Petition for Writ of Certiorari — Fagerman v. Michigan Department of Transportation

| \ Supreme @eurt, U.S.

FILED

03 38378 AUG 28 2003

NO. opie @& THE CLERK

In The

Supreme Court of the Gnited States

Carl Edwin Fagerman & Bertha Louise Fagerman

Petitioner(s)

V.

Michigan Department of Transportation

Respondent(s)

On Petition For Writ of Certiorari

To The Michigan Supreme Court

PETITION FOR WRIT OF CERTIORARI

Carl Edwin Fagerman

Bertha Louise Fagerman

9107 E30 RD

Cadillac, MI 49601

(231) 775-6390

QUESTIONS PRESENTED FOR REVIEW

. What is the nature of the rights, privileges and

immunities conveyed by the United States from the

public lands in land patents and warrants, specifically

prior to March 5, 1875, as they relate to Michigan's

sovereign power of eminent domain?

. Is the Michigan Uniform Condemnation Procedures

Act unconstitutional?

. How far can our "due process" rights and the laws of

our state be bent by the Michigan Department of

Transportation under the power of eminent domain

while remaining constitutional?

PARTIES TO THE PROCEEDINGS

In addition to the parties identified in the caption, Anita

Louise Fagerman and Mark Raymond Fagerman are parties

to the case.

Anita Louise Fagerman Mark Raymond Fagerman

9107 E30 RD 8823 E30 RD

_ Cadillac, MI 49601 Cadillac, MI 49601

The constitutionality of an Act of Congress is being drawn

into question, and therefore the Solicitor General is a party.

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Ave. NW

Washington, DC 20530-001.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. .................... ii

PARTIES TO THE PROCEEDINGS........0.....0.0.ccccccoese ill

FABLE OF CONTENTS .......:ccssscsvssososossccssosescosessasesessssess iv

TABLE OF CITED AUTHORITIES..........0..0.0.0.ccccccce Vii

OPINIONS AND JUDGMENTS BELOW........00000.0000...... l

IEEE sanichrhcstesrvteninininsoenssanssarsennnnressesactnpnsvonsvercess l

CONSTITUTION & STATUTES INVOLVED................ l

STATEMENT OF THE CASE ................cccccccsccsssssssssscesesees 2

REASON FOR GRANTING WRIT ...0.0......c.cccccccccsseeseseeeee 4

I. THE COURT SHOULD RESOLVE THE NATURE

OF THE RIGHTS, PRIVILEGES AND IMMUNITIES

PASSED WITH LAND PAT’ NTS AND WARRANTS

ISSUED PRIOR TO MARCH 5, 1875...0........cccccccccseeees 6

A. The Property Clause empowers Congress to

selectively retain or grant sole sovereignty over

public lands patented or granted to private parties.

B. All land patents issued prior to March 5, 1875

passed absolute title to the patentee and no state

acquired the power to condemn such property.

Only the United States has the power of eminent

domain over the property so passed....................... 1]

C. The patent issued with "all rights, privileges, and

immunities, of whatsoever nature" forbid Michigan

from obtaining the power of eminent domain over

SUIT isaac nina eseninnaidicdssetuenioumantsnunssesaninn 16

II. THE COURT SHOULD DETERMINE THE

CONSTITUTIONALITY OF THE MICHIGAN

UNIFORM CONDEMNATION PROCEDURES ACT,

SITTIN aisle inciiniesetescsspenniaconparoniennenetinesannionneeses 16

A. The Michigan Constitution solidifies the right to

trial by jury for the determination of necessity, yet

the UCPA forbids us that right......0..0.0000000.0..0.. 17

B. The Michigan Constitution solidifies the right to

trial by a jury of 12 freeholders for the

iv

determination of just compensation, yet the UCPA

limits us to a jury of 6 qualified electors."........... 18

C. The Michigan Constitution requires the court to

determine if a taking is "authorized by law," yet

the UCPA places the burden of proof on the

property owner to show fraud, error of law, or

abuse Of discretion................csccrcccsccsscssscesersereosnnees 20

D. The title-object clause of the Michigan

Constitution requires the contents of a law to be

expressed in the title of the law, yet the title to the

UCPA does not include all of its content................ 21

E. The title-object clause of the Michigan

Constitution requires only one object to be

expressed in the law, yet the UCPA expresses two.

sshaseintememaialeia TI. WEA AERO 7

F. The Michigan Constitution restricts any general

revisions of laws and mandates altered and

amended laws to be re-enacted and published at

length, yet the UCPA revised several laws without

fulfilling these constitutional requirements. .......... 24

Ill. THE COURT SHOULD SOLIDIFY THE

DYNAMIC NATURE THAT LAWS ARE APPLIED

TO STATES WHEN CONCERNING THE

SOVEREIGN POWER OF EMINENT DOMAIN. .... 25

A. An order upholding the validity of the

~ condemnation proceeding must be entered to

preclude appellate review of the proceedings........ 26

B. The payment of just compensation cannot be

conditioned upon the release of a signed W-9 and

Michigan's constitutional provision violates US

Comst, Amend V., q......00c.cccccsscoccccccccsnsccccsnsccocesnecooses 27

C. The return of the award for just compensation to

MDOT by the lower court voids MDOT's

condemnation efforts, and MDOT is now liable for

trESPASS-MUISANCE..............cseceeeereereeeeeees seevetelniesiial 28

D. Our property is a cattle farm and the taking

requires a cattle pass to be installed to allow access

from the building side of the taking to the large

land track side of the taking. .......0..0.00........ccccceccceee. 29

eI ciikeicibneisnccstasenaidilnsthisSiiceittieesi anidisieciatiaamtia 29

APPENDIX A: OPINIONS, ORDERS, FINDINGS OF FACT...... I

APPENDIX B: CONSTITUTIONAL PROVISIONS, STATUTES &

aE iiviscincisittincpricsisaiaeltgeiiaaniiiaiinkasianiiteite le ti ee XXIII

APPENDIX C: DATE FEDERAL QUESTIONS WERE RAISED.

sanieindiptiniianiiniinniuanidianiintiddundainreisdedeie leis id iia ein ae LXIII

Vi

TABLE OF CITED AUTHORITIES

Cases

Alan v Wayne County, 200 NW2d 628, 338 Mich 210 (1972),

rehearing denied 202 NW2d 277, 388 Mich 626............. 24

Andrus v Charlestone Stone Products Co., Inc., 98 S Ct 2002,

436 US 604 (1978) ......csscsscesssssssesssessercerenssrsssesessesssssesenes 11

Board of County Road Com'rs for Kalamazoo County v

Docsa, 21 Mich App 546, 175 NW2d 899 (1970),

remanded 384 Mich. 756, 179 NW2d 622 ..........sseeeeees 21

Board of County Road Com'rs, Livingston County v Herbst,

38 Mich App 150, 195 NW2d 894 (1972).......:s:sseeseeees 21

Brewster Street Housing Site in City of Detroit, In re, 291

Mich 313, 289 N.W. 493 (1939) .......sscsscesseeseeeeeseressrseees 19

Cain v Lansing Housing Comm'n, 235 Mich App 566, 599

NW2d 516 (1999)...scsssssecsessssssssssssssessnssnennsenenneenscancnnsesses 28

City of Lansing v Jury Rowe Realty Co, 59 Mich App 316,

229 NW2d 432 (1975)....ccsccssccssssssssseessesseensenseneseersssennsens 21

City of Muskegon v Irwin, 31 Mich App 263, 187 NW2d 481,

(1971). ..scscsssscssssccsssesesssssssesesesssssnensnsnsssnssseneensneneneseneneanenes 21

Cornell University v Fiske, 10 S Ct 775, 136 US 152, (1890)

seasenecesesusdeonegpecenanesmnesnsbcniaaessnssessnitnllsnisanstiiian sisi sinatnneths 13

Dred Scott v Sandford, 60 US 393, 434 (1856)... 7

Dubuque & PR Co v Litchfield, 64 US 66 (1859)........... 5, 16

HJ Tucker & Associates, Inc v Allied Chucker & Engineering

Co, 234 Mich App 550, 559; 595 NW2d 176 (1999)....... 21

Joy v City of St. Louis, 26 S Ct 478, 201 US 332 (1906)....... 4

Kent County Road Com'n v Hunting, 170 Mich App 222, 428

NW2d 353 (1988), appeal demied.............scceeeesneeeneeees 21

Klais v Danowski, 129 NW2d 414, 373 Mich 262 (1964) .. 13

Kleppe v New Mexico, 96 S Ct 2285, 426 US 529 (1976).....9

Lim v Michigan Dept. of Transp. 423 NW2d 343, 167 Mich

App 751 (1988), appeal demied...........s.csssssessssessensnreneneenes 22

Local No 1644 v Oakwood Hosp Corp , 367 Mich 79, 91;

116 NW2d 314 (1962)........sccssssscssecsesseerssscesessenssnenesenes 22

Mitchel v US, 34 US 711 (1835)......csccsseesseeereeseeeeensenenenennnes 5

Vii

National Standard Co v Department of Treasury, 384 Mich

Fe ee ee Fe re iissiictisentiitenniiadactnstiisnatateacneicieeian 21

Oakland Hills Development Corp. v. Lueders Drainage Dist.

537 NW2d 258, 212 Mich App 284 (1995)......ccccceeeseee 23

Odell v Reynolds, 40 Mich 21 (1879) .......ccccccccccscssssseseeseees 18

Oneida Indian Nation v County of Oneida, 414 US 661, 676,

94 S Ct 772, 781, 39 L Ed 2d 73 (1974).....ccccccsscceseseeees Q

People ex rel Trombley v Auditor-General, 23 Mich 471 474

IEpuPey He scaeseseibageainniithecaeelabieansieibetpdinteh cenit Aves 23

People ex rel. Gazlay v Murray , 221 NW2d 604, 54 Mich

NN aida a a a 13

People v Broedell, 112 NW2d 517, 365 Mich 201 (1961)... 5

Pohutski v City of Allen Park (2002) .....cc.cccccccccsesecseeseeeeecees 22

Pollard v. Hagan, 44 US 212 (1845)....cccccccscsssssssesescsessseeees 7

TNE TIE Te HII sine Mhsiiersitssnscistiterieinnieistanidilnisaasionni 15

Ray Twp v B & BS Gun Club, 226 Mich App 724, 728; 575

eee ade kgf RE ATTA SCE CT TR REND 21

United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197,

Se IE TI ceacracicilidlcieuiniassdchiclembdiieiesaieaiebdabiagtereamnatdansan 12

United States v. San Francisco, 310 U.S. 16, 29, 60 S.Ct.

SP 11

US v Chandler-Dunbar Water Pewer Co, 152 F 25 (1907) 16

OS v Jenks, 129 F3d 1348 (1997) ........erccccrcccssccrssscescsssecsees 16

Se Oe Oe ee te CIE staiccscnslliicasnconipitiscoieninensinneeinesnesas 5

US v Union Pac R Co, 77 S Ct 685, 353 US 112 (1957)........ 5

Utah Power & Light Co. v US, 37 S Ct 387, 243 US 389

AEST O Olssdehichishcecanandndisateleas sbakaeaeanabenssledhtadiidaslatadeensaanieibemnie 9

West River Bridge Co v Dix, 47 US 507 (1848) ........cc0000 14

Wilcox v Jackson, 38 US (13 Pet) 498, 10 L Ed 264 (1839) .9

Statutes

iy TITY teshiciinsishhetiaesoheehaiehnbienghtebeieedetenibeaneclisiibaitensledacaibanantsit 7

SRE Eee oes een Ene ]

PE II SIT crs ccsicernctesiceshnctccsesusnpnndvnnciiasenceusininaiioebin 8

PT sci isiciciniuiidtahiilaiiadi alicia thi led i eaca tc 8

FEA Ce TONE aa CE eT 8

CE ag, Be FE OE CI oiseseeinsncctienvessninicenecenensennnn 12

viii

April 24, 1820 Act of Congress ...........sssssesseeseseesesenees passim

August 1, 1888 Act of Congress...........ssssseseeseserseees 10, LXII

July 2, 1862 Act of Comgress..........cscsseseseseeeeserenseseneesneneenes 13

Diba DE, BIDS ceccscccesscccesscesesssocsstonsesorconssesentennsnessonsencssnoess 12

RGatale 3, BETS cneceresecosesccssccceonscenetevesosevesoonnensevesosesosnsnccseusenss 10

Dhar 3, BODE noncvscrcsccveccecscesscssccsvncrasonenreessensonsenessnescesonsons 15

March 5, 1875 Act of Congress .............ccceeeeeeeees 2, 5, 14, LIX

May 10, 1872 ...........csssssssesssserssrescersnresessesssssssssssssessnsessnsees 11

MCL 213.52(1), MSA 8.265(2)(1) ......sssscssssesrsereeeesseeseeenees 27

MCL 213.56, MSA 8.265(6) .........cr.ccccscoorsssrecsseeressoenes 18, 22

MCL 213.74, MSA 8.265(24) .....ccscccrscorscccscrcscesccesssscsesecosees 3

MCL 213.75, MSA 8.265(25) ...crcccosersccrscecscecccccssoeccssnssessees 28

MCL 691.1407(1), MSA 3.996(107)(1) .......cccsceeseereeeeeeneens 28

Michigan assent to condition of admission, December 15,

BIE. <cnsctuidenssnonccnincncstansnaseenetsecsecteisunbnissnvnenaicniiaaenansecssensetes 8

Michigan ordinance submitting alternatives, July 26, 1836.. 8

Statute at Large 326 ................sccscsssssrsereessesssnsenssssessessssesees 6

Other Authorities

Blacks Law Dictionary, 7" Edition.............ssssssssesseeseeseesseees 19

CHR FED GS wcncesscvisennrescerncsesesncsncesssceneesonsnscsesnsnsqnopensseeesiioe 29

House Bill 4652 (Substitute H-2, First Analysis [12-14-79]

and As enrolled, Second Analysis [6-19-80].............0+++ 23

Northwest Ordinance Of 1787...........:sssscsssseesseeeseeseeeeeesees 7

Op. Atty. Gen. 1974, No. 4828, p. 198. .......ccecesesesnseseseseeres 24

RITE OU... n sisinssnisaeindiestatabenineeiesseiastenionnenssebintnnstaiiianets 2, LI

Pete GOB ececcscccesnevenectvesececenesensescecesctnecnstenesnsanscesnsouneeess 2, LI

Treaty Of Paris...............csscsssercsrssrerssrnsssssssenssssesssscsessseosess 12

Treaty Of Peace ............sscssercsssccersresssrsesessssssssessesssssssssenees 12

Warrant 40GS3 ....<c..ccerrrerccerecorecsecsovoscccsescscensssovsescoes 2, XLIX

Waren SUIOD eccecersccerccecsscscssoresssescorscssssentonvsonsoescosseessnsees 2,L

Rules |

MCR 2.1 16(C)(4), (D3) wcoccoreccscccccecscoccccccscocvvcssesssecsosesoeses 26

Constitutional Provisions

MICH CONST 1850, art 15 § 9 00... ceeeseeeseeeeeseeeneeeenes 1, XXVI

MICH CONST 1850, art 15, § 15 ......ccccceesreeeeeeeeeeeeeees 2, XXVI

ix

MICH CONST 1850, art 18, § 14 oo... ee eeeeeeeeeeees 2, XXVII

RE IY Fires GE BG, BF cccceccecescceccsnzecesoees 2, 19, XXVII

ICES CHIT Birets CHES, © ZS ccveccccsccececscncessccsescocesees 1, XXVI

PD NIE PT HE Bi TP © cnccsnccecsnessscssonscunestnenscvens 1, XXV

MICH CONST 1908, art 13, § 2 ............cccsccssssssesees 1, 18, XXVI

SER UE Uy I Mla UF BP vetecsesviececnocscsncarerccccassseusevensene 19

RCE GUNN Berets GING ie 0F BF cocccsecesssancccpencnnsnssonceeces 1, XXV

MICH CONST 1963, art 1, § 14.0.0... 17, 18, 19, XXIV

MICH CONST 1963, art 1, § 2 ..........cesseeeees eeokensnbles 17, XXIV

MICH CONST 1963, art 10, § 2 ..............ccsscesesseeees 17, 28, XXV

PE SE IVGG Bees SIG Be 1 © ccessccccceccesecsesncescscesconseane 1, XXIV

MICH CONST 1963, art 4, § 24 ou... eeeeeceesteeeeeees 21,22, XXV

MICH CONST 1963, art 4, § 25 ........ccssccssseessseeseeeeees 24, XXV

MICH CONST 1963, art 6, § 28 ...........cccccsscsseeeeees 1,20, XXV

i a IIIT 9 scndetiscatsnnictosdcunsaneieenicehacssunnssnes’ 28, XXIII

a saeceepamaeboenuaiens 28

Go Sn IIIT EIT. © -U cicnicinseniciensciaccosnsinnbvebeensounnees 17, 25

ee TI Tis 00 IF cirvsinsoseicionnpansascinenesemeascnononsines 1, 17, XXII

Se a ETI ctessdnsisisseecacorbisinisnnibetincenndsbeanssheninilaniabes 26

I a al sanpatadimanniiies 8

So rs MINNIE DIET Sccsstasiecentccscossvteveopnecetooncaness 1, 8, XXIV

Se es Ne i Ur Wi iscdssateueichictisessicstinanindseebenctiesedaniitinns 8,15

ey Ns Bas OF UG eB Ssetstcicatsesscetsseinetsceninnetenies 1, XXIII

I a i laabaaelinniins 1]

I I real 13

See LIES El FoF cesessnlesisieseccintenessasenssciiinones 1, 4, 8, XXIII

OPINIONS AND JUDGMENTS BELOW

The order of the Michigan Supreme Court is not reported.

The opinion of the Michigan Court of Appeals is

unpublished. All orders are reproduced in appendix A.

JURISDICTION

The opinion of the Michigan Court of Appeals was issued

on July 26, 2002. The Michigan Court of Appeals denied the

petition for rehearing on September 11, 2002. The order of

the Michigan Supreme Court was on February 28, 2003. The

Michigan Supreme Court denied the petition for

reconsideration on May 30, 2003. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257.

28 USC § 2403(a) may apply because the constitutionality

of an Act of Congress is drawn into question, and neither the

United States nor any federal department, office, agency,

officer, or employee is a party.

CONSTITUTION & STATUTES INVOLVED

US Const. art. I, § 10, cl. 1

US Const. art. IV, § 3

US Const, art VI, § 2 -

US CONST, amend V

US Const. amend XIV, §1

MICH CONST 1963, art 1, § 2

MICH CONST 1963, art 1, § 14

MICH CONST 1963, art 3, § 6

MICH ConsT 1963, art 4, § 24

MICH ConsT 1963, art 4, § 25

MICH CoNnsT 1963, art 6, § 28 ;

MICH CoNnsrT 1963, art 10, § 2

MICH CONST 1908, art 5, § 31

MICH CONST 1908, art 13, § 1

MICH CoNnsT 1908, art 13, § 2

MICH Const 1850, art 4, § 23

MICH Const 1850, art 15 § 9

MICH CONST 1850, art 15, § 15

MICH ConsrT 1850, art 18, § 2

MICH Const 1850, art 18, § 14

1980 PA 87

Warrant 40653

Warrant 96989

Patent 4688

Patent 4231

April 24, 1820 Act of Congress

March 3, 1855 Act of Congress

March 5, 1875 Act of Congress

August 1, 1888 Act of Congress

STATEMENT OF THE CASE

The Uniform Condemnation Procedures Act! (UCPA) was

codified by the Michigan Legislature and enacted in 1980 in

order to bring about a common and consistent method of

condemning private property in the territorial limits of

Michigan. It's provisions were invoked in 1996 by the

Michigan Department of Transportation (MDOT), a state

agency, acting under the Constitutionally created

Transportation Commission, to take our property from us so

as to change the location of highway US 131 in and around

the city of Cadillac and specifically through Haring

Township in Wexford County. Roughly 38.53 acres in the

middle of our 232 acre farm was permanently taken from us,

while a thin, yet long, 1.87 acres along our road

(encompassing nearly our entire southern boundary) was

temporarily taken from us for four years. Four of us resided

on our property for several years prior to, and during, this

action; Carl and Bertha are owners of the real property, while

Mark and Anita are their children and reside there and help

run the farm operation. Due to federal funding issues, the

case did not proceed forth in timely fashion until 1999, at

which point in time a jury trial established the amount of just

' 1980 PA 87, MCL 213.51 et seg., MSA 8.265(1) et seg.

compensation to be $237,000.00. The lower court's order

conditioned our receipt of this money upon our deliverance

of a signed W-9, and to date, we refuse to provide the signed

document’ and the amount of just compensation has not yet

been delivered to us. Following is a sketch of the taking:

Section 10

gg he

Figure 1: Permanent taking runs diagonally to the NW.

Temporary. 1.87 acre taking on southern portion of property.

Gray area is our property pric; to any taking.

On appeal, we argued that the lower court lacked subject

matter jurisdiction and the court abused its discretion. The

Court of Appeals heard oral arguments on our case, even

after numerous motions were made by both parties to

dissolve the matter without formal evaluation’. In its July 26,

2002 unpublished opinion, the Court of Appeals held that the

appeal aimed at challenging the validity of the court

os

? Such a document is coercive in nature and forbidden per MCL 213.74,

MSA 8.265(24).

> MDOT immediately filed a motion to affirm and a motion for partial

dismissal. We filed two motions for peremptory reversal and a motion

for summary disposition.

proceedings and was statutorily limited for review‘ and it did

not find an abuse of discretion. We moved for rehearing and

asserted that no order was entered upholding the validity of

the action (and thereby did not invoke any statutes of

limitation for an appeal), our land patents are contracts and

cannot be impaired, and the Court is bound to follow the rule

of law. Our motion was denied.

In our application for leave to appeal to the Michigan

Supreme Court we raised, for the first time, the claim that the

UCPA is unconstitutional. The Court denied both our appeal

and our motion for reconsideration.

In 2000, MDOT again initiated another condemnation

proceeding to extend the time for the temporary 1.87 acre

taking of our property for at least another two years’. To

date, the highway has been constructed and opened to the

public. The 2000 court proceeding is on appeal, and MDOT

has not yet formally removed its claim to our 1.87 acres of

property.

REASON FOR GRANTING WRIT

This case presents an important issue of property

ownership under the Property Clause, US Const. art. IV, § 3,

and specifically requires construction of the nature of "all

rules and regulations" imposed by Congress on the once

Public Lands. This specific construction has never been

adjudicated in the federal courts and has been overlooked on

other matters such as jurisdiction,° treaties’, land

* MCL 213.56(6), MSA 8.265(6)(6).

* MDOT reserved the right to automatically extend the time of the taking

"from year to year" as needed; this, we asserted, violates the statutes of

fraud. The award was $9,500.00.

* Joy v City of St. Louis, 26 S Ct 478, 201 US 332 (1906) holds that

"the mere fact that the title of plaintiff comes from a patent or under an

act of Congress does not show that a Federal question arises." In Oneida

Indian Nation v County of Oneida. 414 US 661, 676, 94 S Ct 772, 781, 39

L Ed 2d 73 (1974) this Court narrowly ruled that a patent with a

continuing federal interest did invoke the federal-question jurisdiction

descriptions’, and grants to states’. This case also presents an

important question involving the constitutionality of

Michigan's Uniform Condemnation Procedures Act, 1980

PA87. Lastly this case presents an important question

involving a state's rights to overpower the statutes in force

when addressing an issue involving the power of eminent

domain. All questions are ripe for this Court’s review.

One of the questions presented—what is the nature of patents

and warrants issued prior to the March 5, 1875 Act of

Congress that empowered states to condemn private and

public property—itself implicates a number of connected and

important questions warranting this Court’s review. The first

of these is whether the United States can selectively chose

when and if the power of eminent domain is to pass to the

states respecting public land that is being patented to private

parties under the Properties Clause of the Constitution.

Related!y is the determination of what the nature of all

patents and warrants are that were issued prior to this Act;

Also related is the issue relating to patents that are issued

with "all rights, privileges, immunities, and appurtenances of

and once a "patent issues, the incidents of ownership are, for the most

art, matters of local property law to be vindicated in local courts."

Mitchel v US, 34 US 711 (1835) looked to the treaties between Florida

Indians and Spanish king remaining in force over territory ceded to the

US and were binding on the US by obligations they had assumed by

Louisiana Treaty between France and the US. US v King, 48 US 833

(1849) looked to the April 30, 1803 treaty with Spain that reserved

inhabitants of Louisiana with the full enjoyment of their property.

® In People v Broedell, 112 NW2d 517, 365 Mich 201 (1961) the

Michigan Supreme Court ordered the defendant to revise the record and

show the land patent and later remanded the case for an evaluation of the

atent.

Dubuque & PR Co v Litchfield, 64 US 66 (1859) looked to the legal

description of the land actually granted under the May 15, 1856 Act of

Congress land granting land to the State of Iowa to aid in the construction

of certain railroads. US v Union Pac R Co, 77 S Ct 685, 353 US 1 12

(1957)

whatsoever nature" and just whether the property is immune

from a state's power of eminent domain. This Court’s

intervention is warranted to create consistency and coherence

to the law in this area.

The second question concerns the constitutionality of the

state of Michigan's procedures for condemning private

property. In itself, there are a myriad of issues involved. The

last question presented concerns a state's right to impose

strict laws upon its citizens, while loosely imposing those

same laws upon itself.

The Court should grant the petition in this case because

opportunities to review these important issues do not often

arise.

I. THE COURT SHOULD RESOLVE THE NATURE

OF THE RIGHTS, PRIVILEGES AND IMMUNITIES

PASSED WITH LAND PATENTS AND WARRANTS

ISSUED PRIOR TO MARCH 5, 1875.

The laws respecting the taking of private property within

the territory of Michigan are derived from Virginia's 1783

Act of Cession (Statute at Large 326) that was executed

March 1, 1784. As a condition to ratifying the Articles of

Confederation, Virginia stipulated that the Northwest

Territory, under its dominion, would be ceded to the United

States "for the use and benefit of" the United States, and the

said territory was required to be "faithfully and bona fide

disposed of for that reason". All new states formed from the

territory were to be admitted into the Union "having the same

rights of sovereignty, freedom and independence of the other

states". Virginia thereby ceded "all right, title, claim, as well

of soil as jurisdiction" to the United States and empowered

the federal government to control the entire territory in trust;

The United States thereby became trustee of the property

encompassing our current state of Michigan. The ceding of

this property was done to provide a fund from which to work

for the Union's common benefit. Dred Scott v Sandford, 60

US 393, 434 (1856). Pollard v. Hagan, 44 US 212 (1845).

The government of this Northwest Territory was

established first by the Northwest Ordinance of 1787.

Through it, the jurisprudence was established setting forth

articles of compact between the original states and the people

and future states within the territory. Particularly the

ordinance clarified that

"no man shall be deprived of his liberty or property, but

by the judgment of his peers, or the law of the land, and

should the public exigencies make it necessary, for the

common preservation, to take any person's property, or to

demand his particular services, full compensation shall be

made for the same. And, in the just preservation of rights

and property, it is understood and declared, that no law

ought ever to be made or have force in the said territory,

that shall, in any manner whatever, interfere with or affect

private contracts, or engagements, bona fide, and without

fraud previously formed."

The ordinance further clarified that any newly formed states

could "never interfere with the primary disposal of the soil by

the United States..., or with any regulations Congress may

find necessary for securing the title in such soil to the bona

fide purchasers." Accordingly, federal public lands were

controlled solely by the United States, and all the lands

within the current territory of Michigan fell under federal

jurisdiction.

The rough territorial boundaries of Michigan were carved

out from the Northwest Territory under a January 11, 1805

Act of Congress, 2 Stat 309, when Michigan became

recognized as its own separate territory. And then, through a

series of enabling acts, Michigan applied for statehood. After

a long drawn out series of bargaining and negotiation,

Michigan finally was accepted by the United States as a state,

on equal footing, in the Union (5 US Stat. At Large 144); in

so doing, Michigan affirmed that it would "never interfere

with the primary disposal of the soil within the same by the

United States, nor with any regulations C. ongress may find

necessary for securing the title in such soil to the bona fide

purchasers thereof." (5 US Stat at Large 49, 5 US Siat at

Large 59, 5 US Stat at Large 144, Michigan ordinance

submitting alternatives, July 26, 1836, Michigan assent to

condition of admission, December 15, 1836.)

The United States Constitution took immediate affect with

the newly formed state of Michigan on the date of its

admission; while Michigan became a state on equal

sovereign footing as the original states, the Constitution

limited Michigan's rights and abilities and forced acceptance

of specific limitations with respect to property: "The

Congress shall have power to dispose of and make all

needful rules and regulations respecting the territory or

other property belonging to the United States" (US Const.

art. IV, § 3), and "nor shall private property be taken for

public use without just compensation" (US Const. amend V,

enforced via US ConsT. amend XIV). Built inside the

constitution hid other restrictions that the new state had to

succumb to, including section 10 of Article I which spelled

out severai limitations that states are forbidden to do.

Specifically, Michigan was restricted, as under the Northwest

Ordinance of 1787, from impairing obligations of contracts

(US Const. art. I, § 10).

The lands involved in this present controversy arise under

patents issued under two different Acts of Congress. Patents

4688 and 4231 were issued under the April 24", 1820 Act of

Congress in which "all the rights, privileges, immunities, and

appurtenances of whatsoever nature " were conveyed from

the United Staies to the private parties. Warrants 40653 and

96989 were issued under the March 3, 1855 Act of Congress

in which "the appurtenances thereof" were conveyed’”.

° See Appendix B for the detailed wording of the land patents and

warrants involved in this controversy. All four patents and warrants were

issued in 1869 or 1872.

A. The Property Clause empowers Congress to

selectively retain or grant sole sovereignty over

public iands patented or granted to private parties.

The nature of control that Congress exerts over Public

Lands has long been tested in the courts. States have been

found to have no authority over such lands until Congress

patents the property to private parties, and even after

patented, the control may be limited. Wilcox v Jackson, 38

US (13 Pet) 498, 10 L Ed 264 (1839)''. The power of the

states to condemn land belonging to the United States has

been found to be non-existent absent the expressed consent of

the US. Utah Power & Light Co. v US, 37 S Ct 387, 243 US

389 (1917). State enactments of laws further restraining use

of the public lands within their territorial boundaries are

unconstitutional unless there is no interference with federal

regulations; and very pointedly, while states have been found

to have broad trustee and police powers over their

jurisdictions, those powers exist only insofar as their exercise

may not be incompatible with, or restrained by, rights

conveyed to federal government by the Constitution. Kleppe

v New Mexico, 96 S Ct 2285, 426 US 529 (1976).

The Property Clause gives Congress unlimited power over

public lands, and it was not until Act of Congress March 3,

'' In the Court's "very brief examination" of Wilcox v Jackson of whether

a person holding a register's certificate without a patent, can recover the

land as against the US, the Court found it necessary to clarify that title

passed and vested according to the laws (emphasis added) of the United

States:

We hold the true principle to be this, that whenever the question

in any Court, state or federal, is, whether a title to land which

had once been the property of the United States has passed, that

question must be resolved by the laws of the United States; but

that whenever, according to those laws, the title shall have

passed, then that property, like all other property in the state, is

subject to state legislation; so far as that legislation is consistent

with the admission that the title passed and vested according to

the laws of the United States

1875 entitled "An act granting to railroads the right of way

through the public lands of the United States!" that any

power was delegated to the states authorizing condemnation

of public property.’ > Such an Act was accomplished through

this Property Clause that specifically reserves the rights to

promulgate "rules and regulations" with the federal

government. Prior to this 1875 Act of Congress, there was

no generic dissemination of condemnation powers given to

the States for control over public (or even private) lands.

Granted, earlier Acts authorized specific entities such as

railroads the limited powers to take property to aid in the

road's construction'*, but never did an Act of Congress

empower a state, such as Michigan, to generically condemn

public property until after March 3, 1875.

As this Court has found in evaluating early Acts of

Congress, much is to be desired in the content of such acts.

Acts exist from 1866 & 1870 that involve right of ways over

public lands

for ditches, canals, and reservoirs used in diverting,

storing, and carrying water for ‘mining, agricultural,

manufacturing, and other purposes.’ The extent of the

right of way in point of width or area was not stated, and

the grant was noticeably free from conditions. No

application to an _ administrative officer was

contemplated, no consent or approval by such an officer

was required, and no direction was given for noting the

right of way upon any record. Obviously this legislation

was primitive. Utah Power & Light Co, Supra.

'? March 3, 1875, ch 152, §3, 18 Stat 482.

'> It was not until the August 1, 1888 Act of Congress that a generic

authorization was given for any United States government official to

condemnation land for public use.

'* See Act of Congress July 2, 1864 entitled "An Act to amend an Act

entitled 'An Act to aid in the construction of a railroad and telegraph line

from the Missouri River to the Pacific Ocean, and to secure to the

Government the use of the same for postal, military, and other purposes’,

approved July first, eighteen hundred and sixty-two.

10

As indicated in this opinion, the Court recognized the vague

nature of the early Acts of Congress'”. In this light, the acts

empowering states to condemn public and private property

had been vague, and frankly non-existent until 1875.

In Kleppe, the Court considered the powers inherent in the

Property Clause and clarified just what limitations exist:

The Clause, in broad terms, empowers Congress to

determine what are "needful" rules "respecting" the

public lands, and there is no merit to appellees’ narrow

reading that the provision grants Congress power only

to dispose of, to make incidental rules regarding the use

of, and to protect federal property. The Clause must be

given an expansive reading, for "(t)}he power over the

public lands thus entrusted to Congress is without

limitations," United States v. San Francisco, 310 U.S.

16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050.

Kleppe held that the power of Congress extended beyond

simply disposing of the public property and had no

limitations. With respect to a state's power of condemnation,

Congress created the "needful rules and regulations" that

empowered a state to satisfy its public needs only in 1875.

With this all encompassing power, Congress can also

withdraw a state's power of eminent domain for lands still

belonging to the United States that are awaiting disposal to

the inhabitants, by revoking any and all such condemnation

grants to states'®.

B. All land patents issued prior to March 5, 1875

passed absolute title to the patentee and no state

'S In Andrus v Charlestone Stone Products Co., Inc., 98 S Ct 2002, 436

US 604 (1978), the May 10, 1872 Act of Congress was reviewed in light

of earlier Acts of Congress from 1866 & 1870 to determine the nature of

the "minerals" reserved from patents issued under its provisions. The

actual language of the patent was not discussed.

'6 The Constitutional provision forbidding ex post facto laws would apply

to patents and warrants already issued since March 5, 1875. US CONST.

art. 1, § 9.

11

acquired the power to condemn such property.

Only the United States has the power of eminent

domain over the property so passed.

The time a patent or warrant issues is crucial for

understanding the laws that are attached to it. In this light,

this Court has repeatedly held that the nature of a patent is

paramount in ascertaining a state's rights to exercise control

over real property. In United States v. Holt State Bank, 270

U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465, it is held that the power

of Congress is such that it can grant property under navigable

waters to a private party and divested such right from the

state of Michigan, even though the United States held the

property in trust under the Virginia Act of Cession. In

clarifying its opinion, this Court stated that states' rights to

property is

subject to ihe qualification that where the United States,

after acquiring the territory and before the creation of the

state, has granted rights in such lands by way of

performing international obligations, or effecting the use

or improvement of the lands for the purposes of commerce

among the states and with foreign naiions, or carrying out

other public purposes appropriate to the objects for which

the territory was held.

Since the formation of the United States, Congress has

been fully conscious of the rights and reservations that it

issues in its patents and grants. In its April 21, 1792 Act of

Congress entitled "An act authorizing the grant and

conveyance of certain lands to the Ohio Company of

Associates", property was conveyed in "fee simple." In its

March 26, 1804 Act entitled "An act making provision for

the disposal of the public lands in the Indiana territory, and

for other purposes", Congress recognized the rights of the

inhabitants under legal grants from the French government

prior to the Treaty of Paris, and legal grants from the British

government subsequent to the Treaty of Paris yet prior to the

Treaty of Peace. Even the courts of Michigan have

repeatedly recognized the state's limitations to property

subject to patents. Klais v Danowski, 129 NW2d 414, 373

Mich 262 (1964) (no title thereto passed from the United

States to the State of Michigan upon its admission into the

Union in 1837, even if submerged land at the time, because

then it no longer belonged to the United States but to the

Abbott heirs or their successors in title.) People ex rel.

Gazlay v Murray , 221 NW2d 604, 54 Mich App 685, (1974)

(if the land was patented by the United States to a private

person before Michigan became a state, then the United

States would have had no title to the property to convey upon

admission of Michigan to statehood and the title would thus

remain in the patentee despite the fact that the patent

conveyed lands under navigable water).

In reviewing the types of land grants and patents in the

Wexford County area, it is clear that many different rights

were patented along with the land under several different

Acts of Congress'’. The states of Maine, Connecticut,

Vermont, New Hampshire, Kentucky, Ohio, and Indiana

were issued scripts under the July 2, 1862 Act of Congress

for which public land was provided for colleges for the

benefit of agriculture and the mechanical arts'® during the

years 1875, 1876, and 1878. These scripts were assigned to

private parties and given "to have and to hold" with "the

appurtenances thereof." Similarly bounty lands were issued

under the March 3, 1855 Act of Congress, again, "to have

and to hold "with "the appurtenances thereof". Cash entry

land was also sold under the April 24, 1820 Act of Congress,

passing "all rights, privileges, immunities, and

appurtenances, of whatsoever nature". The State of Michigan

was also granted land, in favor of the Grand Rapids &

'” According to US CONST. art. Il, § 2, the Supreme Court has appellate

jurisdiction of law and fact. Some factual material is not on the record of

the lower court.

'§ Cornell University v Fiske, 10 S Ct 775, 136 US 152, (1890) holds that

a state receiving script holds only the right to sell it.

13

Indiana Railroad!®, consisting of nearly every odd-section

through Haring Township for the purpose of constructing the

said railroad; no reservations were made with this grant.

Our land is patented under the April 24, 1820 and the

March 3, 1855 Acts of Congress. All four patents were

issued prior to the March 5, 1875 Act of Congress and were

conveyed without any sovereignty being passed to the state

- of Michigan with respect to the power of eminent domain.

It must be stressed that we do not mean to imply that

property is not subject to the sovereign power of the body

politic, because it is. West River Bridge Co v Dix, 47 US 507

(1848). In fact, the body politic is, in our Country one of two

entities, the United States or one of the fifty states.

Ultimately, one, if not both, of these entities is the

sovereignty over the lands within the territorial boundaries of

the United States. True, much of the land located in Haring

Township in Wexford County is subject to condemnation by

the State because much of it (every odd section extending 12

miles in width) emanates from state patents made in favor of

the Grand Rapids & Indiana Railroad. In these cases, the

State of Michigan has joined in the actual chain of title and

thereby gained sovereignty over the property to future

property owners. It is true, therefore, that much of the

existing cas¢ law is valid and holds for a vast majority of

properties in our specific region of the country .

But it 1s to the remaining properties that we turn our

attention. It is to the military bounty warrants and the

property issued under the April 24", 1820 Act of Congress

that explicitly and in no uncertain terms, passed all

immunities from the United States to the patentee. In these

specific instances, the sovereign remains in the United States

- in the Union, and not in one of the many states. In these

instances, the patents were issued with the common good of

'° See the following Acts of Congress that detail the nature of the Grand

Rapids & Indiana Railroad grant: June 3, 1856; June 7, 1864; and March

3, 1865.

providing for the Union by drumming up soldiers (via bounty

lands) in the defense of the Country, and by fostering the

creation of funds by selling property under explicit and

attractive conditions to gain money for the payment of debts

of the young Country (via land cash sale patents).

It is true that the Act of Cession by Virginia limited the

United States actions by ascertaining its efforts must result in

the admittance of states on "equal footing" with the original

states. While this is true, it also conceded that the public

lands were completely under the dominion of the Union, and

any needful rule or regulation was explicitly granted from

Virginia to the United States. Clearly, the United States

found itself depleted of financial resources and in need of

paying off its debts, both to soldiers and to foreign countries.

It fostered the rules and regulations to obtain these funds and

created contracts, in form of patents, to pass all its own

immunities to the patentees under the April 24, 1820 Act of

Congress.

Because MDOT has collaterally attacked our patents by

taking our land from us, the state of Michigan has violated

US Const. art. I, § 10. that prohibits the state, or any of its

agencies, from interfering with our patents. This Court

recognizes that land patents and land grants from the US

government are "contracts" within the meaning of US Const.

art. I, § 10. Providence Bank v. Billing, 29 US 514 (1830).

No argument can be made by MDOT to assert that it desires

to challenge our patents' validity, because Act of Congress

March 3, 1891, c. 559, 26 Stat. 1093, established the statutes

of limitations for challenging a patent; it is five years from

the date of issuance. Specifically the Act provides that "suits

by the United States to vacate and annul any patent

heretofore issued shall only be brought within five years from

the passage of this act." Considering our patents were issued

in 1869 and 1872, the statute of limitation has expired and

patents, carrying their protections, cannot be cancelled at this

late date. This Court has recognized that the right of action

15

of the United States, assuming it to have had any, was

complete at the date of the passage of the act, and the lapse of

five years without action to annul the grant resulted in the

confirmation of it. US v Chandler-Dunbar Water Power Co,

152 F 25 (1907).

C. The patent issued with "all rights, privileges, and

immunities, of whatsoever nature" forbid Michigan

from obtaining the power of eminent domain over

the property.

It is well settled that in a public grant, nothing passes by

implication, and unless a grant is explicit with regard to the

property it conveys, construction by the Courts will be

adopted which favors sovereign.. US v Jenks, 129 F3d 1348

(1997). With the clear and explicit language of our patents

issued from the 1820 Act of Congress, "all rights, privileges,

immunities, and appurtenances, of whatsoever nature"

nothing is left to implication. All rights pass. All privileges

pass. All immunities pass. All appurtenances pass.

This Court held that the grant of land by the United States

to the territory of Iowa for the purpose of improving the

navigation of the Des Moines river is to be strictly construed

against the grantees, and nothing passes but what is conveyed

in clear and explicit language. Dubuque & PR Co v

Litchfield, 64 US 66 (1859). How much more clear can our

two patents be? All possible control over our land passed

with the patents.

Il. THE COURT SHOULD DETERMINE THE

CONSTITUTIONALITY OF THE MICHIGAN

UNIFORM CONDEMNATION PROCEDURES

ACT, 1980 PA 87.

The Uniform Condemnation Procedures Act is the

methodology by which the state of Michigan and its agencies

are empowered to take private property. It sets forth the

procedures required for reviewing the necessity of the take

and determining the award of just compensation. It repealed

numerous other statutes that were in force at the time in order

to provide a more unified method by which the courts could

address the state's power of eminent domain. At issue in this

argument is the constitutionality of the Act.

We exert our Constitutional rights of due process

guaranteed by MICH CONST 1963, art 1, § 2 which provides

that "no person shall be denied the equal protection of the

laws" and US Const, amend XIV, § 1 which provides that

no state shall "deprive any person of...property, without due

process of law." While the Michigan Constitution is the

"supreme" law of our State, it is second to that of the United

State's Constitution. US Const, art VI, § 2. Any law made in

pursuance thereof, must be constitutional. Anchor Bay

concerned Citizens v People ex rel Kelly, 55 Mich App 428,

223 NW2D 3 (1974), appeal denied 394 Mich 779, 229

NW2d 338. As set forth below, the Uniform Condemnation

Procedures Act is not constitutional and is void.

A. The Michigan Constitution solidifies the right to

trial by jury for the determination of necessity, yet

the UCPA forbids us that right.

Michigan's 1963 Constitution guarantees that citizens

have the right to trial by jury in civil cases,”’ yet vaguely

defines its provisions for taking private property through its

power of eminent domain’’, unlike the previous constitution

of 1908. Because of the nature of the language of the new

Constitution in which no mention is made regarding the

nature of trials by jury in the situation of taking private

20 MICH CONST 1963, art 1, § 14 provides that "the right of trial by jury

shall remain, but shall be waived in all civil cases unless demanded b_;

one of the parties in the manner prescribed by law. In all civil cases tried

by 12 jurors a verdict shall be received when 10 jurors agree.”

2! MICH CONST 1963, ait 10, § 2 provides "private property shall not be

taken for public use without just compensation therefore being first made

or secured in a manner prescribed by law. Compensation shall be

determined in proceedings in a court of record.”

17

property, the jury trial provisions of the earlier Constitution

holds. Specifically, MICH CONST 1908, art 13, § 2 provides

When private properiy 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, shai! be ascertained by a jury of 12

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: Provided, that the

foregoing provision shall not be construed to apply to the

action of commissioners of highways or road

commissioners in the official discharge of their duties.

Many case laws exist in Michigan history supporting the trial

by jury concept for a review of necessity. See State Highway

Commission v Vanderkloot, 392 Mich 159, 220 NW2d 416

(1974).

It is true that we never asserted our right to a trial by jury

for the review of the taking of our property, but this cannot

be deemed a waiver. The Michigan Supreme Court has held

that there is no waiver where no method is prescribed, or the

conditions are such as to render execution of the provision

impossible. Odell v Reynolds, 40 Mich 21 (1879). Since the

provisions of the UCPA prohibit a trial by jury for a review

of necessity”, not only have we NOT waived our

constitutional right, but the Act is repugnant to the

Constitution and is void.

B. The Michigan Constitution solidifies the right to

trial by a jury of 12 freeholders for the

determination of just compensation, yet the UCPA

limits us to a jury of "6 qualified electors."

As already mentioned in this writ, the 1963 Michigan

Constitution guarantees that citizens have the right to trial by

jury in civil cases, unless waived.”? It is from the 1850

2 MCL 213.56, MSA 8.265(6) authorizes only a review by the Court.

23 MICH CONST 1963, art 1, § 14.

Michigan Constitution that we are entitled to the right to a

trial by jury of 12 freeholders for determining the amount of

just compensation;”* this is so because no provision in either

the 1908 or 1963 Michigan Constitutions have altered the

Constitutional right founded in 1850, yet each Constitution

guaranteed the right to trial by jury would remain’.

The Michigan Supreme Court is well aware of the earlier

constitutional provisions as they relate to condemnation.

First it should be noted that a freeholder is a person who

possesses an estate in land held in fee simple, in fee tail, or

for term of life. Blacks Law Dictionary, 7" Edition.

Freeholders know something of the value of the lands sought

to be condemned. Brewster Street Housing Site in City of

Detroit, In re, 291 Mich 313, 289 N.W. 493 (1939). In early

condemnation proceedings, the jury was a jury of inquest,

and were authorized to act as judges of the law and facts,

with the judge attending only in an advisory capacity. Supra.

Brewster further clarifies the nature of the proceedings:

Proceedings for the condemnation of property are not

tried before a court. The constitutional tribunal here

involved was a jury of 12 freeholders residing in the

vicinity of such property. They were charged by the

Constitution of this State with the duty to determine

whether there was a necessity for using such property

sought to be taken, and if they found there was a necessity

for taking such property for a public use, to fix the just

compensation to be made therefor. This seems plain from

** MICH CONST 1850, art 18, § 2 provides "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 therefore, except when to |

be made by the state, shall be ascertained by a jury of twelve free-holders, |

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: Provided, the foregoing provision shall in no case be construed to

apply to the action of commissioners of highways in the official discharge

of their duty as highway commissioners."

*° See MICH CONST 1963, art 1, § 14, and MICH CONST 1908, art 2, § 13

19

section 2, article 13, of the Constitution of 1908.

Proceedings under this section of the Constitution,

therefore, will not be reviewed in the same manner as if

the proceeding was one tried before a court and jury

according to the course of the common law. [supporting

case laws omitted]

The Legislature cannot defeat a defendant's constitutional

rights simply by changing the title of a jury. People v.

Antkoviak, 242 Mich App 424, 619 NW2d 18 (2000). As

such, the UCPA is unconstitutional in that it is repugnant to

the Constitutional guarantees to a trial by jury of 12

freeholders.

C. The Michigan Constitution requires the court to

determine if a taking is "authorized by law," yet

the UCPA places the burden of proof on the

property owner to show fraud, error of law, or

abuse of discretion.

Michigan's 1963 Constitution authorizes determinations

of an administrative agency to be reviewed by the courts and

requires, at a minimum, that a reviewing court make a

determination as to whether or not a decision is authorized by

law.”° Unfortunately the UCPA does not follow the

requirements and instead places the burden of proof

(regarding the necessity of a taking) onto the property owner

to show fraud, error of law, or abuse?’ and has a long list of

current case law supporting this actual practice. Kent County

°° MICH CONST 1963, art 6, § 28 provides that " All final decisions,

findings, rulings and orders of any administrative officer or agency

existing under the constitution or by law, which are judicial or quasi-

judicial and affect private rights or licenses, shall be subject to direct

review by the courts as provided by law. This review shall include, as a

minimum, the determination whether such final decisions, findings,

tulings and orders are authorized by law; and , in cases in which a hearing

is required, whether the same are supported by competent material and

substantial evidence on the whole record."

?” MCL 213.56(2), MSA 8.265(6)(2).

20

Road Com'n v Hunting, 170 Mich App 222, 428 NW2d 353

(1988), appeal denied. City of Lansing v Jury Rowe Realty

Co, 59 Mich App 316, 229 NW2d 432 (1975). Board of

County Road Com'rs, Livingston County v Herbst, 38 Mich

App 150, 195 NW2d 894 (1972). City of Muskegon v Irwin,

31 Mich App 263, 187 NW2d 481, (1971). Board of County

Road Com'rs for Kalamazoo County v Docsa, 21 Mich App

546, 175 NW2d 899 (1970), remanded 384 Mich. 756, 179

NW2d 622. While even the Michigan Supreme Court has

clarified that a court must determine whetk>r errors of law

have been committed by determining whether findings of fact

are supported by competent, material, and substantial

evidence on the whole record (National Standard Co v

Department of Treasury, 384 Mich 184, 180 NW2d 764

(1970)) the courts have not reviewed the statute in this light.

D. The title-object clause of the Michigan Constitution

requires the contents of a law to be expressed in the

title of the law, yet the title to the UCPA does not

include all of its content.

Michigan's 1963 Constitution requires that “No law shall

embrace more than one object, which shall be expressed in its

title . . 2°” yet the UCPA does not comply with this mandate.

The purpose of the clause is to give fair notice to the public

about the content of the law. HJ Tucker & Associates, Inc v

Allied Chucker & Engineering Co, 234 Mich App 550, 559;

595 NW2d 176 (1999), quoting Ray Twp v B & BS Gun

Club, 226 Mich App 724, 728; 575 NW2d 63 (1997).

Specifically the title provides that its purpose is “to

provide procedures for the condemnation, acquisition, or

exercise of eminent domain of real or personal property by

public agencies or private agencies; to provide for an

agency's entry upon land for certain purposes; to provide for

damages; to prescribe remedies; and to repeal certain acts and

parts of acts.” With respect to the title of the UCPA, it has

78 MICH CONST 1963, art 4, § 24

21

cements. |

been found to be controlling in determining that the Act is

not intended for use in inverse condemnation cases. Lim v

Michigan Dept. of Transp. 423 NW2d 343, 167 Mich App

751 (1988), appeal denied.

The title to the act does not give fair notice that the

manner by which to challenge the taking”’ of the property is

included; it does not give fair notice that a property owner is

restricted in challenging the validity of the court

proceeding”’. The title and the body of the statute do not

address the same subjects; and considering the procedure for

a property owner to challenge the necessity of the taking is

not included in the title of the statute, yet it is a substantial

part of the body of the statute, the Act is unconstitutional.

E. The title-object clause of the Michigan Constitution

requires only one object to be expressed in the law,

yet the UCPA expresses two.

Michigan's 1963 Constitution requires only one object

to be encompassed in any law*'. The “object” of a law is

defined as its general purpose or aim. Local No 1644 v

Oakwood Hosp Corp, 367 Mich 79, 91: 116 NW2d 314

(1962). The UCPA is aimed at two things: reviewing the

need for taking property, and determining the amount of just

compensation for property so determined as needed. For the

most part, the Act provides detailed instructions on how to go

about determining the award of just compensation. As in an

after thought, one section is dedicated to provide methods to

challenge necessity. In and of themselves, the review of

necessity and the determination of just compensation are two

entirely different things. "Just compensation" is that amount

that places the property owner in a condition as good as the

owner would have been in had taking not occurred. Oakland

Hills Development Corp. v. Lueders Drainage Dist. 537

?° MCL 213.56, MSA 8.265(6)

°° MCL 213.56(6), MSA 8.265(6)(6)

*" MICH CONST 1963, art 4, § 24

22

NW2d 258, 212 Mich App 284 (1995). Necessity involves

the power of eminent domain which is "the rightful authority

which exists in every sovereignty, to control and regulate

those rights of a public nature which pertain to its citizens in

common, and to appropriate and control individual property

for the public benefit, as the public safety, necessity,

convenience and welfare may demand." People ex rel

Trombley v Auditor-General, 23 Mich 471 474 (1871). The

Michigan Legislature distinguished the two concepts as

follows:

In general, there are two issues to be decided in a

condemnation case. The first is the determination of

"public necessity" - whether there is some compelling

public need that justifies the agency's taking of property

from its owner. If public necessity is established, the

second issue is the question of "just compensation" - how

much the owner should be paid. The determination of just

compensation is concerned not only with the actual value

of the property being acquired, but also with how much

the acquisition and subsequent use to which the property

is put affects the value of the owner's remaining property,

either positively or negatively. Under the bill, the

determination of public necessity, if challenged, could

only be decided by the court, while just compensation

would be decided by a jury at the demand of either the

owner or the agency.”

The legislature, when enacting the law, moved to limit the

appellate review of necessity, while not so limiting that of

just compensation. While it may be true that both necessity

and just compensation are included under the very broad idea

of condemnation, it is not true that they encompass the same

object. One goes about reviewing the need for a take. The

other goes about determining the fair market value, and thus,

the award for just compensation. It is entirely feasible that a

52 House Bill 4652 (Substitute H-2, First Analysis [12-14-79] and As

enrolled, Second Analysis [6-19-80], page 1)

23

review of necessity may cease a condemnation action. It is

equally feasible that a review of necessity may provide the

impetus for determining the award of just compensation.

These two ideas are indeed two different objects.

F. The Michigan Constitution restricts any general

revisions of laws and mandates altered and

amended laws to be re-enacted and published at

length, yet the UCPA revised several laws without

fulfilling these constitutional requirements.

Michigan's 1963 Constitution prevents any law from

being revised, altered or amended by reference to its title

only and mandates re-enactment and publishing at length for

any altered or amended laws*’. The purpose of this

Constitutional provision is to keep the law clear: it should not

be impossible to tell what the law is. Alan v Wayne County,

200 NW2d 628, 338 Mich 210 (1972), rehearing denied 202

NW2d 277, 388 Mich 626.

Unfortunately, the UCPA generically specifies a variety

of alterations in subsection 1 of section 25 of the Act as

amended in 1985. "Except as otherwise provided by —

subsections (2), (3), and (4), effective May 1, 1980, all

actions for the acquisition of property by an agency under the

power of eminent domain shall be commenced pursuant to

and be governed by this act." A long laundry list of public

acts is spelled out in sections 2, 3, and 4 clarifying effective

dates for the new act. Each of these Acts were affected and

altered by the enactment of the Uniform Condemnation

Procedures Act, yet they were never republished at length.

Even our own Attorney General found that to amend a

particular act, the legislature must reenact and republish those

sections which are to be amended in the amended form and

cannot amend an act by merely referring to it in a statute

which is a part of a separate body of law. Op. Atty. Gen.

1974, No. 4828, p. 198.

*° MICH CONST 1963, art 4, § 25

24

It seems that each time we raise an issue invoking the

provisions of another act, the courts dismiss the provisions in

favor of another statute that is more favorable to the state.

This we have found quite true in the second condemnation

case commenced by MDOT to extend the temporary taking

of a portion of our property’.

lil. THE COURT SHOULD SOLIDIFY THE

DYNAMIC NATURE THAT LAWS ARE APPLIED

TO STATES WHEN CONCERNING THE

SOVEREIGN POWER OF EMINENT DOMAIN.

We assert our rights to obtain the equal protection of the

law and insist that we have the right to due process*> One

right we assert is for the Court of Appeals to fully adjudicate

our rights by fully giving affect to our assertion that subject

matter jurisdiction is absent in the lower court. Wé insist that

our payment of just compensation cannot be premised on an

exchange of a W-9°°. We assert that our property has not

been taken by the power of eminent domain as just

compensation has not been made to us and resultantly MDOT

is trespassing and owes us restitution. Our children deserve

just compensation, as they are a party to this litigation and

have rights taken from them; and the final adjudication of

this litigation up until this point in time has not even

recognized them. Our fifth amendment due process rights

guarantee us all (Carl, Bertha, Mark & Anita) the "equal

* In 2000, MDOT again instituted another condemnation action to

temporarily extend the time for taking the temporary take of 1.87 acres of

our property. We proceeded in proper person and were informed by

Circuit Court Judge Horn that there are many laws on the book and

anyone can find a law that works in their favor. See the April 15, 2002

transcript, page 51, lines 6-8 in which the court stated "you handed me a

piece of paper that has got a law on it. You can dig through a law book

and find a lot of laws."

** US CONST, amend XIV, § 1 provides that no state shall "deprive any

rson of...property, without due process of law."

“© Nor can just compensation include payment to the condemning party

for attorney fees and expert witness fees, under any circumstance.

25

protection of the laws." Our property (tangible and

intangible) has been taken from us, and the all powerful, and

very intimidating power of the state of Michigan has stripped

us of that which we are entitled to by setting up laws that are

cumbersome and tedious, by encouraging the practice of

lawyers and frowning upon anyone pursuing his or her rights

in proper persona, by not assisting condemnees in these

proceedings, and by precluding judicial review of those

things that our attorney forced on us to speed up MDOT's

acquisition of our property. Every party, including the Court,

has been fully aware of our claim of sovereignty from the

beginning of this lawsuit. While we may not have followed

the detailed and mind-numbing methods set forth by our

legislatures or the Michigan Court Rules, there can be no

doubt that the intent of the law is to protect its citizens>”.

We have a right to be heard; we have a right to ALL the laws

(just as MDOT has the same right); and we have the right to

justice.

A. An order upholding the validity of the

condemnation proceeding must be entered to

preclude appellate review of the proceedings.

Commonly, the claim that a court lacks subject matter

jurisdiction may be raised at any time, MCR 2.1 16(C)\(4),

(D)(3), including for the first time on appeal. Phinney v

Perlmutter, 222 Mich App 513, 564 NW2d 532 (1997). Yet

when a specific statute limits that review, the general rule

does not apply. In our case, the Court of Appeals held that

this appellate review is precluded due to the provisions in

MCL 213.56(6), MSA 8.265(6)(6) which restricts a challenge

to the validity of the proceedings. The provision is, in part,

as follows:

an order of the court upholding or determining public

necessity or upholding the validity of the condemnation

proceeding is appealable to the couri of appeals only by

*” See US CONST, preamble.

26

leave of that court pursuant to the general court rules. In

the absence of a timely filed appeal of the order, an

appeal shall not be granted and the order is not

appealable as part of an appeal from a judgment as te just

compensation. MCL. 213.56(6), MSA 8.265(6)(6).

As such, an order must first be entered that upholds the

validity of the condemnation proceeding.

In fact, an order has never been entered on the record in

our case to this effect, and the provisions of MCL 213.56(6),

MSA 8.265(6)(6) have not been invoked. Therefore, as

expressed in MCL 213.52(1), MSA 8.265(2)(1), "all laws and

court rules applicable to civil actions shall apply to

condemnation proceedings except as otherwise provided in

this act" and by default, the general rules apply. The

Michigan Court of Appeals has been firm in its rulings on

condemnation, much as the lower courts have been, and has

readily, with haste, assumed the power of eminent domain

exists. Because of this mindset, the Court's refuse to hear our

appeal that they may be wrong, and readily rule, and always

rule, in the state's favor without blinking an eye.

B. The payment of just compensation cannot be

conditioned upon the release of a signed W-9 and

Michigan's constitutional provision violates US

Const, Amend V.

The lower court order conditions our receipt of our award

of just compensaiion® on our providing a signed W-9°”. This

** The amount of just compensation was deposited into the court's non-

interest bearing escrow account in two payments ($238,147.46 including

interest), of which, MDOT removed attorney fees and expert witness fees

($31,234.12), added our expert witness fees ($22,010.00), [then the court

paid out some of our expert witness fees ($18,370)] and has thereby

depleted our award of $237,000.000 plus interest to $210,553.34. This

amount falls significantly short of our award.

*° There is no breakdown of the award as to the amount considered for

damages as opposed to the amount considered for fair market value. As

such, it is impossible for us to properly complete our tax information.

27

is a clear violation of our rights to just compensation

according to US Const, amend V, MICH ConsT 1963, art 10,

§ 2, and MCL 213.75, MSA 8.265(25). We assert our due

process rights under US Const, amend XIV.

C. The return of the award for just compensation to

MDOT by the lower court voids MDOT's

condemnation efforts, and MDOT is now liable for

trespass- iuisance.

We have not been paid our award of just compensation.

We have adjudicated this controversy and MDOT was

ordered to pay us $237,000.00, plus interest, in just

compensation. We have not yet received this money, and in

fact, MDOT, while paying the award into the Court in

1999*° is now back in possession of the money*’. In

essence, MDOT has not paid us just compensation for the

taking, we have signed no document conferring any

ownership interest to MDOT, and we therefore are owners of

our entire parcel, as was the case prior to the institution of ;

this proceeding. Government immunity has been waived by

the State of Michigan for cases of trespass-nuisance and

MDOT is liable for such charges; we know this because only

the legislature can waive the defense of governmental

immunity, Cain v Lansing Housing Comm'n, 235 Mich App

566, 599 NW2d 516 (1999), and it did so in the

Governmental Tort Liability Act under MCL 691. 1407(1),

MSA 3.996(107)(1).

“ Payment was made via the State Treasury.

*" See Appendix D and the letter from the Wexford County Clerk dated

June 17, 2003, returning the money to MDOT.

28

D. Our property is a cattle farm and the taking

requires a cattle pass to be installed to allow access

from the building side of the taking to the large land

track side of the taking.

Federal regulations authorize the instillation of cattle

passes for properties that are dissected with roads and

highways. According to CFR 712.805, stock passes may be

incorporated into a highway design in order to reduce the

disruptive operation of a farm. Our farm has severely been

hindered. Our residence and buildings are on a triangular

shaped parcel consisting of approximately 19+ acres; the

majority of our pastures and farm fields, and all of our

natural water supply remain on the other parcel which is

inaccessible to us due to the highway. Our award for just

compensation is appropriate when it places us in as good a

condition as we had been in before the taking; and that

condition involved our cattle having access to natural water

and our pastures and fields.

CONCLUSION

Cases involving states as a party involve a great deal of

resources on the side of the state and limited resources from

the side of the opposition; as such, we are proceeding in

proper person (primarily due to our having limited resources)

and ask that this Court liberally construe our filings as we are

not formally educated in law. We endeavor to read and

follow the rules of the Court and the law; if we error in

method or procedure, please recognize that the error is not

done purposely. We truly feel we have a case of significant

importance that can, and does, affect the citizens of the

Public Land states. It is our goal to improve not only

ourselves with respect to our lands, but our state, and our

Country, much as the Founding Fathers aimed to do in the

late 1700's.

This petition for a writ of certiorari should be granted.

OO ee

Respectfully submitted,

August 2003

Carl Edwin Fagerman

Bertha Louise Fagerman

9107 E30 RD

Cadillac, MI 49601

(231) 775-6390

30

APPENDIX A: OPINIONS, ORDERS, FINDINGS OF FACT

STATE OF MICHIGAN

In the Circuit Court for the County of Wexford

In the matter of the complaint of the Michigan Department of

Transportation for condemnation Of private property for

highway purposes in and Through the Township of Haring,

Wexford County, Michigan

Hon. Charles D. Corwin

Court No. 96-12551-CC

Michigan Department of Transportation (MDOT)

Plaintiff

Vv

Carl E. Fagerman and Bertha L. Fagerman, husband and wife

Respondents

Lawrence P. Schneider (P27325)

Special Assistant Attorney General

Attorney for Plaintiff

1375 South Washington Avenue

Suite 300

Lansing MI 48910

(517) 482-1659/(517) 482-2689(fax)

Robert D. Sheehan (P44634)

Attorney at Law

Attorney for Defendants

1460 Walton Blvd

Suite 109

Rochester Hills MI 48309

(810) 650-5366

Judgment on Jury Verdict

At a session of the Wexford County Circuit Court

held in the City of Cadillac on July 1, 1999.

Present: The Honorable Charles D. Corwin, Circuit Judge

A jury trial was held in this case on June 15 through June

18, 1999 before visiting Circuit Judge Carl L Horn. The jury

rendered its verdict on June 18, 1999, finding that Defendants

Carl and Bertha Fagerman ("the Fagermans") are entitled to

total just compensation in the amount of $237,000 as a result

of the taking described in the Declaration of Taking filed in

this case. As a result, the Court enters the following orders:

IT IS ORDERED THAT Plaintiff MDOT pay to the

Fagermans the total sum of $237,000 as full just

compensation for all claims they may have against the

Plaintiff by reason of the taking, less all amounts for just

compensation previously paid to the Fagermans. In the event

that the Fagermans do not timely provide MDOT or the State

of Michigan with signed and completed W-9 forms to enable

direct payment to them, the payment of this sum shall be

made to the Wexford County Circuit Court (FIN 38-

6007337) to be held by the Court on behalf of the Fagermans

until such time as they provide the necessary W-9 forms to

the court.

IT IS FURTHER ORDERED THAT any due, payable,

or delinquent taxes, assessments, charges, or indebtedness, if

there are any, shall be deducted by Plaintiff MDOT prior to

its payment of this sum to the Fagermans.

IT IS FUTHER ORDERED THAT Plaintiff pay

statutory interest on the amount of the total just compensation

awarded by the jury, less sums previously paid to the

Fagermans, from the date that the Fagermans voluntarily

surrendered possession on April 1, 1998 to the date of

payment of the amount due or any part of the amount.

IT IS FURTHER ORDERED THAT the Plaintiff pay a

reasonable attorney fee to Robert D. Sheehan, P.C. (EIN 38-

3445868), the attorney for the Fagermans, of up to one-third

of the difference between the good faith offer of just

compensation of $179,200 and the jury verdict of $237,000,

plus any applicable interest. In the event that the parties are

unable to agree upon the amount of the reasonable attorney

fee to be paid to the attorney for the Fagermans, either side

may petition the Court for a hearing to decide the disputed

issue.

IT IS FUTHER ORDERED THAT the Plaintiff

reimburse the Fagermans for reasonable expert witness fees

as required by MDL 213.66. In the event that the parties are

unable to agree upon the amount of any expert witness fee or

whether certain work performed by the expert is

reimbursabie, either side may petition the Court for a hearing

to decide the disputed issue.

IT IS FUTHER ORDERED THAT Plaintiff reimburse

the Defendants costs which may be taxed under MCR 2.625.

IT IS FUTHER ORDERED THAT any requests by

either party for costs or sanctions under MCR 2.403 or MCR

2.405 shall be filed within the time limits provided by the

applicable court rules.

/s/

Charles D. Corwin (P27138)

Circuit Judge

for

Carl L. Horn (P15124)

Visiting Circuit Judge

Filed July 01, 1999.

STATE OF MICHIGAN

Il

In the Circuit Court for the County of Wexford

In the matter of the complaint of the Michigan Department of

Transportation for condemnation Of private property for

highway purposes in and Through the Township of Haring,

Wexford County, Michigan

Hon. Charles D. Corwin

Court No. 96-12551-CC

Michigan Department of Transportation (MDOT)

Plaintiff

V

Carl E. Fagerman and Bertha L. Fagerman, husband and wife

Respondents

Lawrence P. Schneider (P27325)

Special Assistant Attorney General

Attorney for Plaintiff

1375 South Washington Avenue

Suite 300

Lansing MI 48910

(517) 482-1659/(517) 482-2689(fax)

Robert D. Sheehan (P44634)

Attorney at Law

Attorney for Defendants

1460 Walton Blvd

Suite 109

Rochester Hills MI 48309

(810) 650-5366

IV

Judgment on Jury Verdict

At a session of the Wexford County Circuit Court

held in the City of Cadillac on July 8, 1999.

Present: The Honorable Charles D. Corwin, Circuit Judge

A jury trial was held in this case on June 15 through June

18, 1999 before visiting Circuit Judge Carl L Horn. The jury

rendered its verdict on June 18, 1999, finding that Defendants

Carl and Bertha Fagerman ("the Fagermans") are entitled to

total just compensation in the amount of $237,000 as a result

of the taking described in the Declaration of Taking filed in

this case. As a result, the Court enters the following orders:

IT IS ORDERED THAT Plaintiff MDOT pay to the

Fagermans the total sum of $237,000 as full just

compensation for all claims they may have against the

Plaintiff by reason of the taking, less all amounts for just

compensation previously paid to the Fagermans. In the event

that the Fagermans do not timely provide MDOT or the State

of Michigan with signed and completed W-9 forms to enable

direct payment to them, the payment of this sum shall be

made to the Wexford County Circuit Court (FIN 38-

6007337) to be held by the Court on behalf of the Fagermans

until such time as they provide the necessary W-9 forms to

the court.

IT IS FUTHER ORDERED THAT Plaintiff pay statutory

interest on the amount of the total just compensation awarded

by the jury, less sums previously paid to the Fagermans, from

the date of taking. October 24, 1996, to the date of payment

of the amount due or any part of the amount.

IT IS FURTHER ORDERED THAT the Plaintiff pay a

reasonable attorney fee to Robert D. Sheehan, P.C. (EIN 38-

3445868), the attorney for the Fagermans, of thirty three and

one-third percent (33 1/3%) of the difference between the _

good faith offer of just compensation of $179,200 and the

jury verdict of $237,000 plus any applicable interest within

fifteen (15) days of this Order being entered.

IT IS FUTHER ORDERED THAT the Plaintiff reimburse

the Fagermans for reasonable expert witness fees as required

by MDL 213.66. In the event that the parties are unable to

agree upon the amount of any expert witness fee or whether

certain work performed by the expert is reimbursable, either

side may petition the Court for a hearing to decide the

disputed issue.

IT IS FUTHER ORDERED THAT Plaintiff reimburse the

Defendants costs which may be taxed under MCR 2.625.

IT IS FUTHER ORDERED THAT there shall be no costs

or sanctions awarded to either party under MCR 2.403 or

MCR 2.405.

IT IS FUTHER ORDERED THAT MDOT is to install or

pay for costs of installing two (2) driveways to access the

Fagermans' property within the next ninety (90) days.

IT IS FUTHER ORDERED THAT MDOT waives any

claims for rent, pursuant to a prior Court Order dated

December 18, 1997, from the Fagermans.

Dated: 7/8/99

/s/

Charles D. Corwin (P27138)

Circuit Judge

for

Carl L. Horn (P15124)

Visiting Circuit Judge

Filed July 09, 1999.

VI

STATE OF MICHIGAN

In the Circuit Court for the County of Wexford

In the matter of the complaint of the Michigan Department of

Transportation for condemnation Of private property for

highway purposes in and Through the Township of Haring,

Wexford County, Michigan

Hon. Charles D. Corwin

Court No. 96-12551-CC

Michigan Department of Transportation (MDOT)

Plaintiff

Vv

Carl E. Fagerman and Bertha L. Fagerman, husband and wife

Respondents

Lawrence P. Schneider (P27325)

Special Assistant Attorney General

Attorney for Plaintiff

1375 South Washington Avenue

Suite 300

Lansing MI 48910

(517) 482-1659/(517) 482-2689(fax)

Robert D. Sheehan (P44634)

Attorney at Law

Attorney for Defendants

1460 Walton Blvd

Suite 109

Rochester Hills MI 48309

(248) 650-5366/(248) 650-5368

E Vil

Amended Judgment on Jury Verdict

At a session of the Wexford County Circuit Court

held in the City of Cadillac on July 23, 1999.

Present: The Honorable Charles D. Corwin, Circuit Judge

A jury trial was held in this case on June 15 through June

18, 1999 before visiting Circuit Judge Carl L Horn. The jury

rendered its verdict on June 18, 1999, finding that Defendants

Carl and Bertha Fagerman ("the Fagermans") are entitled to

total just compensation in the amount of $237,000 as a result

of the taking described in the Declaration of Taking filed in

this case. The Court entered a Judgment on Jury Verdict on

July 1, 1999, but the Defendants filed timely objections

which were delayed in the mail, so the parties have agreed

that the original Judgment be vacated and that this Judgment

shall be controlling. As a result, the Court enters the

following orders:

IT IS ORDERED THAT the Judgment on Jury Verdict

entered by the Court on July 1, 1999 is vacated and that this

Amended Judgment on Jury Verdict shall superceded that

Judgment in all respects.

IT IS ORDERED THAT Plaintiff MDOT pay to the

Fagermans the total sum of $237,000 as full just

compensation for all claims they may have against the

Plaintiff by reason of the taking, less all amounts for just

compensation previously paid to the Fagermans. In the event

that the Fagermans do not timely provide MDOT or the State

of Michigan with signed and completed W-9 forms to enable

direct payment to them, the payment of this sum shall be

made to the Wexford County Circuit Court (FIN 38-

6007337) to be held by the Court on behalf of the Fagermans

until such time as they provide the necessary W-9 forms to

the court.

Vill

IT IS FURTHER ORDERED THAT any due, payable,

or delinquent taxes, assessments, charges, or indebtedness, if

there are any, shall be deducted by Plaintiff MDOT prior to

its payment of this sum to the Fagermans upon proof by the

Treasurer of the State of Michigan of the amounts withheld

and the reasons for the withholding.

IT IS FUTHER ORDERED THAT Plaintiff pay

statutory interest on the amount of the total just compensation

awarded by the jury, less sums previously paid to the

Fagermans, from the date that the Fagermans voluntarily

surrendered possession on April 1, 1998 to the date of

payment of the amount due or any part of the amount.

IT IS FURTHER ORDERED THAT, Plaintiff and

Defendants having agreed that the circumstances of the case

justify reimbursement of a reasonable attorney fee, Plaintiff

shall pay the law firm representing Defendants, Robert D.

Sheehan, P.C. (EIN 38-3445868) one third of the difference

between the initia! written good faith offer $179,200 and the

ultimate award of $237,000 plus one-third of the interest paid

to Defendants.

IT IS FUTHER ORDERED THAT this Judgment does

not dispose of all the claims or adjudicated all of the rights

and liabilities of the parties for the reason that Defendants’

right to petition for the reimbursement of appraisal fees, costs

or other related matters as may be allowed by law, and

Plaintiff's right to petition for mediation sanctions under

MCR 2.403, are expressly reserved. With those exceptions,

however, this Judgment disposes of all claims arising out of

the taking of Defendants’ property for highway purposes.

/s/

Charles D. Corwin (P27138)

Circuit Judge

for

Carl L. Horn (P15124)

Visiting Circuit Judge

IX

We stipulate to the form of this judgment:

‘/s/

Lawrence P. Schneider (P27325)

Special Assistant Attorney General

Attorney for Plaintiff

/s/

Robert Sheehan (P44634)

Attorney for Defendants!

Filed July 26, 1999.

4

' Please note that we forbid our attorney from signing any document

without our explicit consent according to our contractual agreement made

at the time of his hire. MDOT and the Court were fully aware of this

contractual agreement. The relevant letter and requirements list from us

to our attorney is reproduced in Appendix D of this Petition. This

stipulation was made without our consent.

STATE OF MICHIGAN

In the Circuit Court for the County of Wexford

In the matter of the complaint of the Michigan Department of

Transportation for condemnation Of private property for

highway purposes in and Through the Township of Haring, -

Wexford County, Michigan

Hon. Charles D. Corwin

Court No. 96-12551-CC

Michigan Department of Transportation (MDOT)

Plaintiff

Vv

Carl E. Fagerman and Bertha L. Fagerman, husband and wife

Respondents

Lawrence P. Schneider (P27325)

Special Assistant Attorney General

Attorney for Plaintiff

1375 South Washington Avenue

Suite 300

Lansing MI 48910

(517) 482-1659/(517) 482-2689(fax)

Robert D. Sheehan (P44634)

Attorney at Law

Attorney for Defendants

1460 Walton Blvd

Suite 109

Rochester Hills MI 48309

(248) 650-5366/(248) 650-5368

XI

Order Denying Motion for New Trial

At a session of the Wexford County Circuit Court

held in the City of Cadillac on September 10, 1999.

Present: The Honorable Charles D. Corwin, Circuit Judge

The Respondents filed a motion for a new trial and

supporting brief of August 12, 1999. The Plaintiff filed an

answer to the motion and supporting brief on September 2,

1999. Oral arguments were heard before visiting Judge Carl

L. Horn on September 10, 1999. For the reasons stated on

the record by the Court:

IT IS ORDERED THAT the motion for new trial is

denied.

/s/

Charles D. Corwin (P27138)

Circuit Judge

for

Carl L. Horn (P15124)

Visiting Circuit Judge

Filed October 11, 1999.

XII

STATE OF MICHIGAN

COURT OF APPEALS

DEPARTMENT OF TRANSPORTATION,

Plaintiff-Appellee,

Vv

CARL E. FAGERMAN and BERTHA L. FAGERMAN,

Defendants-Appellants.

No. 223147 UNPUBLISHED

Wexford Circuit Court July 26, 2002

LC No. 96-012551-CC

Before: Meter, P.J., and Markey and Owens, JJ.

PER CURIAM.

Defendants appeal by right from a judgment entered after

a jury trial in this condemnation case.

In 1995, plaintiff determined that it was necessary to

acquire through eminent domain a portion of defendants’

232.1-acre working farm in order to relocate Highway US-

131 around the city of Cadillac. Plaintiff intended to acquire

a 38.53-acre parcel that would dissect defendants’ farm into

two remainders separated by a four-lane highway. Plaintiff

also intended to acquire a temporary easement or right-of-

way over 1.87 acres of defendants’ remainder for use during

highway construction. Following a jury trial, the trial court

entered an amended judgment on the jury’s verdict that

awarded just compensation of $237,000, plus interest and

attorney fees, to defendants. We affirm.

Defendants first argue that the circuit court lacked subject

matter jurisdiction in this proceeding because plaintiff failed

to make a good-faith purchase offer, as required by MCL

213.55(1).-After defendants filed their appellate brief

challenging the subject matter jurisdiction of the circuit court,

plaintiff moved in this Court for partial dismissal, contending

XIll

oe

that In re Acquisition of Land for the Central Industrial Park

Project, 177 Mich App 11; 441 NW2d 27 (1989), a case

relied on by defendants, was wrongly decided. This Court

then issued an order denying the motion for partial dismissal

but directing the parties to file supplemental briefs essentially

addressing whether the holding of Jn re Acquisition, supra,

should stand in light of MCL 213.56(6).

In Acquisition, the governmental entity had initiated

eminent domain proceedings against the defendants’ property

after having made an offer to purchase the property, but the

offer did not include an amount for the moveable fixtures.

Acquisition, supra at 13, 17. This Court concluded that the

circuit court lacked subject matter jurisdiction over the

governmental entity’s complaint because the offer, by not

including an amount for the movable fixtures, did not

constitute a good-faith offer and because a good-faith offer

was necessary to establish subject matter jurisdiction. Jd. at

17-18. Defendants in the instant case contend that plaintiff's

offer to them also excluded, inter alia, amounts for fixtures

and therefore did not constitute a good-faith offer. Relying on

Acquisition, they thus contend that the circuit court lacked

subject-matter jurisdiction.

However, MCL 213.56(6) states, in part:

an order of the court upholding or determining public

necessity or upholding the validity of the

condemnation proceeding is appealable to the court of

appeals only by leave of that court pursuant to the

general court rules. In the absence of a timely filed

appeal of the order, an appeal shall not be granted and

the order is not appealable as part of an appeal from a

judgment as to just compensation.

In Detroit v Lucas, 180 Mich App 47, 50; 446 NW2d 596

(1989), this Court deemed the above language “clear and

unambiguous” in holding that the defendants had failed to

file timely for leave to appeal and thus had waived their

challenge to a finding of necessity with regard to

XIV

condemnation. See also Calloway-Gaines v Crime Victim

Services Comm, 463 Mich 341, 346; 616 NW2d 674 (2000)

(the plain language of subsection 6(6), requiring the timely

filing of an appeal from an order upholding the determination

of public necessity or upholding the validity of the

condemnation proceeding, constitutes a limitation on the

jurisdiction of the Court of Appeals).

We conclude that in light of MCL 213.56(6), the

Acquisition panel erred in failing to recognize that it lacked

jurisdiction to consider the issue whether a good-faith

purchase offer had been made; indeed, such jurisdiction was

lacking because the issue was not timely raised but was

instead raised after just compensation had been determined

and appealed’. In the instant case, defendants similarly did

not timely raise the issue of a defective good-faith offer.

Accordingly, defendants have waived appellate review of the

issue, and we lack jurisdiction to consider it’.

Defendants additionally contend that the trial court abused

its discretion in denying their motion for a new trial or

additur. In their post-trial motion below, defendants argued

' We acknowledge that in Travelers Ins Co v Detroit Edison Co, 465

Mich 185, 204; 631 NW2d 733 (2001), the Court made a general

statement that subject matter jurisdiction is not subject to waiver. We do

not find Travelers dispositive here, however, in light of the specific

statute enacted by the Legislature, MCL 213.56(6), that limits the Court

of Appeals’ jurisdiction to consider challenges such as that raised in

Acquisition and that raised in the instant case.

? We note that pursuant to 1996 PA 474, the condemnation statute at

issue in this case was amended effective December 26, 1996. Because the

instant complaint was filed in October 1996, the amendments are

inapplicable. However, all future cases will be governed by these

amendments, which essentially bolster the meaning of MCL 213.56(6) by

indicating that landowners contending that an offer does not constitute a

good-faith offer because of excluded amounts for certain property must

challenge the exclusions within a set time period, and if they do not do so,

the challenge will be “barred.” See current MCL 213.55(3). In light of

these amendments that will govern future cases, we find it unnecessary to

resolve in a published opinion the specific questions we asked the parties

to brief on appeal, as they are unlikely to reappear in the future.

XV

that the jury’s verdict was grossly inadequate because it did

not include $44,535 necessary to install new driveways. A

trial court’s decision regarding the grant or denial of additur

is accorded deference and will-not be reversed on appeal

absent an abuse of discretion. Setterington v Pontiac General

Hosp, 223 Mich App 594, 608; 568 NW2d 93 (1997). In

addition, a trial court has discretion in granting a new trial,

and this Court “will not interfere absent a palpable abuse of

discretion.” Jd. :

After carefully reviewing the record below, we discern no

error with respect to the denial of additur. Indeed, the trial

court noted the parties’ stipulation that defendants would

accept the jury’s verdict as to just compensation and not look

to plaintiff to pay for or install new driveways’. Moreover,

given that the jury’s verdict was within the range of evidence

and that defendants had ample opportunity to challenge

plaintiff's appraisal figures at trial, we cannot conclude that

the trial court abused its discretion in denying additur.

Setterington, supra at 609.

With regard to defendants’ remaining issues, we conclude

that appellate review has been waived by defendants’ failure

to object timely during trial. Napier v Jacobs, 429 Mich 222,

227-228; 414 NW2d 862 (1987). In Napier, the Michigan

Supreme Court explained the rationale for timely

preservation of issues for appellate review:

A general rule of trial practice is that failure to

timely raise an issue waives review of that issue on

appeal. See Spencer v Black, 232 Mich 675; 206 NW

493 (1925) (issue raised for the first time on appeal

not properly before the Court); Molitor v Burns, 318

Mich 261, 263-265; 28 NW2d 106 (1947) (failure to

renew motion for directed verdict at close of

> We note that at oral argument counsel for plaintiff informed this Court

that plaintiff subsequently agreed to install the new driveways and has in

fact done so.

XVI

defendant’s case waived any error). Generally, to

preserve an issue for appellate review, it must be

properly raised at trial. Kinney v Folkerts, 84 Mich

616, 625; 48 NW 283 (1891) (“[p]arties cannot

remain silent, and thereby lie in wait to ground error,

after the trial is over, upon a neglect of the court to

instruct the jury as to something which was not called

to its attention on the trial, especially in civil cases”);

Moden v Superintendents of the Poor, 183 Mich 120,

125-126; 149 NW 1064 (1914) (statute of limitations

defense waived by failure to raise it at trial); Miller v

Cook, 292 Mich 683, 688-689; 291 NW 54 (1940)

(absent proper motion for a directed verdict of

negligence as a matter of law, the question cannot be

raised on appeal); Taylor v Lowe, 372 Mich 282, 284;

126 NW2d 104 (1964) (“counsel may not stand by,

electing as we must assume to ‘take his chances on

the verdict of the jury’ [citations omitted] and then

raise questions which could and should have been

raised in time for corrective judicial action”). The rule

is based upon the nature of the adversary process and

the need for judicial efficiency. 3 LaFave & Israel,

Criminal Procedure,§ 26.5(c), pp 251-252,

summarizes the basis for this rule:

“There are many rationales for the raise-or-waive

rule: that it is a necessary corollary of our adversary

system in which issues are framed by the litigants and

presented to a court; that fairness to all parties

requires a litigant to advance his contentions at a time

when there is an opportunity to respond to them

factually, if his opponent chooses to; that the rule

promotes efficient trial proceedings; that reversing for

error not preserved permits the losing side to second-

guess its tactical decisions after they do not produce

the desired result; and that there is something

unseemly about telling a lower court it was wrong

XVII

when it never was presented with the opportunity to

be right. The principal rationale, however, is judicial

economy. There are two components to judicial

economy: (1) if the losing side can obtain an

appellate reversal because of error not objected to, the

parties and public are put to the expense of retrial that

could have been avoided had an objection been made;

and (2) if an issue had been raised in the trial court, it

could have been resolved there, and the parties and

public would be spared the expense of an appeal.”

[Quoting State v Applegate, 39 Or App 17, 21; 591 P

2d 371 (1979).]

[Napier, supra at 227-229.]

While it is true that this Court may review an unpreserved

issue to prevent a miscarriage of justice, as noted in Napier,

supra at 233-234, such review in a civil case is to be

exercised “quite sparingly”:

Defendant raises no injustice other than the loss of a

favorable jury verdict. While defendant asserts that

manifest injustice and a miscarriage of justice would

|

|

occur if appellate review of the sufficiency of the

evidence were denied in the instant case, defendant

fails to describe the nature of that injustice. More than

the fact of the loss of the money judgment . . . in this

civil case is needed to show a miscarriage of justice

or manifest injustice. A contrary ruling in the instant

case would, in effect, impose a duty in every civil

case on the trial judge to review sua sponte the

sufficiency of the evidence and to grant unrequested

_ verdicts. Such a rule would be in patent conflict with

our adversary system of civil justice. [Footnote

omitted. ]

We are convinced that no miscarriage of justice will result

from our failure to review the unpreserved issues raised on

appeal in the instant case. Defendants had ample opportunity

XVIII

to set forth their case and their damages estimate at trial, and

the jury’s verdict was within the range of evidence.

Affirmed.

/s/ Patrick M. Meter

/s/ Jane E. Markey

/s/ Donald S. Owens

XIX

COURT OF APPEALS, STATE OF MICHIGAN

ORDER

Dept of Transportation v Carl E Fagerman

Docket No. 223147

LC No. 96-012551-CC

Patrick M. Meter,

Presiding Judge

Jane E. Markey

: Donald S. Owens

Judges

The Court orders that the motion for rehearing is DENIED.

/s/

Presiding Judge

A true copy entered and certified by Sandra Schultz Mengel,

Chief Clerk, on SEP 11, 2002

/s/

Chief Clerk

Order

Michigan Supreme Court

Entered: February 28, 2003 Lansing, Michigan

Maura D. Corrigan, Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman, Justices

122445 & (101)

Department of Transportation, Plaintiff-Appellee,

V

Carl Fagerman and Bertha Fagerman, Defendants-

Appellants.

SC: 122445

COA: 223147

Wexford CC: 96-012551-CC

On order of the court, the application for leave to appeal

from the July 26, 2002 decision of the Court of Appeals is

considered, and it is DENIED, because we are not persuaded

that the questions presented should be reviewed by this

Court. The motion to file a reply brief is also considered, and

it is DENIED.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court,

certify that the foregoing is a true and complete copy of the

order entered at the direction of the Court.

February 28, 2003 /s/ Corbin R. Davis

Order

Michigan Supreme Court

Entered: May 30, 2003 Lansing, Michigan

Maura D. Corrigan, Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman, Justices

122445 & (104)

Department of Transportation, Plaintiff-Appellee,

Vv

Carl Edwin Fagerman and Bertha Louise Fagerman,

Defendants-Appellants.

SC: 122445

COA: 223147

Wexford CC: 96-012551-CC

On order of the court, the motion for reconsideration of

this Court's order of February 28, 2003 is considered, and it

is DENIED because it does not appear that the order was

entered erroneously.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court,

certify that the foregoing is a true and complete copy of the

order entered at the direction of the Court.

May 30, 2003 /s/ Corbin R. Davis

ts XXII

APPENDIX B: CONSTITUTIONAL PROVISIONS, STATUTES &

REGULATIONS

No State shall enter into any Treaty, Alliance, or

Confederation; grant letters of marque and reprisal; coin

money; emit bills of credit; make any thing but gold and

silver coin a tender in payment of debts; pass any bill of

attainder, ex post facto law, or law impairing the obligation

of contracts, or grant any title of nobility.

US Const. art. I, § 10, cl. 1

The Congress shall have power to dispose of and make all

needful rules and regulations respecting the territory or other

property belonging to the United States.

US Const. art. IV, § 3

This constitution, and the laws of the United States which

shall be made in pursuance thereof; all treaties made, or

which shall be made, under the authority of the United States,

-Shall be the supreme law of the land; and the judges in every

state shall be bound thereby, any thing in the constitution or

laws of any state to the contrary notwithstanding.

US Const, art VI, § 2

No person shal! be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be

taken for public use without just compensation

US Const, amend V

XXIli

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

US Const. amend XIV, §1.

No person shall be denied the equal protection of the laws;

nor shall any person be denied the enjoyment of his. civil or

political rights or be discriminated against in the exercise

thereof because of religion, race, color or national origin.

The Legislature shall implement this section by appropriate

legislation.

MICH CONST 1963, art 1, § 2

The right of trial by jury shall remain, but shall be waived in

all civil cases unless demanded by one of the parties in the

manner prescribed by law. In all civil cases tried by 12 jurors

a verdict shall be received when 10 jurors agree.

MICH CONST 1963, art 1, § 14

The state shall not be a party to, nor be financially interested

in, any work of internal improvement, nor engage in Carrying

on any such work, except for public internal improvements

provided by law.

MICH CONST 1963, art 3, § 6

No law shall embrace more than one object, which shall be

expressed in its title. No bill shall be altered or amended on

its passage through either house so as to change its original

purpose as determined by its total content and not alone by its

title”

XXIV

MICH CONST 1963, art 4, § 24

No law shall be revised, altered or amended by reference to

its title only. The section or sections of the act altered or

amended shall be re-enacted and published at length.

MICH CONST 1963, art 4, § 25

All final decisions, findings, rulings and orders of any

administrative officer or agency existing under the

constitution or by law, which are judicial or quasi-judicial

and affect private rights or licenses, shall be subject to direct

review by the courts as provided by law. This review shall

include, as a minimum, the determination whether such final

decisions, findings, rulings and orders are authorized by law;

and , in cases in which a hearing is required, whether the

Same are supported by competent material and substantial

evidence on the whole record.

MICH CONST 1963, art 6, § 28

Private property shall not be taken for public use without just

compensation therefore being first made or secured in a

manner prescribed by law. Compensation shall be

determined in proceedings in a court of record.

MICH CONST 1963, art 10, § 2

The Legislature shall not authorize by private or special law

the sale or conveyance of any real estate belonging to any

person.

MICH CONST 1908, art 5, § 31

"Private property shall not be taken by the public nor by any

corporation for public use, without the necessity therefore

being first determined and just compensation therefor being

first made or secured in such manner as shall be prescribed

by law.

MICH ConsT 1908, art 13, § 1

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 12 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: Provided, that the foregoing provision

shall not be construed to apply to the action of

commissioners of highways or road commissioners in the

official discharge of their duties.

MICH CONST 1908, art 13, § 2

The Legislature shall not authorize, by private or special law,

the sale or conveyance of any real estate belonging to any

person.

MICH Const 1850, art 4, § 23

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.

MICH CONST 1850, art 15 § 9

Private property shall not be taken for public improvements

in cities and villages without the consent of the owner, unless

the compensation therefor shall first be determined by a jury

of freeholders and actually paid or secured in the manner

provided by law.

Mick Const 1850, art 15, § 15

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 therefore, except when to be made

by the state, shall be ascertained by a jury of twelve free-

holders, residing in the vicinity of such property, or by not

less than three commissioners, appointed by a court of

XXVI

record, as shall be prescribed by law: Provided, the

foregoing provision shall in no case be construed to apply to

the action of commissioners of highways in the official

discharge of their duty as highway commissioners.

MICH CONST 1850, art 18, § 2

The property of no person shall be taken for public use

without just compensation therefor. Private roads may be

opened in the manner to be prescribed by law; but in every

case the necessity of the road and the amount of all damages

to be sustained by the opening thereof, shall be first

determined by a jury of freeholders; and such amount,

together with the expenses of proceedings, shall be paid by

the person or persons to be benefited.

MICH CONST 1850, art 18, § 14

XXVII

1980 PA 87, the Uniform condemnation Procedures Act”

AN ACT to provide procedures for the condemnation,

acquisition, or exercise of eminent domain of real or personal

property by public agencies or private agencies; to provide

for an agency's entry upon land for certain purposes; to

provide for damages; to prescribe remedies; and to repeal

certain acts and parts of acts.

The People of the State of Michigan enact: |

213.51 Definitions.

Sec. 1. As used in this act:

(a) “Acquire” or “take” means to secure transfer of

ownership of property to an agency by involuntary

expropriation.

(b) “Acquisition” or “taking” means the transfer of

ownership of property to an agency by involuntary

expropriation.

(c) “Agency” means a public agency or private agency.

(d) “Constructive taking” or “de facto taking” means

conduct, other than regularly established judicial

proceedings, sufficient to constitute a taking of

property within the meaning of section 2 of article 10

of the state constitution of 1963.

(e) “Owner” means a person, fiduciary, partnership,

association, corporation, or a governmental unit or

agency having an estate, title, or interest, including

beneficial, possessory, and security interest, in a

property sought to be condemned.

(f) “Parcel” means an identifiable unit of land, whether

physically contiguous or not, having substantially

common beneficial ownership, all or part of which is

*? The UCPA is reproduced, as it was effective at the commencement of

our court case, October 24, 1996.

XXVIII

being acquired, and treated as separate for valuation

purposes.

(g) “Private agency” means a person, partnership,

association, corporation, or entity, other than a public

agency, authorized by law to condemn property.

(h) “Property” means land, buildings, structures,

tenements, hereditaments, easements, tangible and

intangible property, and property rights whether real,

personal, or mixed, including fluid mineral and gas

rights.

(i) “Public agency” means a governmental unit, officer,

or subdivision authorized by law to condemn property.

213.51a Short title. [M.S.A. 8.265(1a)]

Sec. la. This act shall be known and may be cited as “the

uniform condemnation procedures act”.

213.52 Standards provided; limitations; applicable laws

and court rules; commencement of condemnation action;

proof of taking of property; certificate of public necessity

as condition of instituting judicial proceedings. [M.S.A.

8.265(2)]

Sec. 2.

(1) This act provides standards for the acquisition of

property by an agency, the conduct of condemnation

actions, and the determination of just compensation. It

does not confer the power of eminent domain, and does

not prescribe or restrict the purposes for which or the

persons by whom that power may be exercised. All laws

and court rules applicable to civil actions shall apply to

condemnation proceedings except as otherwise provided

in this act.

(2) If property is to be acquired by an agency through the

exercise of its power of eminent domain, the agency

shall commence a condemnation action for that purpose.

An agency shall not intentionally make it necessary for

an owner of property to commence an action, including

XXIX

an action for constructive taking or de facto taking, to

prove the fact of the taking of the property.

(3) If a private agency is required by law to secure a

’ certificate of public necessity from the public service

commission or other public agency before it may acquire

property, the private agency shall not institute judicial

proceedings to acquire the property uniil it has secured

the required certificate.

213.53 Fluid mineral and gas rights. [M.S.A. 8.265(3)]

Sec. 3. Fluid mineral and gas rights shall be considered

excluded from an instrument by which an agency acquires an

interest in land unless specifically included in the instrument.

The exercise of the fluid mineral and gas rights, as permitted

by law, shall not interfere with the use of the property

acquired for a public purpose.

213.54 Payment of just compensation for property if

practical value or utility of remainder destroyed; zoning

variance; entry upon property; purpose; notice;

restitution for actual damages; “actual damage” defined;

civil action for order permitting entry; contents of

complaint; granting limited license for entry; terms;

manner of entry under subsection (3); “environmental

inspection” defined.

Sec. 4.

(1) If the acquisition of a portion of a particular parcel of

property actually needed by an agency would destroy the

practical value or utility of the remainder of that

particular parcel, the agency shall acquire the fee to the

whole of the particular parcel of property. The agency

may elect whether to receive title and possession of the

remainder of the parcel. The question as to whether the

practical value or utility of the remainder of the parcel of

property is in fact destroyed shall be determined by the

court or jury and incorporated in its verdict.

\

XXX

(2) An agency or an agent or employee of an agency may

enter upon property before filing an action for the

purpose of making surveys, measurements,

examinations, tests, soundings, and borings; or taking

photographs or samplings; or appraising the property; or

conducting an environmental inspection; or determining

whether the property is suitable to take for public

purposes. The entry may be made upon reasonable

notice to the owner and at reasonable hours. An entry

made pursuant to this subsection shall not be construed

as a taking. The owner or his or her representative shall

be given a reasonable opportunity to accompany the

agency's agent or employee during the entry upon the

property. The agency shall make restitution for actual

damage resulting from the entry, which may be

recovered by special motion before the court or by

separate action if an action for condemnation has not

been filed. The term “actual damage” as used in this

subsection does not include, and an agency shall not

make restitution for, response activity, as defined in

section 20101 of part 201 (environmental remediation)

of the natural resources and environmental protection

act, Act No. 451 of the Public Acts of 1994, being

section 324.20101 of the Michigan Compiled Laws, or

for diminution in the value or utility of a parcel which is

caused by the discovery of information as the result of a

survey, an appraisal, a measurement, photography, or an

environmental inspection made pursuant to this section.

(3) If reasonable efforts to accomplish entry under

subsection (2) have been obstructed or denied, the

agency may commence a civil action in the circuit court

in the county in which the property or any part of the

property is located for an order permitting entry. The

complaint shall state the facts making the entry

necessary, the date on which entry is sought, and the

duration and the method proposed for protecting the

defendant against damage. The court may grant a limited

license for entry upon such terms as justice and —

require, including the following:

a. A description of the purpose of the entry.

b. The scope of activities that are permitted.

c. The terms and conditions of the entry with

respect to the time, place, and manner of the

entry.

(4) An entry made pursuant to subsection (3) shall be

made in a manner that minimizes any damage to the

property and any hardship, burden, or damage to a

person in lawful possession of the property.

(5) As used in this section, “environmental inspection”

means the testing or inspection including the taking of

samples of the soil, groundwater, structures, or other

materials or substances in, on, or under the property for

the purpose of determining whether chemical,

bacteriological, radioactive, or other environmental

contamination exists and, if it exists, the nature and

extent of such contamination.

213.55 Just compensation; amount; offer; review of

appraisal; filing complaint for acquisition; resubmitted

offers; documents; claim for additional items of

compensable property or damage; contents of complaint;

deposit.

Sec. 5.

—@) Except as provided in section 25(4), before initiating

negotiations for the purchase of property, the agency

shall establish an amount which it believes to be just

compensation for the property and promptly shall submit

to the owner a good faith offer to acquire the property

for the full amount so established. The good faith offer

shall state whether the agency reserves or waives its

rights to bring federal or state cost recovery actions

against the present owner of the property arising out of a

release of hazardous substances at the property and the

XXXII

agency's appraisal of just compensation for the property

shall reflect such reservation or waiver. The amount

shall not be less than the agency's appraisal of just

compensation for the property. The agency shall provide

the owner of the property and the owner's attorney with

an opportunity to review the written appraisal, if an

appraisal has been prepared, or if an appraisal has not

been prepared, the agency shall provide the owner or the

Owner's attorney with a written statement and summary,

showing the basis for the amount the agency established

as just compensation for the property. If an agency is

unable to agree with the owner for the purchase of the

property, after making a good faith written offer to

purchase the property, the agency may file a complaint

for the acquisition of the property in the circuit court in

the county in which the property is located. If a parcel of

property is situated in 2 or more counties and an owner

resides in | of the counties, the complaint may be filed in

the county in which the owner is a resident. If a parcel of

property is situated in 2 or more counties and an owner

does not reside in 1 of the counties, the complaint may

be filed in any of the counties in which the property is

situated. The complaint shall ask that the court ascertain

and determine just compensation to be made for the

acquisition of the described property. If an agency has

made a good faith offer pursuant to this section prior to

the effective date of section 6a but has not filed a

complaint for acquisition of the property, the agency

may withdraw the original offer and resubmit a good ~

faith offer that complies with this act as amended by the

amendatory act that added section 6a.

(2) In addition to other allegations required or permitted

by law, the complaint shall contain or have annexed to it

all of the following:

(a) A plan showing the property to be taken.

XXXII

(b) A statement of purpose for which the property is

being acquired, and a request for other relief to

which the agency is entitled by law.

(c) The name of each known owner of the property

being taken.

(d) A statement setting forth the time within which

motions for review under section 6 shall be filed;

the amount which will be awarded and the persons

to whom the amount will be paid in the event of a

default; and the deposit and escrow arrangements

made pursuant to subsection (3).

(e) A declaration signed by an authorized official of

the agency declaring that the property is being

taken by the agency. The declaration shall be

recorded with the register of deeds of each county

. within which the property is situated. The

declaration shall include:

(i) A description of the property to be acquired

sufficient for its identification and the name of

each known owner.

(ii) | A statement of the estate or interest in the

property being taken. Fluid mineral and gas

rights and rights of access to and over the

highway are considered excluded from the rights

acquired unless the rights are specifically

included.

(iii) | A statement of the sum of money estimated

by the agency to be just compensation for each

parcel of property being acquired.

(iv) | Whether the agency reserves or waives its

rights to bring federal or state cost recovery

actions against the present owner of the property.

(3) At the time the complaint is filed, the agency shall

deposit the amount estimated to be just compensation

with a bank, trust company, or title company in the

business of handling real estate escrows, or with the state

XXXIV

treasurer, municipal treasurer, or county treasurer. The

deposit shall be set aside and held for the benefit of the

owners, to be disbursed upon order of the court as

provided in section 8.

213.56 Challenge by owner; motion to review necessity;

hearing; determination by public agency

binding on court; judicial determination of public

necessity in acquisition by private agency; certificate by

public service commission or federal agency as prima

facie case; decision of court; final judgment; appeal;

conclusive presumption of necessity.

Sec. 6.

(1) Within the time prescribed to responsively plead after

service of a complaint, an owner of the property desiring

to challenge the necessity of acquisition of all or part of

the property for the purposes stated in the complaint may

file a motion in the pending action asking that the

necessity be reviewed. The hearing shall be held within

30 days after the filing of the motion.

(2) With respect to an acquisition by a public agency, the

determination of public necessity by that agency is

binding on the court in the absence of a showing of

fraud, error of law, or abuse of discretion.

(3) Except as otherwise provided in this section, with

respect to an acquisition by a private agency, the court at

the hearing shall determine the public necessity of the

acquisition of the particular parcel. The granting of a

permanent or temporary certificate by the public service

commission constitutes a prima facie case that the

project in furtherance of which the particular parcel

would be acquired is required by the public convenience

and necessity. The granting of a certificate of public

convenience and necessity by the public service

commission pursuant to the electric transmission line

certification act is binding on the court.

XXXV

(4) The court shall render a decision within 60 days after

the date on which the hearing is first scheduled.

(5) The court's determination of a motion to review

necessity is a final judgment.

(6) Notwithstanding section 309 of the revised judicature

act of 1961, Act No. 236 of the Public Acts of 1961,

being section 600.309 of the Michigan Compiled Laws,

an order of the court upholding or determining public

necessity or upholding the validity of the condemnation

proceeding is appealable to the court of appeals only by

leave of that court pursuant to the general court rules. In

the absence of a timely filed appeal of the order, an

appeal shall not be granted and the order is not

appealable as part of an appeal from a judgment as to

just compensation.

(7) If a motion to review necessity is not filed as provided

in this section, necessity shall be conclusively presumed

to exist and the right to have necessity reviewed or

further considered is waived.

213.56a Reversal of agency's election of reservation of

rights; revised good faith offer; stipulation to reverse

agency election and waive cost recovery claim against

owner. [M.S.A. 8.265(6a)]}

Sec. 6a.

(1) If an agency elects to reserve its rights to bring a state

or federal cost recovery claim against an owner, the

court upon motion of the owner, which must be filed

within the time prescribed to responsively plead after

service of a complaint, may reverse that election and

order the agency to waive its claims, if the owner

establishes by affidavit, and after an evidentiary hearing

if requested by the agency in the time prescribed to

provide an answer to a motion, | or more of the

following circumstances exist with respect to the

property:

XXXVI

(a) The property is a single family residence and has

been used solely for residential purposes.

(b) The property is “agricultural property” as defined

in section 3 of the environmental response act, Act

No. 307 of the Public Acts of 1982, being section

299.603 of the Michigan Compiled Laws, and the

reservation of rights arises out of a release of

hazardous substances caused by the application of a

fertilizer, soil conditioner, agronomically applied

manure, Or a pesticide or a combination of these

substances according to label directions and

according to generally accepted agricultural and

management practices, as defined by the Michigan

right to farm act, Act No. 93 of the Public Acts of

1981, being sections 286.471 to 286.474 of the

Michigan Compiled Laws.

(c) The owner is the only identified potentially

responsible party, the extent of contamination and

cost of remediation has been reasonably quantified,

and the estimated cost of remediation does not

exceed the agency's appraised value of the property.

(2) If the court reverses the agency's election of

reservation of rights under subsection (1), the agency

shall submit to the owner a revised good faith offer. The

revised good faith offer shall be considered the good

faith offer for purposes of sections 5 and 16.

(3) An agency and an owner may stipulate that the agency

will reverse its election and waive its rights to bring a

state or federal cost recovery claim against an owner.

213.57 Vesting of title in agency; vesting of right to just

compensation; delay or denial.

Sec. 7.

(1) If a motion to review necessity is not filed within the

time specified in section 6, the title to the property

described in the petition shall vest in the agency as of the

date on which the complaint was filed. The right to just

XXXVII

compensation shall then-vest in the persons entitled to

the compensation and be secured as provided in this act.

Title to the property shall also vest in the agency, as

provided in this act, if the motion to review necessity is

denied after a hearing and after any further right to

appeal has terminated.

(2) Neither a motion filed pursuant to section 6a,

challenging the agency's decision to reserve its rights to

bring federal or state cost recovery actions nor a motion

challenging the agency's escrow under section 8 shall

delay vesting of title in the agency.

‘

213.58 Payment by escrowee of money deposited; funds

remaining in escrow as security for remediation costs;

court order; released funds; circumstances; reversal of

agency's election under § 213.5éa.

Sec. 8.

(1) Except as provided in subsections (3), if a motion for

review as provided in section 6 is not filed or is denied

and the right to appeal has terminated or if interim

possession is granted pursuant to section 9, the court

shall order the escrowee to pay the money deposited

pursuant to section 5, for or on account of the just

compensation that may be awarded pursuant to section

13. However, if the agency reserves its rights to bring a

state or federal cost recovery claim against an owner,

under circumstances that the court considers just, the

court may allow any portion of the money deposited

under section 5 to remain in escrow as security for

remediation costs of environmental contamination on the

condemned parcel. An agency shall present an affidavit

and environmental report establishing that the funds

placed on deposit pursuant to section 5 are likely to be

required to remediate the property. The amount in

escrow shall not exceed the likely costs of remediation if oie

the property were used for its highest and best use.

Nothing contained in this subsection is intended to limit

XXXVIII

or expand an owner's or agency's right to bring federal or

State cost recovery claims. Except as provided in

subsection (2),, upon the motion of any party, the court

shall apportion the estimated compensation among the

claimants to the compensation.

(2) Notwithstanding any order entered by the court

requiring money deposited pursuant to section 5 to

remain in escrow for the payment of estimated

remediation costs of contaminated property, the funds in

escrow, plus interest, shall be released among the

claimants to the just compensation under circumstances

that the court considers just, including any of the

following circumstances:

(a) The court finds that the applicable statutory

requirements for remediation have changed and the

amount remaining in escrow is no longer required in

full or in part to remediate the alleged

environmental contamination.

(b) The court finds that the anticipated need for the

remediation of the alleged environmental

contamination is not required or is not required to

the extent of the funds remaining on deposit.

(c) If the remediation of the property is not initiated by

the agency within 2 years of surrender of possession

pursuant to section 9 and the agency is unable to

show good cause for delay.

(d) The costs actually expended for remediation are

less than the estimated costs of remediation or less

than the amount of money remaining in escrow.

(¢) A court issues an order of apportionment of

remediation responsibility.

(3) If the court orders the agency to reverse its election

under section 6a(1), the court shall order the escrowee to

pay the amount of the revised good faith offer for or on

account of the just compensation that may be awarded

pursuant to section 13, and to pay the balance of the

XXXI1X

escrow to the agency. If the agency seeks possession

before the court decides whether to reverse the agency's

election or before submitting a revised good faith offer,

the agency may request that the court order a portion of

the escrow withheld in anticipation of a zeduction in the

revised good faith offer, with the balance to be paid by

the escrowee for or on account of the just compensation

that may be awarded pursuant to section 13. If the court

denies the request to reverse the agency's election or

when the revised good faith offer is submitted, the court

shall order the escrowee to pay any unpaid portion of it

for or on account of the owner and to pay any balance to

the agency.

213.59 Surrender of possession of property to agency;

time and terms; enforcement; granting interim possession

to private agency; indemnity bond; appeal; liability for

damages; repayment as condition of order setting aside

determination of public necessity; delay or denial.

Sec. 9.

(1) Upon filing of a complaint and making the deposit as

provided in section 5 and after opportunity is given for a

person to file a motion for review under section 6 or, if

motion for review is filed, upon final determination of

the motion, the court shall fix the time and terms for

surrender of possession of the property to the agency and

enforce surrender by appropriate order or other process.

The court also may require surrender of possession of

the property after the motion for review filed under

section 6 has been heard, determined and denied by the

circuit court, but before a final determination on appeal,

if the agency demonstrates a reasonable need.

(2) If interim possession is granted to a private agency, the

court, upon motion of the owner, may order the private

agency to file an indemnity bond in an amount

determined by the court as necessary to adequately

XL

secure just compensation to the owner for the property

taken.

(3) If an order granting interim possession is entered, an

appeal from the order or any other part of the

proceedings shall not act as a stay of the possession

order. An agency shall be liable for damages caused by

the possession if its right to possession is denied by the

trial court or on appeal. |

(4) Repayment of all sums advanced shall be a condition

precedent to entry of a final order setting aside a

determination of public necessity.

(5) Neither a motion filed pursuant to section 6a,

challenging the agency's decision to reserve its rights to

bring federal or state cost recovery actions, nor a motion

challenging the agency's escrow under section 8, shall

delay the vesting of possession in the agency provided

that the court shall not order possession surrendered to

the agency before it orders that the escrow be distributed

as provided in section 8(1) or (3).

213.60 Order fixing date for hearing. [M.S.A. 8.265(10)]

Sec. 10. Upon filing the complaint, the court shall enter an

order fixing a day for a hearing which shall not be less than

21 days after the complaint is served. The order shall recite

or have annexed to the order the names of the persons

mentioned in the complaint as owners, reasonably describe

the property to be taken, state the purpose of the complaint,

and order the persons to appear before the court at the time

fixed in the order for the hearing on the complaint.

213.61 Scheduling order; exchange of appraisal reports;

opportunity for discovery; appraisal report; testimony

relating to value of real property; orders to facilitate

compliance.

Sec. 11. On the date of the hearing the court shall set a date

certain for the pretrial as to parcels not previously disposed

of.

XLI

213.62 Just compensation; trial by jury. [M.S.A.

8.265(12)]

Sec. 12. ; ?

(1) A plaintiff or defendant may demand a trial by jury as

to the issue of just compensation pursuant to applicable

law and court rules. The jury shall consist of 6 qualified

electors selected pursuant to chapter 13 of Act No. 236

of the Public Acts of 1961, as amended, being sections

600.1301 to 600.1376 of the Michigan Compiled Laws,

and shall be governed by court rules applicable to juries

in civil cases in circuit court.

(2) Unless there is good cause shown to the contrary, there

shall be a separate trial as to just compensation with

respect to each parcel.

213.63 Just compensation; verdict; division of award.

[M.S.A. 8.265(13)]

Sec. 13. The jury or the court shall award in its verdict just

compensation for each parcel. After awarding the verdict, on

request of any party, the court shall divide the award among

the respective parties in interest, whether the interest is that

of mortgagee, lessee, lienor, or otherwise, in accordance with

proper evidence submitted by the parties in interest.

213.64 Notes and exhibits to assist jury. [M.S.A.

8.265(14)]

Sec. 14. To assist the jury in arriving at its verdict the court

may allow the jury when it retires to take with it notes and

any map, plan, or other exhibit admitted in the case as an

exhibit.

213.65 Interest on judgment amount.

Sec. 15. The court shall award interest on the judgment

amount from the date of the filing of the complaint to the

date of payment of the amount, or any part of the amount.

Interest shall be computed at the interest rate applicable to a

federal income tax deficiency or penalty. However, an owner

remaining in possession after the date of filing shall be

XLIl

considered to have waived the interest for the period of the

possession. If it is determined that a de facto acquisition

occurred at a date earlier than the date of filing, interest

awarded pursuant to this section shall be calculated from the

earlier date.

213.66 Witness fees and compensation; reimbursement of

owner's attorney fees and other expenses.

Sec. 16.

(1) A witness, either ordinary or expert, in a proceeding

under this act shall receive from the agency the

reasonable fees and compensation provided by law for

similar services in ordinary civil actions in circuit court,

including the reasonable expenses for preparation and

trial.

(2) If the property owner, by motion to review necessity

or otherwise, successfully challenges the agency's right

to acquire the property, or the legal sufficiency of the

proceedings, and the court finds the proposed acquisition

improper, the court shall order the agency to reimburse

the owner for actual reasonable attorney fees and other

expenses incurred in defending against the improper

acquisition.

(3) If the amount finally determined to be just

compensation for the property acquired exceeds the

amount of the written offer as defined in section 5, the

court shall order reimbursement in whole or in part to the

owner by the agency of the owner's reasonable attorney's

fees, but not in excess of 1/3 of the amount by which the

ultimate award exceeds the agency's written offer as

defined by section 5.

(4). Expert witness fees provided for in subsection (1)

shall be allowed with respect to an expert whose services

were reasonably necessary to allow the owner to prepare

for trial. The agency's liability for expert witness fees

shall not be diminished or affected by the failure of the

owner to call an expert as a witness if the failure is

XLII

caused by settlement or other disposition of the case or

issue with which the expert is concerned.

213.67 Discontinuance. [M.S.A. 8.265(17)]

Sec. 17. The agency shall not discontinue the action after the

granting of possession or vesting of title to the property

taken. In case of a discontinuance, the agency, as a condition

of discontinuance, shall pay the actual expenses, reasonable

attorney fees, and actual damages to all the parties affected

by the discontinuance as determined by the court.

213.68 Reimbursement of expenses in evaluating agency's

offer, preparing for trial, or negotiating settlement;

enforcement of rights; filing claim.

Sec. 18.

(1) If any agency acquires property without

commencement of an action or abandons its efforts to

acquire property after making the jurisdictional written

offer required by section 5 to the owners of the property

and if the owners of the property reasonably relied upon

the agency's final action, the owners shall be reimbursed

by the agency for the reasonable expenses incurred in

evaluating the agency's good faith written offer, in

preparing for trial, or in negotiating a settlement, if those

expenses would have been taxable as costs under section

16. For the purpose of this section, the jurisdictional

written offer shall include only written offers made

under threat of institution of judicial proceedings to

acquire the property.

(2) The rights created by this section may be enforced in a

court having jurisdiction over claims for damages

against the agency, or in a court in which an action under

this act for the acquisition of the property could have

deen filed.

(3) The claim for reimbursement of expenses shall be filed

within 1 year after the date on which the property is

acquired or after the date on which notice of

XLIV

abandonment of the intention to acquire the property is

mailed to the owner.

213.69 Agreement on compensation or method of

determining compensation. [M.S.A. 8.265(19)]

Sec. 19. At any stage of the proceedings, the agency and the

Owner may agree upon all or part of the compensation, or

upon a method for determining all or a part of the

compensation, and may proceed to have those parts not

agreed upon determined as provided in this act. The agency

may make payment of a part of the compensation agreed

upon, or enter into a contract to pay in the future based upon

an agreed method of determining the compensation.

213.70 Determination of fair market value.

Sec. 20. A change in the fair market value before the date of

the filing of the complaint which the agency or the owner

establishes was substantially due to the general knowledge of

the imminence of the acquiring by the agency, other than that

due to physical deterioration of the property within the

reasonable control of the owner, shall be disregarded in

determining fair market value. The property shall be valued

in all cases as though the acquisition had not been

contemplated. The date of acquiring and of valuation in a

proceeding pursuant to this act shall be the date of filing

unless the parties agree to a different date, or unless a

different date is determined by a counterclaim filed pursuant

to section 21. The value of each parcel, and of a part of a

parcel remaining after the acquisition of a part of the parcel,

shall be determined with respect to the condition of the

property and the state of the market on the date of valuation.

213.71 Counterclaim. [M.S.A. 8.265(21)]

Sec. 21. A defendant may assert as a counterclaim, any claim

for damages based on conduct by an agency which

constitutes a constructive or de facto taking of property.

213.72 Lease, sale, or conveyance of property; terms;

record. [M.S.A. 8.265(22)]

XLV

Sec. 22. If property is acquired by an agency, the agency may

lease, sell, or convey any portion not needed, on whatever

terms the agency considers proper. A record of the leases and

sales, showing the appraised value, the sale price, and other

pertinent information, shall be kept in the office of the

agency.

213.73 Enhancement in value as consideration in

determining compensation; complaint; compensation;

requiring agency to acquire portion claimed to be

enhanced; burden of proof. [M.S.A. 8.265(23)]|

Sec. 23.

(1) Enhancement in value of the remainder of a parcel, by

laying out, altering, widening, or other types of improvement;

by changing the scope or location of the improvement; or by

either action in combination with discontinuing an

improvement, shall be considered in determining

compensation for the taking.

(2) When enhancement in value is to be considered in

determining compensation, the agency shall set forth in the

complaint the fact that enhancement benefits are claimed and

describe the construction proposed to be made which will

create the enhancement. If the construction is not completed

in substantial compliance with the plan upon which the

agency based its claim of enhancement benefits, the owner

may reopen the question of compensation within 1 year after

the termination of construction. If the construction is not in

substantial compliance, the owner is entitled to the difference

between the value of the property as affected by the actual

construction and the value of the property as it would have

been, had construction been completed according to plan.

The owner shall not recover more compensation than would

have been payable if there was not a claim of enhancement

benefits.

(3) Upon demand of the owner before trial, the court may

require the agency to acquire that portion of the remainder of

the tract which the agency claims to be enhanced if the

XLVI

agency claims enhancement. This subsection shall not apply

if the agency withdraws its claim of enhancement benefits

before trial.

(4) The agency has the burden of proof with respect to the

existence of enhancement benefits.

213.74 Coercive actions prohibited. [M.S.A. 8.265(24)]

Sec. 24. In order to compel an agreement on the price to be

paid for the property, an agency may not advance the time of

condemnation, defer negotiations or condemnation, defer the

deposit of funds for the use of the owner, nor take any other

action coercive in nature.

213.75 Commencement of actions for acquisition of

property.

Sec. 2).

(1) Except as otherwise provided by subsections (2), (3),

and (4), effective May 1, 1980, all actions for the

acquisition of property by an agency under the power of

eminent domain shall be commenced pursuant to and be

governed by this act.

(2) Actions for the acquisition of property by an agency

under Act No. 149 of the Public Acts of 1911, as

amended, being sections 213.21 to 213.41 of the

Michigan Compiled Laws, Act No. 238 of the Public

Acts of 1923, as amended, being sections 486.251 to

486.254 of the Michigan Compiled Laws, and Act No.

295 of the Public Acts of 1966, as amended, being

sections 213.361 to 213.391 of the Michigan Compiled

Laws, may be commenced pursuant to and be governed

by this act, effective May 1, 1980.

(3) All actions for the acquisition of property by an

agency under Act No. 149 of the Public Acts of 1911, as

amended, being sections 213.21 to 213.41 of the

Michigan Compiled Laws, and Act No. 295 of the Public

Acts of 1966, as amended, being sections 213.361 to

213.391 of the Michigan Compiled Laws, shall be

XLVII

commenced pursuant to and be governed by this act,

effective April 1, 1983.

(4) All actions for the acquisition of property by an

agency under Act No. 238 of the Public Acts of 1923, as

amended, being sections 486.251 to 486.254 of the

Michigan Compiled Laws, shall be commenced pursuant

to and be governed by this act, effective April 1, 1985.

If such agency initiates negotiations prior to April 1,

1985 for the purchase of property without following the

procedure set forth in section 5(1) and does not

commence an action to acquire the property under Act

No. 238 of the Public Acts of 1923 prior to April 1,

1985, the agency may negotiate after April 1, 1985 for

the purchase of the property and may commence an

action under this act to acquire the property if the agency

first submits the good faith written offer provided in

section 5(1).

213.76 Repealer

Sec. 26. The following acts and parts of acts are repealed,

effective April 1, 1983:

(a) Sections 6 to 21 of Act No. 149 of the Public Acts of

1911, being sections 213.26 to 213.41 of the

Compiled Laws of 1970.

(b) Sections 6 to 30 of Act No. 295 of the Public Acts of

1966, as amended, being sections 213.366 to 213.390

of the Compiled Laws of 1970.

213.77 Repealer

Sec. 27. Sections 2a to 2j of Act No. 238 of the Public Acts

of 1923, being sections 486.252a to 486.252) of the

Compiled Laws of 1970, are repealed effective April, 1985.

XLVIII

Warrant 40653

The United States of America, To all to whom these

presents shall come, Greeting: Whereas, in pursuance of the

Act of Congress, approved March 3, 1855, entitled "An Act

in addition to certain Acts granting Bounty Land to certain

Officers and soldiers who have been engaged in the military

service of the United States," there has been deposited in the

General Land Office, Warrant No. 40653 for 80 acres, in

favor of Henry B Copeland”, Private Captain Sanders

Company, Georgia Militia, War 1812 with evidence that the

same has been duly located upon the West half of the South

west quarter of section Ten in Township Twenty two North of

Range Nine, West in the District of lands subject to sale at

Traverse City, Michigan, containing eighty acres, according

to the Official Plat of the Survey of said Lands returned to

the General Land Office by the surveyor general the said

warrant having been assigned by the said Henry B Copeland

to Septha (sp?) Boggess, and by him to J Rush Spencer, and

by him to Alonzo Chesborough, in whose favor said tract has

been located,

Now know ye, that there is therefore granted by the

United States unto the said Alonzo Chesborough, as assignee,

as aforesaid and to his heirs the tract of land above

described; to have and to hold the said tract of land, with the

appurtenances thereof, unto the said Alonzo Chesborough, as

assignee, as aforesaid and to his heirs and assigns forever.

In testimony whereof, I Ulysses S. Grant President of the

United States of America, have caused these letters to be

made patent, and the seal of the General land office to be

hereunto affixed. Given under my hand, at the City of

Washington, the tenth day of January in the year of our Lord

one thousand eight hundred and Seventy, and of the

independences of the United States the Ninety fourth. By the

President: U S Grant, by J N Burritt sec'y. J N Granger

Recorder of the General Land Office.

** Some of the spellings of the names are unclear.

XLIX

Warrant 96989

The United States of America, To all to whom these

presents shall come, Greeting: Whereas, in pursuance of the

Act of Congress, approved March 3, 1855, entitled "An Act

in addition to certain Acts granting Bounty Land to certain

Officers and soldiers who have been engaged in the military

service of the United States," there has been deposited in the

General Land Office, Warrant No. 96989 for 160 acres, in

favor of Ishtimishiake**, Widow of Islateatubby Warrior,

Captain George Colberts Company, Chickasaw Volunteers,

War 1812 with evidence that the same has been duly located -

upon the North west quarter of section ten, in Township

Twenty two North of Range Nine West in the District of lands

subject to sale at Traverse City, Michigan, containing one

hundred and sixty acres, according to the Official Plat of the

Survey of said Lands returned to the General Land Office by

the surveyor general the said warrant having been assigned

by the said Ishtimishiake to Seth P Bliss and David McIntyal,

and by them to Alonzo Chesborough in whose favor said

tract has been located,

Now know ye, that there is therefore granted by the

United States unto the said Alonzo Chesborough, as assignee,

as aforesaid and to his heirs the tract of land above

described; to have and to hold the said tract of land, with the

appurtenances thereof, unto the said Alonzo Chesborough, as

assignee, as aforesaid and to his heirs and assigns forever.

In testimony whereof, I Ulysses S. Grant President of the

United States of America, have caused these letters to be

made patent, and the seal of the General land office to be

hereunto affixed. Given under my hand, at the City of

Washington, the tenth day of January in the year of our Lord

one thousand eight hundred and Seventy, and of the

independences of the United States the Ninety fourth. By the

President: U S Grant, by J N Burritt sec'y. J N Granger

Recorder of the General Land Office.

“ Some of the spellings of the names are unclear.

Patent 4688

The United States of America, To all to whom these

presents shall come, Greeting: Whereas, D G Canfield of

Erie County New York has deposited in the General Land

Office of the United States, a certificate of the Register of the

Land Office at Traverse City Michigan whereby it appears

that full payment has been made by the said D G Canfield”

according to the provisions of the Act of Congress of the 24"

of April, 1820, entitled "An act making further provision for

the sale of the Public Lands," for the South East quarter of

the South West quarter of Section Ten in Township twenty

two North of Range nine west in the district of lands subject

to sale at Traverse City Michigan containing forty acres,

according to the Official Plat of the Survey of said Lands

returned to the General Land Office by the surveyor general,

which said tract has been purchased by the said D. G.

Canfield

Now know ye, that the United States of America, in

consideration of the premises, and in conformity with the

several acts of Congress in such case made and provided,

Have given and granted, and by these presents do give and

grant, unto the said D G Canfield and to his heirs, the said

tract above described: to have and to hold the same, together

with all the rights, privileges, immunities, and appurtenances,

of whatsoever nature, thereunto belonging, unto the said D G

Canfield and to his heirs and assigns forever.

In testimony whereof, I Ulysses S. Grant President of the

United States of America, have caused these letters to be

made patent, and the seal of the General Land Office to be

hereunto affixed. Given under my hand, at the City of

Washington, the tenth day of April in the year of our Lord

one thousand eight hundred and Seventy two, and of the

independences of the United States the Ninety sixth. By the

President: U S Grant, by J Pur ish (sp?) secretary. JR

Raynol (sp?) Recorder of the General Land Office.

** Some of the spellings of the names are unclear.

LI

Patent 4231

The United States of America, To all to whom these

presents shall come, Greeting: Whereas, Alonzo

Chesborough® of Niagana County New York has deposited

in the General Land Office of the United States, a certificate

of the Register of the Land Office at Traverse City Michigan

whereby it appears that full payment has been made by the

said Alonzo Chesborough according to the provisions of the

Act of Congress of the 24" of April, 1820, entitled "An act

making further provision for the sale of the Public Lands,"

for the North East quarter of the North East quarter, of

Section Ten, in Township twenty two North, of Range Nine

West, in the district of lands subject to sale at Traverse City

Michigan containing forty acres, according to the Official

Plat of the Survey of said Lands returned to the General Land

Office by the surveyor general, which said tract has been

purchased by the said Alonzo Chesborough.

Now know ye, that the United States of America, in

consideration of the premises, and in conformity with the

several acts of Congress in such case made and provided, Have

given and granted, and by these presents do give and grant, unto

the said Alonzo Chesborough and to his heirs, the said tract

above described: to have and to hold the same, together with all

the rights, privileges, immunities, and appurtenances, of

whatsoever nature, thereunto belonging, unto the said Alonzo

Chesborough and to his heirs and assigns forever.

In testimony whereof, I Ulysses S. Grant President of the

United States of American, have caused these letters to be

made patent, and the seal of the General land office to be

hereunto affixed. Given under my hand, at the City of

Washington, the first day of October in the year of our Lord

one thousand eight hundred and Sixty nine, and of the

independences of the United States the Ninety fourth. By the

President: U S Grant, by J N Burritt secretary. J N Granger

Recorder of the General Land Office.

“° Some of the spellings of the names and locations are unclear.

LIl

April 24, 1820 Act of Congress

An Act making further provision for the sale of the public

lands.

Be it enacted by the Senate and House of Representatives

of the United States of America, in Congress assembled, That

from and after the first day of July next, all the public lands

of the United States, the sale of which is, Or may be

authorized by law, shall, when offered at public sale, to the

highest bidder, be offered in half quarter sections; and when

offered at private sale, may be purchased, at the option of the

purchaser, either in entire sections, half sections, quarter

sections, or half quarter sections; and in every case of the

division of a quarter section, the line for the division thereof

shall run north and south, and the corners and contents of half

quarter sections which may thereafter be sold, shall be

ascertained in the manner, and on the principles directed and

prescribed by the second section 2f an act entitled, "" An act

concerning the mode of surv /ing the public lands of the

United States," passed on ihe eleventh day of February,

eighteen hundred and five; and fractional sections, containing

one hundred and sixty acres, or upwards, shall, in like

manner, as nearly as practicable, be sub-divided into half

quarter sections, under such rules and regulations as may be

prescribed by the Secretary of the Treasury; but fractional

sections, containing less than one hundred and sixty acres,

shall not be divided, but shall be sold entire: Provided, That

this section shall not be construed to alter any special

provision made by law for the sale of land in town lots.

Sec 2. And be it further enacted, That credit shall not be’

allowed for the purchase money on the sale of any of the

public lands which shall be sold after the first day of July

next, but every purchaser of land sold at public sale

thereafter, shall, on the day of purchases, make compiete

payment therefore; and the purchaser at private sale shall

produce, to the register of the land office. a receipt from the

treasurer of the United States, or from the receiver of public

LI

moneys of the district, for the amount of the purchase money

on any tract, before he shall enter the same at the land office:

and if any person, being the highest bidder, at public sale, for

a tract of land, shall fail to make payment therefore, on the

day on which the same was purchased, the tract shall be

again offered at public sale, on the next day of sale, and such

person shall not be capable of becoming the purchaser of that

or any other tract offered at such public sales.

Sec 3. And be it further enacted, That from and after the

first day of July next, the price at which the public lands shall

be offered for sale, shall be one dollar and twenty-five cents

an acre; and at every public sale, the highest bidder, who

shall make payment at aforesaid, shall be the purchaser; but

no land shall be sold, either at public or private sale, for a less

price than one dollar and twenty-five centers and acre; and all

the public land which shall have been offered at public sale

before the first day of July next, and which shal! then remain

unsold, as well as the lands that shall thereafter be offered at

public sale, according to law, and remain unsold at the close

of such public sales, shall be subject to be sold at private sale,

by entry at the land office, at one dollar and twenty-five cents

an acre, to be paid at the time of making such entry as

aforesaid; with the exception, however, of the lands which

may have reverted to the united States, for failure in

payment, and of the heretofore reserved sections for the

future disposal of Congress, in the states of Ohio and Indiana,

which shall be offered at public sale, as hereinafter directed.

Sec 4. And be it further enacted, That no lands which have

reverted, or which shall hereafter revert, and become

forfeited to the United States for failure in any manner to

make payment, shall, after the first day of July next, be

subject to entry at private sale, nor until the same shall have

been first offered to the highest bidder at public sale; and all

such lands which shall have reverted before the said first day

of July next, and which shall then belong to the United

States, together with the sections, and parts of sections,

LIV

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heretofore reserved for the future disposal of Congress,

which shall, at the time aforesaid, remain unsold, shall be

offered at public sale to the highest bidder, who shall make

payment therefore, in half quarter sections, at the land office

for the respective districts, on such day or days as shall, by

proclamation of the President of the United States, be

designated for that purpose; and all lands which shall revert

and become forfeited for failure of payment after the said

first day of July next, shall be offered in like manner at public

sale, at such time, or times as the President shall by his

proclamation designate for the purpose; Provided, That no

such lands shall be sold at any public sales hereby authorized,

for a less price than one dollar and twenty-five cents an acre

nor on any other terms than that of cash payment; and all the

lands offered at such public sales, and which shall remain

unsold at the closure thereof, shall be subject to entry at

private sale, in the same manner, and at the same price with

the other lands sold at private sale, at the respective land

offices.

Sec 5. And be it further enacted, That the several public

sales authorized by this act, shall, respectively, be kept open

for two weeks, and no longer; and the registers of the land

office and the receivers of public money shall, each,

respectively, be entitled to five dollars for each day's

attendance thereon.

Sec 6. And be it further enacted, That in every case

thereafter, where two of more persons shall apply for the

purchase, at private sale, of the same tract, at the same time,

the register shall determine the preference, by forthwith

offering the tract to the highest bidder.

Approved, April 24, 1820.

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Sab uie sited bi al at nal

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March 3, 1855 Act of Congress

An Act in addition to certain acts granting bounty land to

certain officers and soldiers who have been engaged in the

military service of the United States.

Be it enacted by the Senate and House of Representatives

of the United States of America, in Congress assembled, That

each of the surviving commissioned and non-commissioned

officers, musiciass, and privates, whether of regulars,

volunteers, rangers, or militia, who were regularly mustered

into the service of the united States, and every officer,

commissioned and non-commissioned, seaman, ordinary

seaman, flotilla-man, marine, clerk, and landsman in the

navy, in any of the wars in which this country has been

engaged since seventeen hundred and ninety, and each of the

survivors of the militia, or volunteers, or state troops of any

state or territory, called into military service, and regularly

mustered therein, and whose services have been paid by the

United States, shall be entitled to receive a certificate or

warrant from the Department of the Interior for one hundred

and sixty acres of land; and where any of those who have so

been mustered into service and paid shall have received a

certificate or warrant, he shall be entitled to a certificate or

warrant for such quantity of land as will make, in the whole,

with what he may have heretofore received, one hundred and

six

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