As the respondents, both at the trial in the circuit court of
the state and in the subsequent proceedings on the certiorari in
the supreme court of the state, specifically set up and claimed
rights under the federal Constitution which were denied, the
jurisdiction of this Court is not open to doubt.
While this Court may examine proceedings had in a state court,
under state authority, for the appropriation of private property to
public purposes so far as to inquire whether that court prescribed
any rule of law in disregard of the owner's right to just
compensation, it may not inquire into matters which do not
necessarily involve, in any substantial sense, the federal right
alleged to have been denied.
The settled rule of this Court in cases for the determination of
the amount of damages to be paid for private property condemned and
taken for public use is that it accepts the construction placed by
the supreme court of the state upon its own Constitution and
statutes.
In case of such condemnation and taking, a state may authorize
possession to be taken prior to the final determination of the
amount of compensation, provided adequate provision for
compensation is made.
As to the court to determine the question, or the form of
procedure, all that is essential is that, in some appropriate way,
before some properly constituted tribunal, inquiry shall be made as
to the amount of compensation, and when this has been provided for
there is that due process of law which is required by the federal
Constitution.
Page 169 U. S. 558
There is no vested right in a mode of procedure established by
state law for the condemnation of property for public use; but each
succeeding legislature may establish a different one, provided only
that in each is preserved the essential element of protection.
An appellate court is not required to set aside the judgment of
the trial court by reason of failure to give instructions which
were not asked for.
The limit of interference by this Court with the judgments of
state courts is reached when it appears that no fundamental rights
have been disregarded by the state tribunals.
The Supreme Court of Michigan was called upon to consider only
such objections as had been particularly specified, and all others
were deemed to have been waived.
The decision by the Supreme Court that it had power to set aside
the verdict and order a new trial was not a reversal of a ruling
that the Circuit Court had no such power.
This Court is bound to accept the construction placed upon the
state statute by the supreme court of the state, and to hold that
it means that if the second appraisal was less than the first, and
the amount of the first had been paid, the company was entitled to
recover the difference from the party to whom it had been paid.
The defendant in error is a corporation 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.Comp. § 3461) provides specifically that the amount of
these damages shall be ascertained
Page 169 U. S. 559
in the same way as is provided in ordinary cases of
condemnation.
The Constitution of Michigan provides:
Article XV, Section 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 VIII, Section 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 vicinity 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 (Act of June 9, 1881, No. 224) 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.Comp., 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
Page 169 U. S. 560
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 proper 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's 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
Page 169 U. S. 561
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
Page 169 U. S. 562
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. 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
Page 169 U. S. 563
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 divested 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,
and thereupon the Depot Company took full possession of the
property, constructed its tracks, and has been ever since in
possession and use of them.
Page 169 U. S. 564
On March 3, 1892, the appeal was argued in the supreme court,
and on June 10, 1892, its decision was announced. 92 Mich. 33. 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
narrowly 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. Whereupon the
plaintiffs below sued out this writ of error.
Page 169 U. S. 565
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Inasmuch as the respondents, both on the trial in the circuit
court and in the subsequent proceedings on the certiorari in the
supreme court, specifically set up and claimed rights under the
federal Constitution which were denied, the jurisdiction of this
Court is not open to doubt. They again and again insisted that
certain provisions of the federal Constitution, which they named,
stood in the way of any further proceedings against them.
It is also not open to further debate, since the decision in
Chicago, Burlington & Quincy Railroad v. Chicago,
166 U. S. 226,
that this Court may examine proceedings had in a state court, under
state authority, for the appropriation of private property to
public purposes so far as to inquire whether that court prescribed
any rule of law in disregard of the owner's right to just
compensation. But in this respect we quote the restriction placed
in the opinion then filed (p.
166 U. S.
246):
"We say, 'in absolute disregard of the company's right to just
compensation' because we do not wish to be understood as holding
that every order or ruling of the state court in a case like this
may be reviewed here, notwithstanding our jurisdiction, for some
purposes, is beyond question. Many matters may occur in the
progress of such cases that do not necessarily involve in any
substantial sense the federal right alleged to have been denied,
and in respect of such matters, that which is done or omitted to be
done by the state court may constitute only error in the
administration of the law under which the proceedings were
instituted."
While in cases of this kind coming from the supreme court of a
state, questions of fact passed upon in the state courts are not
here open to review,
Egan v. Hart, 165 U.
S. 188, and
Page 169 U. S. 566
cases cited in the opinion, it may not be inappropriate to
notice that the award of compensation as finally sustained gave to
the respondents the sum of $63,000. As the valuation they placed
upon the plant, outside of the realty, was only $150,000, and of
the realty the like sum of $150,000, though the realty cost in 1871
less than $30,000, and as none of the ground upon which the plant
stood and the business was carried on was taken by the Depot
Company, but only the use of the street in front thereof, and that
not so as to exclude them from its use, it is obvious that the
award, whether adequate or not, was not one in reckless disregard
of their rights.
It is not questioned by counsel that the settled rule of this
Court in cases of this kind is to accept the construction placed by
the supreme court of the state upon its own constitution and
statutes as correct.
Long Island Water Supply Company v.
Brooklyn, 166 U. S. 685;
Merchants' & Manufacturers' Bank v. Pennsylvania,
167 U. S. 461, and
cases cited in those opinions. His contention, however, is that the
true construction of the constitution and laws of the state, as
settled by repeated decisions of its supreme court, was wholly
disregarded in this case, and that by reason thereof, the
respondents were denied that equal protection of the laws which is
guarantied by the Fourteenth Amendment to the federal Constitution.
His contentions are grouped under the following heads:
"I. They were denied the fundamental right to have an
ascertainment and determination of the amount of compensation and
its final payment before being deprived of their property."
"II. They were denied the protection of that guaranty of the
state constitution providing that the questions of compensation and
necessity should be passed upon by one and the same jury, and of
the settled, uniform, and unreversed construction of the
constitution to that effect by the state judiciary in respect of
all other citizens."
"III. They were denied the protection of a trial on the
questions of necessity and compensation by the tribunal
Page 169 U. S. 567
guarantied by the constitution of the state, in accordance with
the settled, uniform, and unreversed construction of that
constitution in respect of all other citizens."
"IV. They were denied that measure of just compensation for
their property taken, guarantied by the constitutions, federal and
state, as the same was and is accorded to all other persons than
themselves."
"V. They were denied a hearing and deprived of a hearing
guarantied by the constitutions, federal and state, as 'due process
of law,' when summoned into court as appellees to defend their
property, rights, and themselves from imputations upon them."
"VI. Finally, having been deprived of their property sought by
the railroad company for its purposes, their personal assets of the
value of one hundred and ten thousand ($110,000) dollars were taken
from them under the color of a judgment and process unknown to the
Constitution and statutes of Michigan, and unknown to
jurisprudence, whereby they were deprived of their property without
'due process of law.'"
Attention is called to the fact that while upon the return of
the first verdict the respondents moved to confirm it, which motion
was denied by the circuit court, and the verdict set aside, yet
after the decision of the supreme court awarding the writ of
mandamus, they did not renew that motion; that the petitioner alone
asked for confirmation, though, as expressly stated, for the
purpose of taking an appeal to the supreme court; that, after the
order of confirmation had been entered, it paid the amount of the
award to the respondents, which sum was accepted by them, and that
thereupon it took possession of the property, and has since
continued in undisturbed possession and use. It is insisted that
such payment and taking possession created under the Constitution
and statutes of Michigan a finality so far as the Depot Company was
concerned, and that to this effect had been the repeated
adjudications of the supreme court of the state. The argument is
that the property owner has a constitutional right to have the
amount of his compensation finally determined and
Page 169 U. S. 568
paid before yielding possession; that the party seeking
condemnation (in this case the Depot Company) cannot be let into
possession until after all question as to the compensation has been
finally settled, and the amount thereof paid; that it cannot take
advantage of one report or verdict, pay the sum fixed by it, obtain
possession, and still litigate the question of amount; that, if it
does then pay and take possession, its right to further litigate is
ended. But the supreme court of the state held against this
contention, and we must assume therefrom that it is not warranted
by the Constitution and statutes of the state. Indeed, the language
of that constitution is, "made or secured." Does this amount to a
denial of the right to that protection to property which is
guarantied by the Fourteenth Amendment to the federal Constitution?
In other words, is it beyond the power of a state to authorize in
condemnation cases the taking of possession prior to the final
determination of the amount of compensation and payment thereof?
This question is fully answered by the opinions of this Court in
Cherokee Nation v. Southern Kansas Railway, 135 U.
S. 641, and
Sweet v. Rechel, 159 U.
S. 380. There can be no doubt that if adequate provision
for compensation is made, authority may be granted for taking
possession pending inquiry as to the amount which must be paid and
before any final determination thereof.
Neither can it be said that there is any fundamental right
secured by the Constitution of the United States to have the
questions of compensation and necessity both passed upon by one and
the same jury. In many states, the question of necessity is never
submitted to the jury which passes upon the question of
compensation. It is either settled affirmatively by the legislature
or left to the judgment of the corporation invested with the right
to take property by condemnation. The question of necessity is not
one of a judicial character, but rather one for determination by
the lawmaking branch of the government.
Boom Company v.
Patterson, 98 U. S. 403,
98 U. S. 406;
United States v. Jones, 109 U. S. 513;
Cherokee Nation v. Kansas Railway Company, supra.
Neither was there anything in the proceedings actually had
Page 169 U. S. 569
before the last jury and in the circuit court which conflicts
with any mandate of the federal Constitution. Counsel say that the
respondents were entitled to a trial by a jury of inquest, but were
forced to trial before a common law jury, presided over and
controlled by the circuit judge. But the Constitution of the United
States does not forbid a trial of the question of the amount of
compensation before an ordinary common law jury, or require, on the
other hand, that it must be before such a jury. It is within the
power of the state to provide that the amount shall be determined
in the first instance by commissioners, subject to an appeal to the
courts for trial in the ordinary way; or it may provide that the
question shall be settled by a sheriff's jury, as it was
constituted at common law, without the presence of a trial judge.
These are questions of procedure which do not enter into or form
the basis of fundamental right. All that is essential is that, in
some appropriate way, before some properly constituted tribunal,
inquiry shall be made as to the amount of compensation, and, when
this has been provided, there is that due process of law which is
required by the federal Constitution.
Bauman v. Ross,
167 U. S. 548,
167 U. S. 593.
These considerations dispose of all the objections embraced in the
first three contentions of counsel, so far as those objections run
to the validity of the proceedings actually had, providing those
proceedings were warranted by the Constitution and statutes of the
state.
But it is insisted that those proceedings were not so warranted;
that the settled, uniform, and unreversed construction thereof by
the supreme court of the state theretofore forbade them, and hence
there was a discrimination against the respondents, and they were
denied that equal protection of the laws which the federal
Constitution guaranties. Thus, for instance, it is insisted that
the previous rulings of the courts, both trial and supreme, had
been to the effect that a jury called under these condemnation
statutes was a jury of inquest, and not a trial jury, whereas, in
this case, the ruling was practically to the contrary, and the
respondents were compelled to submit their rights to a trial jury,
subject to the control of
Page 169 U. S. 570
the presiding judge, as in ordinary common law cases. We deem it
unnecessary to review the many authorities from the Supreme Court
of Michigan cited by counsel, or determine whether the ruling in
this case as to methods of procedure and the true construction of
the statute is or is not in harmony with prior decisions of that
court. Accepting the contention of counsel that in this case the
supreme court of the state has put a different construction on the
state statutes from that theretofore given and has sustained modes
of procedure different from those which had previously obtained,
still it does not follow that this Court has a right to interfere,
and say that the present ruling is erroneous, and the prior
construction correct, or that the change of construction works a
denial of any fundamental rights. There is no vested right in a
mode of procedure. Each succeeding legislature may establish a
different one, providing only that in each is preserved the
essential elements of protection. The fact that one construction
has been placed upon a statute by the highest court of the state
does not make that construction beyond change. Suppose, it were
true in the fullest sense of counsel's contention, that for a
series of years the courts had ruled that the jury in condemnation
cases was a jury of inquest, or in the nature of a sheriff's jury
-- one determining for itself all matters of law and fact -- and
that in this case, for the first time, they held otherwise, and
that such jury was a common law jury, subject to be controlled by
the presiding judge, whose duty it was to determine all questions
of law, and still, whatever might be thought of the propriety of
such a change of construction, there is in it nothing to justify
this Court in reversing the judgment of the state court and denying
the correctness or validity of this last ruling. We fail to see why
the presence of the judge with this jury, his assumption of power
to control its proceedings, his instructions to it on questions of
law, necessarily vitiated the proceedings. Grant that such a course
had never been taken before; grant that it had never been held to
be a proper proceeding; grant that it was unexpected by counsel --
and yet, if the judge's rulings and instructions were in themselves
correct, and the propriety of
Page 169 U. S. 571
his presence and control be held by the supreme court of the
state warranted by the statutes, we do not perceive that any right
possessed under the Constitution of the United States has been
violated.
The question is not presented of a distinct ruling by a state
court that one party is entitled to certain rights and the benefits
of certain modes of procedure and that another party similarly
situated is not entitled to them. An act of the legislature which
in terms gave to one individual certain rights and denied to
another similarly situated the same rights might be challenged on
the ground of unjust discrimination and a denial of the equal
protection of the laws. But that does not prevent a legislature
which has established a certain rule of procedure and continued it
in force for years from subsequently repealing the act and
establishing an entirely different mode of procedure. In other
words, there is no absolute right vested in the individual as
against the power of the legislature to change modes of procedure.
And a similar thought controls where the courts of the state have
construed a statute as prescribing one form of procedure, and
parties have acted under that construction, and then subsequently
the same court has held that the statute was theretofore
misconstrued, and really provided a different mode of procedure.
This last adjudication cannot be set aside in the federal courts on
the ground of an unjust discrimination or a denial of the equal
protection of the laws.
We, of course, do not mean to affirm that there has been by the
supreme court of the state such a change of adjudication. We simply
in this respect accept the contention of counsel for the
respondents and hold that even if the facts be as claimed by him,
they furnish no ground for interference by this Court. It should be
noticed in passing, however, that nearly all, if not absolutely
all, of the cases which he cites from the Supreme Court of Michigan
arose under the provisions respecting condemnation in the General
Railroad Act, while these proceedings were had under the Union
Depot Act, and although the two acts may be substantially similar,
yet this adjudication is under a different statute from that
Page 169 U. S. 572
under which most, if not all, of the prior decisions were
made.
Passing now to the fourth point: under this, it is claimed that
the trial judge gave to the jury an improper measure of damages.
During the argument of counsel for the respondents this colloquy
took place, as appears from the record:
"Court: A question which arises in my mind is this: there is no
question but what the Backuses are entitled to full compensation
for such damages as they may suffer, but does not the other rule
also attach, and that is that the jury are not in any way to
consider any speculative damages or any probable damages?"
"Mr. Dickinson: They can only consider the damages which are
actually shown, but the other rule follows, may it please your
honor, that they are not to estimate those damages for a year, or
estimate the present injury done by the railroad, but they must
assume that the railroad is running to its maximum capacity, that
it has other railroads, that it may double, treble, or quadruple
its trains, so far as that is concerned, and they must estimate the
damage for the future time not for a year, or three years, or five
years, or ten years."
"Court: That is undoubtedly true to a certain extent, but the
question that I have thought about considerably within the last few
days is in regard to the testimony which was admitted in the case
in regard to their profits -- the profits of their business. Do
they not come within the rule which applies in regard to
speculative damages?"
Afterwards, when the counsel for petitioner was making his
argument, he said:
"In other words, if the court please, the question as to what
business is carried on there, and as to how profitable an
institution it might be, is merely an element to be considered in
establishing the market value of the property."
Upon which the judge made this comment:
"In other words, if a profitable business is carried on in
connection with a certain site, the profitableness of the business
itself must be taken into consideration by the jury in estimating
the value? "
Page 169 U. S. 573
After the arguments were over, the judge charged the jury as
follows:
"Upon this question,
viz., compensation or damages,
what I have to say must necessarily be in a broad and the most
general way. This is a question for you, and, from the very nature
of a proceeding of this character, you are vested with large powers
and great discretion. These powers and this discretion should not
be exercised arbitrarily, nor without proper regard for substantial
justice. You should bear in mind that the greater the power, the
more jealous is the law of its careful exercise and the greater is
the responsibility of the persons vested therewith. You should
exercise a cool, careful, intelligent, and unbiased judgment. The
compensation or damages must be neither inadequate nor excessive,
and your award must not furnish a just inference of the existence
of undue influence, partiality, bias, and prejudice, or
unfaithfulness in the discharge of the duties imposed upon you. You
must, however, remember that the respondents' property is taken, or
its enjoyment interfered with, under the so-called power of eminent
domain -- a power somewhat, and necessarily, arbitrary in its
character -- and that where this is done, the party whose property
is taken or whose enjoyment or use of the property is interfered
with is entitled to full compensation for the injury inflicted.
While the allowance to be made should be liberal, still it must not
be unreasonably exorbitant or grossly excessive. It should be a
fair and liberal allowance, and full and adequate compensation for
the damages inflicted. You should not allow too little, nor should
you allow too much. Your award should be based upon that which is
real, and what is substantial, and not upon what is either
fictitious or speculative. You should look at the conditions of
things as they exist. Under the Constitution and laws, the right to
take another's property for public uses, the power to exercise the
right of eminent domain, is a part of the law of the land; but when
this power is exercised, it can only be done by giving the party
whose property is taken, or whose use and enjoyment of such
property is interfered with, full and adequate compensation -- not
excessive or exorbitant, but just, compensation. "
Page 169 U. S. 574
"I shall not call attention to any particular part of the
testimony in the case. The responsibility of its application and
the weight to be given it rests with you, always regarding that
which is real and substantial and disregarding that which is
fictitious and speculative; treating conditions as they have been
shown and as they are, without speculating as to what might
possibly happen or occur; taking conditions as you find them, and
the natural and probable consequences following such
conditions."
And this was all which was said in reference to the measure of
compensation. Now it is insisted by counsel that the profits which
the manufacturing plant was making were to be taken into
consideration by the jury in awarding compensation, inasmuch as the
business of that plant was seriously interrupted, if not
practically destroyed, by this condemnation; that, inasmuch as the
query was suggested by the judge during the argument whether
profits did not come within the rule as to speculative damages, the
failure to charge distinctly that they were proper subjects of
consideration was equivalent to an instruction that they were not
to be considered, and that therefore the true rule of compensation
was not given to the jury.
It is evident that the judge did not attempt to define the
several elements which enter into the general fact of compensation
or the various matters to be considered by the jury. He simply
charged generally that, as this was an arbitrary taking of the
property of the respondents, they were entitled to full
compensation, and left to the jury the duty of determining what
should be such compensation, telling them plainly that they were
vested with large powers and great discretion. If it be said that
the judge had intimated by his query that the matter of profits
came within the rule applicable to speculative damages, it must
also be noticed that, further on, he suggested that the
profitableness of a business was to be taken into consideration in
estimating the value. It is true he nowhere instructed the jury to
make the profits of the business the criterion of value, nor,
indeed, would he have been justified in so doing. The
profitableness of the business was undoubtedly a matter to be
considered, and so the judge fairly intimated in
Page 169 U. S. 575
these prior colloquies. But the profits of a business are not
destroyed unless the business is not only there stopped, but also
one which in its nature cannot be carried on elsewhere. If it can
be transferred to a new place and there prosecuted successfully,
then the total profits are not appropriated, and the injury is that
which flows from the change of location.
But, beyond this, no special instructions were asked by the
respondents at the time of the giving of the charge. The statute
(section 3466) provides that the judge "may attend said jury, to
decide questions of law." So far as he gave instructions, it is
obvious that he stated that which was the law, and the real
objection is that he did not go further, and enter into a more
minute description of the elements which were to be taken into
consideration by the jury in fixing the amount of compensation;
that they may, from the colloquies which had taken place during the
arguments, have drawn improper inferences as to the limit to which
they were warranted in going, and that those inferences he failed
to correct by specifically stating what matters they should
consider. A sufficient answer is that the respondents did not ask
any further instructions. All they did was to except to what had
been stated. By well settled rules, no appellate court would under
such circumstances be required to set aside the judgment of the
trial court.
Shutte v.
Thompson, 15 Wall. 151,
82 U. S. 164;
Mutual Life Ins. Co. v. Snyder, 93 U. S.
393;
Texas & Pacific Railway v. Volk,
151 U. S. 73;
Isaacs v. United States, 159 U. S. 487.
But a more complete and satisfactory answer is that whatever
error there may have been affords no ground for the interference of
this Court. The respondents were not thereby deprived of any rights
secured by the federal Constitution. They were not denied "due
process of law." The proceedings were had before a duly constituted
tribunal in accordance with the declared law of the state, with
full opportunity to be heard. Nor were they denied "the equal
protection of the laws." The rule as to the necessity of asking
special instructions was administered in this case no differently
than in others.
Marchant v. Pennsylvania Railroad,
153 U. S. 380.
Page 169 U. S. 576
The error, if any there be, was not one "in absolute disregard
of their right to just compensation," but was only error in the
administration of the law under which those proceedings were
instituted. As clearly pointed out in
Chicago, Burlington &
Quincy Railroad v. Chicago, supra, it is not every error
occurring in a state court in the administration of its law
concerning condemnation of private property for public purposes
that opens the door to review by this Court. We are not called upon
to search the record simply to inquire whether there may or may not
have been errors in the proceedings. Our limit of interference is
reached when it appears that no fundamental rights have been
disregarded by the state tribunals.
Under the fifth head, counsel present two matters:
"(1) The denial by the supreme court of the state of a hearing
on the substantial and essential question of whether counsel for
plaintiffs in error abused their privilege as counsel by arguing to
the jury on the question of necessity that the margin of the depot
grounds that belonged to the Michigan Central road could be taken
for the elevated structure, and (2) the reversal of the unanimous
judgment of the supreme court of the state in 89 Mich. 209, without
a rehearing, by the judgment in 92 Mich. 33."
With reference to the first, it is enough to say that the
respondents did not appeal to the supreme court, and that, under
section 3468, it would seem that that court was called upon to
consider only such objections as had been particularly
specified.
"Either party may appeal, by notice in writing. . . . Such
notice shall specify the objections. . . . The supreme court shall
pass on such objections only, and all other objections, if any,
shall be deemed to have been waived."
No objection to the finding of the jury as to the question of
necessity had been made by the appellant, and therefore was to be
treated as waived. Under those circumstances, it cannot be said
that the supreme court deprived the respondents of any rights by
refusing to hear counsel in respect to the question of necessity or
connected with its determination.
With regard to the second, technically, the decision on the
mandamus proceeding and that on the appeal did not conflict.
Page 169 U. S. 577
The writ of mandamus directed the circuit judge to set aside the
order which he had entered vacating the award. It thus in effect
declared that that judge ought not to have made such an order. On
the appeal, the supreme court itself ordered that the award be set
aside and a new jury impaneled, and remanded it to the circuit
court for such new appraisal. This is within the letter of the
statute (§ 3468): "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 decision by the supreme court that it
had power to set aside the verdict and order a new appraisal was
not a reversal of a ruling that the circuit court had no such
power, although it may suggest consequences somewhat singular.
Appreciating that fact, in the last opinion, the court declared
that in the former decision its language restricting the power of
the circuit court had been too strong.
Coming, now to the last point, the supreme court held that as
upon the second appraisal, the damages were less than those awarded
on the first, and the amount of the first had been paid to the
respondents, the petitioner was entitled to a judgment for the
difference. The language of the statute (§ 3468) is:
"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."
It may be that this language is not entirely apt, for in this
case, the party appealing was not the landowner, but the Depot
Company, and so it cannot be said that judgments were rendered
against "the party appealing." But the true intent of the statute
is obvious, and at any rate we are bound to accept the construction
placed upon it by the supreme court, and hold that it means that if
the last appraisal was less than the first, and the amount of the
first had been paid, the company was entitled to recover the
difference from the party to whom it had been paid. Nothing is
said, it is true, in the statute about execution, but the supreme
court ruled that under the general statutes, the recovery of the
judgment carried with it a right to an execution.
Page 169 U. S. 578
These are all the questions in this case. We find nothing in
them which justifies an interference by this Court with the
proceedings of the state courts -- nothing in which it can be said
that any ruling of those courts was in absolute disregard of the
respondents' right to compensation. The judgment must therefore
be
Affirmed.
MR. JUSTICE HARLAN, dissenting.
Did the trial court prescribe any rule of law for the guidance
of the jury that was in absolute disregard of the right of the
plaintiffs in error to such compensation?
In
Chicago, Burlington & Quincy Railroad v.
Chicago, 166 U. S. 226,
166 U. S. 241,
it was held that
"a judgment of a state court, even if it be authorized by
statute, whereby private property is taken for the state or under
its direction for public use without compensation made or secured
to the owner is, upon principle and authority, wanting in the due
process of law required by the Fourteenth Amendment of the
Constitution of the United States, and the affirmance of such
judgment by the highest court of the state is a denial by that
state of a right secured to the owner by that instrument."
Before proceeding with his argument to the jury, Mr. Dickinson,
the attorney for the plaintiffs in error, called the attention of
the trial court to some of the principles which in his judgment
should control the ascertainment of the just compensation to which
they were entitled. Addressing the court in the presence of the
jury, he said:
"Now as to what is compensation, I refer your honor to the case
of
Grand Rapids & Indiana Railroad v. Heisel, 47 Mich.
398:"
"It need hardly be said that nothing can be fairly termed
compensation which does not put the party injured in as good a
condition as he would have been if the injury had not occurred.
Nothing short of this is adequate compensation. In the case of land
actually taken, it includes its value, or the amount to which the
value of the property from which it is taken is depreciated, and in
Jubb v. Hull Dock Co., 9 Q.B. 443, it was held, where the
property taken was a brewery in
Page 169 U. S. 579
operation, the damages included the necessary loss in finding
another place of business. In cases where damage is by injury aside
from the actual taking of property, the rule has been to make the
party whole as nearly as practicable, and where it affected the
rental value or enjoyment, the same principle has been applied as
in other cases. There is no reason, and, so far as we can discover,
no law, which allows the wrongdoer to cast any portion of an actual
and appreciable loss on the party whom he injures. [In this case,
the same rule of damages would apply as in the
Grand Rapids
Indiana case, and the suit was brought for damages, and the
question was what was compensation.] In such a case as this, it is
in the power of the company, and always has been, to have the
compensation settled once for all, and to get any benefit which the
law attaches to such a method of ascertainment. Until this is done,
the possession is a continual wrong."
At this point, the court interrupted the argument of counsel
with this observation:
"A question which arises in my mind is this: there is no
question but what the Backuses are entitled to full compensation
for such damages as they may suffer; but does not the other rule
also attach, and that is that the jury are not in any way to
consider any speculative damages or any probable damages?"
To this, counsel made the following response:
"They can only consider the damages which are actually shown,
but the other rule follows, may it please your honor, that they are
not to estimate those damages for a year, or estimate the present
injury done by the railroad, but they must assume that the railroad
is running to its maximum capacity, that it has other railroads,
that it may double, treble, or quadruple its trains, so far as that
is concerned, and they must estimate the damage for the future
time, not for a year, or three years, or five years, or ten
years."
The court then said:
"That is undoubtedly true to a certain extent, but the question
that I have thought about considerably within the last few days is
in regard to the testimony which was admitted in the case in regard
to their profits -- the profits of their business. Do they not come
within the rule which applies in regard to speculative damages?
"
Page 169 U. S. 580
Counsel then observed:
"Not at all, your honor. If the profits are shown, and the
business is destroyed, you can only show it by the effect upon the
business, and upon that point I call your honor's attention to the
unanimous opinion of the supreme court delivered by Mr. Justice
Campbell in the case of
Grand Rapids & Indiana Railroad v.
Weiden, 70 Mich. 393:"
"Under our constitution, there is never any presumption that a
railroad is necessary, or that any particular land ought to be
given up to its uses. Every landowner therefore has a perfect right
to object to giving up his land, and is not confined to objections
depending upon price or value. And a road already established has
no better claim than any other to extend or change its lines.
Although railroads are allowed by public policy to condemn lands,
because they cannot exist otherwise, nevertheless the enterprise
is, under our laws, which prohibit public ownership of railways,
one of private interest and emolument, and must show its claims to
legal assistance."
"Now upon the question of profits:"
"We are bound to see that parties are not deprived of their
property without necessity, or without full compensation for being
compelled to relinquish it. And while respect is due to the honest
action of juries, it is not conclusive, and is subject to
comparison with the facts in the record. Both of the appellants
were using their property in lucrative business in which the
locality and its surroundings had some bearing on its value. Apart
from the money value of the property itself, they were entitled to
be compensated so as to lose nothing by the interruption of their
business and its damage by the change. A business stand is of some
value to the owner of the business, whether he owns the fee of the
land or not, and a diminution of business facilities may lead to
serious results. There may be cases when the loss of a particular
location may destroy business altogether for want of access to any
other that is suitable for it. Whatever damage is suffered must be
compensated. Appellants are not legally bound to suffer for
petitioner's benefit. Petitioner can only be authorized to oust
them from their possessions by making up to them the whole of their
losses."
"That goes directly upon the question which
Page 169 U. S. 581
your honor suggests. Now I shall not take time to refer to the
other cases."
I cannot doubt, from what passed between the court and counsel
in the presence of the jury, that the court meant to characterize
profits from the business of the parties owning the real estate as
speculative damages.
After the counsel for the parties concluded their argument to
the jury upon the whole case, the trial judge delivered a carefully
prepared charge in which he said:
"The question, and the only question, before you for your
determination is that of compensation, and of compensation only.
Your duty, and your only duty, is to ascertain and determine what
compensation or damages ought justly to be paid by the Fort Street
Union Depot Company to the respondents for the real estate,
property, franchises, easements, and privileges described in the
petition,
viz.: 1. The amount to be allowed to Absalom
Backus, Jr., as the owner of the fee of the land described; 2. the
amount to be allowed to A. Backus, Jr. & Sons, a corporation,
as tenants in possession of such lands. Upon this question,
viz., compensation or damages, what I have to say must
necessarily be in a broad and the most general way. This is a
question for you, and, from the very nature of a proceeding of this
character, you are vested with large powers and great discretion.
These powers and this discretion should not be exercised
arbitrarily, nor without proper regard for substantial justice. You
should bear in mind that the greater the power, the more jealous is
the law of its careful exercise and the greater is the
responsibility of the persons vested therewith. You should exercise
a cool, careful, intelligent, and unbiased judgment. The
compensation or damages must be neither inadequate nor excessive,
and your award must not furnish a just inference of the existence
of undue influence, partiality, bias and prejudice, or
unfaithfulness in the discharge of the duties imposed upon you. You
must, however, remember that the respondents' property is taken, or
its enjoyment interfered with, under the so-called power of eminent
domain -- a power somewhat, and necessarily, arbitrary in its
character -- and that where this is done, the party whose property
is taken
Page 169 U. S. 582
or whose enjoyment or use of the property is interfered with is
entitled to full compensation for the injury inflicted. While the
allowance to be made should be liberal, still it must not be
unreasonably exorbitant or grossly excessive. It should be a fair
and liberal allowance, and full and adequate compensation for the
damages inflicted. You should not allow too little, nor should you
allow too much. Your award should be based upon that which is real,
and what is substantial, and not upon what is either fictitious or
speculative. You should look at the conditions of things as they
exist. Under the Constitution and laws, the right to take another's
property for public uses, the power to exercise the right of
eminent domain, is a part of the law of the land; but when this
power is exercised, it can only be done by giving the party whose
property is taken, or whose use and enjoyment of such property is
interfered with, full and adequate compensation -- not excessive or
exorbitant, but just, compensation."
Is it not clear that the trial judge, while indulging in very
general language as to the duty of the jury not to allow too much
or too little compensation, gave the jury to understand that
compensation was to be ascertained upon the basis only of the
ownership by Absalom Backus, Jr., of the fee in the land described,
and of the rights of A. Backus, Jr. & Sons as tenants in
possession, excluding damages to the business of the plaintiffs in
error, which would arise from the condemnation of their property
rights? The jury were in effect instructed that the profits derived
by them from their business were to be excluded from consideration
as being "fictitious or speculative."
That he was so understood by counsel for the plaintiffs in error
is manifest from the circumstance that, immediately upon the
charge's being concluded, he made the following exceptions to
it:
"We except to that part of the charge of the court wherein he
says that the damages are to be confined to the damage to the real
estate described and the improvements upon it, whereas, in our
view, the damages are to the entire plant, including the injury to
the business from the impairment of the mill, as affecting its
adjuncts, the lumber yard, and
Page 169 U. S. 583
the storehouse. . . . To what is said by the court as to
avoiding the giving of speculative damages, in view of what has
been said before by the court in regard to taking into
consideration the profits, I refer to what has been said upon the
records in the course of the testimony and upon the argument
expressing the views of the court against taking into consideration
the profits. We except to the refusal of the court to charge as I
requested, in the language or in the substance, according to the
decisions of the supreme court which I read in full upon the
opening of my argument and called attention of the court to it
especially -- to the expression of Campbell, J., in delivering the
opinion of the court in
Indiana Railroad v. Weiden, 70
Mich. 395, 396."
If the trial judge did not intend to say to the jury that injury
to the business of the plaintiffs in error was to be deemed
speculative, and therefore to be excluded from consideration, he
would instantly have said that no such impression was intended to
be made as that indicated by the exceptions taken to his
charge.
The views expressed by counsel for the plaintiffs in error as to
the principles which should guide the jury in the matter of
compensation were sustained by the authorities. In addition to the
cases in 47th and 70th Mich. above referred to, reference may be
made to many others decided by the Supreme Court of Michigan.
In
Commissioners v. Chicago &c. Railroad, 91 Mich.
291, which was a case of the condemnation of the lands of a
railroad company, that court said:
"If, therefore, their adjoining land is rendered less valuable
by the location of a public highway, or another railroad across its
property, there is no reason why they should not recover
compensation therefor. Situated near this crossing is a small tract
of land used for warehouse purposes. It is insisted by the
respondents that, by reason of this crossing, this land, with the
warehouse thereon, is rendered less available and less valuable for
the purposes for which it was constructed and used. This was a
proper element of damage, and should have been submitted to the
jury."
At the same term, the court, in
Commissioners v.
Moesta,
Page 169 U. S. 584
91 Mich. 154, quoted with approval what had been said in
Grand Rapids Railroad Co. v. Weiden, 70 Mich. 395,
saying:
"The constitutional provision entitling the owner of private
property taken for public use to just compensation has uniformly
been construed to require full and adequate compensation. The rules
to be applied in fixing the compensation are not necessarily the
same as obtain in fixing damages in actions upon contracts. The
correct rule of compensation in such cases is more nearly analogous
to the remedy afforded in an action in tort in which property
rights have been interfered with without the owner's assent. In
such cases, damages for the interruption of the owner's business
are allowed.
Allison v. Chandler, 11 Mich. 549."
In
City of Detroit v. Brennan, 93 Mich. 338, the court
reaffirmed the doctrine of the former cases, that the full measure
of compensation and the injury done to the business should be
allowed, and said:
"The law considers the rights of the property and business
carried on by the respondent as of equal consideration, and
entitled to as much protection, as the right of the city to take
the property and interfere with the business, and will not permit
the property to be taken and the business to be interfered with
unless an actual public necessity exists for the making of the
improvement. . . . The elements of damages are: (1) the value of
the property taken for the opening of the street; the injury to the
works and property not taken, and left in the parcel of land from
which the property is taken; (2) the injury to the business of the
owner; (3) compensation for all prospective loss or injury
resulting from the opening of the street, and the taking of the
property for that purpose."
See also Grand Rapids &c. Railroad v. Chesebro, 74
Mich. 466, where the court said:
"An owner has a right to be indemnified for anything that he may
have lost. The farming test, which is the one petitioner sought to
apply, would be of no particular use in a great many cases of
suburban lands. . . . The mere taking of four acres for a right of
way could not be regarded in any sensible point of view as
compensated by one-tenth of the value of the forty acres, taking
acre for acre.
Page 169 U. S. 585
The damages in such a case must be such as to fully make good
all that results, directly or indirectly, to the injury of the
owners in the whole premises and interests affected, and not merely
the strip taken."
Further:
"The jury here, as in all cases where no certain measure exists,
must trust somewhat to their own judgment. That is one of the
purposes for which juries of inquest are provided. They are
expected to view the premises and use their own senses. . . . But
the purpose throughout is to give all the damages which they
reasonably discover, past or present, and to result, but no more.
No one can read this record without seeing that the jury did not
deal fully with the case. It is manifest that they gave no damages
beyond what they assumed to be the price of four acres by the acre.
. . . It cannot be said there is any real conflict as to the
damages arising from the cutting off one part from the other of the
forty acres, and this was left out altogether, unless they regarded
the proofs of value wantonly, which we cannot believe."
See also Pearsall v. Supervisors, 74 Mich. 561;
Barnes v. Michigan Air Line, 65 Mich. 251;
Grand
Rapids &c. Railroad v. Railroad, 58 Mich. 641, 648;
Toledo &c. Railway v. Detroit &c. Railroad, 62
Mich. 564;
Commissioners v. Chicago Railroad, 91 Mich.
291;
Commissioners v. Chicago &c. Railroad, 90 Mich.
385;
City of Grand Rapids v. Bennett, 106 Mich. 529.
Without referring to other matters discussed at the bar and in
the elaborate brief of counsel, I place my dissent from the opinion
and judgment of the court upon the ground that the trial court
committed error in its charge to the jury as to the principles
which should guide them in determining the just compensation to
which the plaintiffs in error were entitled. The rules laid down by
the Supreme Court of Michigan as to what was just compensation
were, I think, in accord with the principles that obtain in the
courts of the Union when determining the just compensation to be
made for private property taken for public use.
MR. JUSTICE BROWN took no part in the decision of this case.
