Backus v. Fort St. Union Depot Company/Dissent Harlan

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, B & Q. R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 Sup. Ct. 581, 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 o urt 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 & I. R. Co. v. Heisel, 47 Mich. 398, 11 N. W. 215: '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. Dock Co., 9 Q. B. 443, it was held, where the property taken was a brewery in 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 & I. R. Co. 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?' 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 Railroad Co. v. Weiden, 70 Mich. 393, 38 N. W. 295: '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 thana ny 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 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, 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 unreasoa bly 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. Back-us, 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 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 the store house. * *  * 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 Railroad Co. v. Welden, 70 Mich. 395, 396, 38 N. W. 294.'

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 47 and 70 Mich., above referred to, reference may be made to many others decided by the supreme court of Michigan.

In Commissioners of Parks & Boulevards of City of Detroit v. Chicago, D. & C. G. T. J. R. Co., 91 Mich. 291, 51 N. W. 934, 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 a rehouse 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, 91 Mich. 154, 51 N. W. 905, quoted with approval what had been said in Railroad Co. v. Weiden, 70 Mich. 395, 38 N. W. 294, 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, 53 N. W. 525, 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, Railroad Co. v. Chesebro, 74 Mich. 466, 42 N. W. 69, 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. 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, 42 N. W. 77; Barnes v. Railway Co., 65 Mich. 251, 32 N. W. 426; Grand Rapids v. Grand Rapids & I. R. Co., 58 Mich. 641, 648, 26 N. W. 159; Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. Co., 62 Mich. 564, 29 N. W. 500; Commissioners of Parks & Boulevards of City of Detroit v. Chicago, D. & C. G. T. J. R. Co., 91 Mich. 291, 51 N. W. 934; Commissioners of Parks & Boulevards of City of Detroi v. Michigan Cent. R. Co., 90 Mich. 385, 51 N. W. 447; City of Grand Rapids v. Bennett, 106 Mich. 529, 64 N. W. 585.

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.