« ZurückWeiter »
constitution, and to institute and prosecute proceedings for that
purpose. How and when SEC. 2. Such proceedings may be commenced and prosecuted
under this act, whenever the common council or board of trustees shall have declared a public improvement to be necessary in the municipality, and shall declare that they deem it necessary to take private property, describing it, for such public improvement, desig
nating it, and that the improvement is for the use, or benefit, of City or village. the public. They shall, by resolution, direct the city or village attorney to insti. tute proceedings. attorney to institute the necessary proceedings in behalf of the
municipality, in the proper court, to carry out the object of the
resolution in regard to taking private property by the city or vilJurisdiction of lage. Jurisdiction is hereby conferred upon the circuit court for circuit courts.
the county in all cases brought under this act: Provided, That in I'roviso. cities having a recorder’s court, the proceedings shall be instituted
and prosecuted in that court, and in cities having a superior court, and no recorder's court, such proceedings shall be instituted and
prosecuted in such superior court. Petition to be SEC. 3. The city or village clerk shali make and deliver to such Dled by attorney. attorney, as soon as may be, a copy of such resolutions, certified
under seal, and it shall be the duty of such attorney, to prepare and file in the name of the city or village, in the court having jurisdiction of the proceeding, a petition signed by him in his official character, and duly verified by him, or by some person having knowledge of the facts; to which petition a certified copy of the resolutions of the common council, or board of trustees, shall be annexed, which certified copy shall be prima facie evidence of the action taken by the common council or the board of trustees,
and of the passage of said resolutions. The petition shall state, What petition among other things, that it is made and filed as commencement of
judicial proceedings by the municipality, in pursuance of this act, to acquire the right to take private property for the use or benefit of the public, without consent of the owners for a public improvement, designating it, for a just compensation to be made. A description of the property proposed to be taken shall be given, and generally the nature and extent of the use thereof, that will be required in making and maintaining the improvement, shall be stated, and also the names of the owners, and others interested in the property, so far as can be ascertained, including those in possession of the premises. The petition shall also state that the common council, or board of trustees, has declared such public improvement to be necessary, and that they deem it necessary to take the private property, described in that behalf, for such improvement, for the use or benefit of the public. The petition shall ask that a jury be summoned and em paneled to ascertain and determine whether it is necessary to take such private property, as it is proposed to take, for the use or benefit of the public, and to ascertain and determine the just compensation to be made therefor. The petition may state any other pertinent matter or things, and may pray for any other or further relief, to which the municipality may be entitled, within the object of this act.
SEC. 4. Upon receiving such petition, it shall be the duty of the Clerk to issue clerk of said court to issue a summons against the respondents named in such petition, stating briefly the object of said petition, and commanding them, in the name of the people of the State of Michigan, to appear before said court, at a time and place to be named in said summons, not less than twenty nor more than forty days from the date of the same, and show cause, if any they have, why the prayer of said petition should not be granted.
Sec. 5. Said summons shall be served by the sheriff, under sheriff, Service of or a deputy sheriff, of the county, at least five days before the return day thereof, upon all the respondents found within the county, by exhibiting the original, and delivering a copy to each of them. If any respondent, who is a resident of the county, cannot be found, the summons shall be served by leaving a copy thereof at his or her usual, or last place of abode, with some person of suitable age and discretion. If any minor, or person of unsound mind, is interested When minor or in the premises to be taken, service may be made upon the guar- sound mind is dian of such person, if any, and if there is no guardian the court interested. may appoint some discreet and proper person, to be guardian for such person, in such proceedings; any such guardian shall have authority to represent such person in said proceedings. The proceedings to appoint such guardian shall be the same as in other cases provided by statute. If it shall appear on the return day of When respondthe summons that any respondent cannot be found in the county, resident." and has not been served in the manner provided, or is a non-resident, and has not voluntarily appeared, the court may make an order requiring such respondent, or respondents, to appear and show cause why the prayer of the petition should not be granted, on a day to be named in the order, not less than thirty days from the date thereof, and may require that a certified copy of such order be personally served upon such respondents wherever found, if practicable, at least six days before the time named in the order for appearance; or the court may make such order for appearance, and Service by require, as to any or all such non-resident respondents who shall not have been served, and have not appeared, that service be made by publishing a certified copy of such order, for three successive weeks, at least once in each week, in at least one newspaper published within the municipality, if there be one, and if not, then in a paper published in the county, the last publication to be at least six days before the day fixed in the order for appearance. Alias and Alias and pluries pluries summons may be issued, and the court may adjourn the proceedings from time to time, as there shall be occasion, and as in other civil cases. Service of such order for appearance, in either mode prescribed, shall be sufficient notice of the proceedings to bind the respondents and the property represented by them. The Return of return of the officer upon the summons, and an affidavit of the due service, or publication of the order for appearance, if any, shall be filed in the clerk's office before a jury shall be empaneled, and be sufficient evidence of service on the respondents and of the manner of service.
person of an
ent is & non
Empaneling a jury.
Sec. 6. On the return day of the summons, or on some subsequent day to which the proceedings are adjourned, if no sufficient cause to the contrary has been shown, the court shall make an order that a jury be empaneled in the cause. Such jury shall be composed of twelve freeholders of the the municipality, and shall be selected and empaneled as follows: The sheriff, under sheriff, or a deputy sheriff of the county, shall, on the same day, or at an adjourned day, make a list of twenty-four resident freeholders of said city, or village, and the city or village attorney, in person, or by an assistant or deputy, and the respondents collectively, shall each have the right to strike six names from the list of persons written down as aforesaid, and, subject to objection for cause, the twelve persons whose names are left on the list shall compose the jury for the trial of the cause, and shall be summoned to attend at such time as the court shall direct, by a venire issued by the clerk of the court, and to be served by one of the officers aforesaid. If the respondents neglect or refuse to strike six names from said list, it shall be done by the judge of the court, and in case any of the persons to be summoned cannot be found in the county, or being summoned do not attend, or shall be excused for cause, or otherwise, talesmen possessing the necessary qualifications, may be summoned as jurors in the case, by such sheriff, or sheriff's officer, or authorized person, and the practice and proceedings under this act, except as herein provided, relative to empaneling, summoning, and excusing jurors and talesmen, and imposing penalties or fines upon them for non-attendance, shall be the same as the practice and proceedings of the circuit courts of the State, relative to petit jurors in civil cases, in such courts, except that peremptory challenges shall not be allowed.
SEC. %. The jurors so empaneled shall be sworn, or shall affirm in substance as follows: You do solemnly swear, or affirm, that you will well and truly ascertain and determine whether there is necessity for taking for the use or benefit of the public, the private property which the petition describes and prays may be taken, and if you shall determine that it is necessary to take said property, that then you ascertain, determine, and award the just compensation to be made therefor, and faithfully and impartially discharge all such other duties as devolve upon you in this case, and unless discharged by the court, a true verdict give according to law and the evidence, so help you God, or under the pains and penalties of perjury. The jury shall hear the proofs and allegations of the parties, and, if so ordered by the court, shall go to the place of the intended improvement, in the charge of an officer, and upon, or as near as practicable to, any property proposed to be taken, and examine the premises. They shall be instructed as to their duties, and the law of the case, by the judge of the court, and shall retire under the charge of an officer, and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing, and be signed by the foreman, or by all the jurors.
Sec. 8. The jury shall determine in their verdict the necessity for taking such private property for the use or benefit of the public for
Oath of jurors.
Jury to hear proofs and allegations.
To receive instructions in law.
What verdict to determine
the proposed improvement, and in case they find that such necessity exists they shall award to the owners of said property and others interested therein such compensation therefor as they shall deem jast. If any such private property shall be subject to a When property mortgage, lease, agreement, or other lien, estate, or interest, they shall apportion and award to the parties in interest such portion of the compensation as they shall deem just.
SEC. 9. To assist the jury in arriving at their verdict the court Jury may take may allow the jury, when they retire, to take with them the peti- pura tion filed in the case and a map showing the location of the proposed improvement and of each and all the parcels of property to be taken, and may also submit to them a blank verdict which may be as follows:
p etition, etc.. to jury room.
PART I. We find that it is............ necessary to take the private prop- Blank verdict. erty described in the petition in this cause, for the use and [or] benefit of the public, for the proposed public improvement.
PART II. The just compensation to be paid for such private property we have ascertained and determined, and hereby award as follows:
Description of each of thelo. several parcels of priva
Owners, occupants, and others property to be taken.
interested in each parcel.
To whom payable.
The different descriptions of the property and the names of the occupants, owners, and others interested therein, may be inserted in said blank verdict, under the direction of the court, before it is submitted to the jury, or it may be done by the jury.
SEC. 10. The verdict of the jury may be set aside by the court Setting aside and a new trial ordered as in civil suits at law in the circuit courts verdict. of this State. Amendments either in form or substance may be Amendments. allowed in any paper, petition, process, record, or proceeding, or in the description of property proposed to be taken, or the name of any person, whether contained in a resolution passed by the common council, or board of trustees, or otherwise,'whenever the amendment will not interfere with the substantial rights of the parties. Any such amendment may be made after as well as before judgment confirming the verdict of the jury. . SEC. 11. Motions for a new trial or to arrest the proceedings shall Motions for new
trial, etc. be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is confirmation made, or being made is overruled, the court shall enter an order or of
Duty of clerks on appeal.
learing on appoals.
judgment confirming the verdict of the jury; and such judgment of confirmation, unless reversed by the supreme court, shall be final and conclusive as to all persons interested therein.
SEC. 12. Any person whose property may be taken, considering himself aggrieved, may appeal from the judgment of the court confirming the verdict of the jury by filing in writing with the clerk of said court a notice of such appeal within five days after the confirmation, and within the same time serving a copy thereof on the city or village attorney, and filing a bond in said court, to be approved by the judge thereof, conditioned for the prosecution of said appeal to judgment and the payment of all costs, damages, and expenses that may be awarded against him, in case the judgment of confirmation shall be affirmed. Such appeal shall be perfected within the same time, and prosecuted as an appeal in chancery, as near as may be, subject to the provisions of this act.
SEC. 13. In case of such appeal the clerk of the court, on payment of his legal fees and charges, shall transmit to the supreme court a certified copy of the necessary files, records, and proceedings in the case; and the judge of the court shall, at the request of the appellant, settle a case according to the usual practice of said court, showing the material evidence and instructions given to the jury bearing upon any disputed points to which exception was taken, and the objections, rulings, and exceptions in the case, all of which shall be returned by said clerk as part of the records, to the clerk of the supreme court.
SEC. 14. The said appeal may be brought on for a hearing at any term of the supreme court, and said court may affirm, or for any substantial error reverse, the judgment and may grant a new trial. The said court shall allow the prevailing party his reasonable costs and expenses to be taxed, and give judgment as in other chancery appeals, and all costs, damages, and expenses awarded to the city or village, if it so elect, may be applied on or deducted from the compensation, if any, to be paid, or execution may issue on the judgment. Damages may be awarded against a party appealing without reasonable cause.
SEC. 15. When the verdict of the jury shall have been finally confirmed by the court, and the time in which to take an appeal has expired, or, if an appeal is taken, on the filing in the court below of a certified copy of the order of the supreme court, affirming the judgment of confirmation, it shall be the duty of the clerk of the court to transmit to the common council or board of trustees a certified copy of the verdict of the jury, and of the judgment of confirmation, and of the judgment, if any, of affirmance; and thereupon, the proper and necessary proceedings, in due course, shall be taken for the collection of the sum or sums awarded by the jury. If the common council or board of trustees believe that a portion of the city or village, in the vicinity of the proposed improvement, will be benefited by such improvement, they may, by an entry in their minutes, determine that the whole or any just portion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed to be thus benefited ; and
Clork to trans.
mit certified copy of proceedings.