# Petition for Writ of Certiorari — Fagerman v. Michigan Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2102%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 1004 ## Text | \ 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. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2102%3A1. Public record. Not legal advice.