corporation, A. Backus, Jr. & Sons, $78,293. At neither of these hearings was the judge of the circuit court present. Upon the motion of the depot company the circuit court vacated the award of damages, and ordered that a new jury be impaneled. Thereupon the respondents applied to the supreme court of the state for a writ of mandamus to compel the setting aside of this order. That court, on November 19, 1891, issued a peremptory writ of mandamus as prayed for. 89 Mich. 210, 50 N. W. 646. On November 30, 1891, the circuit court, in compliance with this writ, entered an order which, as amended, confirmed the verdict and award of the jury, and also provided as follows:
'It is further ordered that within sixty days from the date of this order the Fort Street Union Depot Company is required to tender and pay to Absalom Backus, Jr., the sum of seventeen thousand eight hundred and fifty dollars, and to A. Backus, Jr. & Sons the sum of seventy-eight thousand two hundred and ninety-three dollars, and to James N. Dean and William H. Davidson, executors, the sum of one dollar, together with their costs and expenses, if the same have been taxed, including an attorney fee of twenty-five dollars; and if the said parties or either of them refuse to accept the tender and payment of said sums, the Fort Street Union Depot Company is required to deposit the same, under the supervision of the clerk of this court, in the Detroit National Bank and to the credit of this cause, including said costs and expenses: provided, that, if said costs and expenses have not been taxed within the said sixty days, the same to be so deposited within five days after they are taxed.
'Said money shall remain on deposit in said bank, but at the risk of the petitioner, subject to be drawn therefrom, and to be paid to the parties entitled to the same, on orders signed by one of the judges of this court and countersigned by the clerk.
'It is further ordered that upon the tender and payment or deposit of said sum of ninety-six thousand one hundred and forty-four dollars, and of said costs, expenses, and counsel fees, as aforesaid, the said Fort Street Union Depot Company shall be entitled to enter upon and take possession of and use the right of way above described for the purpose of its incorporation, under its articles of association and the constitution and laws of this state, and that said respondent shall be devested and barred of all right, estate, and interest in such right of way, until such right or title shall be again legally vested in them, and said right of way shall be deemed to have been acquired by said company for public use.'
On December 2, 1891, the depot company appealed from the award of the jury, and from the confirmation thereof, to the supreme court of the state. On January 26, 1892, the depot company paid to the respondents, and they received, the amounts awarded to them, n d thereupon the depot company took full possession of the property, constructed its tracks, and has been ever since in possession and use of them. On March 3, 1892, the appeal was argued in the supreme court, and on June 10, 1892, its decision was announced. 92 Mich. 33, 52 N. W. 790. It was held by a majority of the court (the chief justice dissenting) that the opinion expressed on the granting of the mandamus had too narrrowly restricted the powers of the circuit court, and it was ordered that the verdict of the jury, while confirmed so far as it determined the question of necessity, should be vacated and set aside so far as it awarded compensation, and that the cause be remanded to the circuit court, with directions to proceed with a new appraisal, the costs of the appeal to abide the event of such appraisal.
It was also held that the fact that the amount of the award and confirmation had been paid to the respondents, and the property taken possession of by the depot company, since the taking of the appeal, did not affect the right of the depot company to a new trial upon the question of compensation.
When the case was returned to the circuit court the respondents objected to any further proceedings, but the same was overruled, and a jury impaneled. The sessions of this jury were presided over by the circuit judge, and, after hearing the testimony and examining the property, it returned a verdict, assessing the damages of the individual respondent at the sum of $15,000, and of the corporation respondent at the sum of $48,000. Thereupon, on motion of the depot company, and on December 28, 1893, the circuit court entered a judgment against the individual respondent for $2,850, the difference between the amount of the first and second awards, and a like judgment against the corporation respondent for $30,293, and also a judgment against both respondents for the costs of the appeal and subsequent proceedings, taxed at $4,168.20. On the 26th of June, 1894, the respondents filed their petition in the supreme court of the state of Michigan, praying for a writ of certiorari. The writ was allowed, whereby the entire record was transferred to that court, which, in an opinion filed on January 8, 1895, affirmed the proceedings below, with costs. 103 Mich. 556, 61 N. W. 787. Whereupon the plaintiffs below sued out this writ of error.
Don M. Dickinson, for plaintiff in error.
Fred. A. Baker, for defendants in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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