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*241 Just Compensation and the Framers Intent: a Constitutional Approach to Road Construction Damages in Partial Taking Cases

By February 20, 2019 One Comment

*241 JUST COMPENSATION AND THE FRAMERS’ INTENT: A CONSTITUTIONAL APPROACH TO ROAD CONSTRUCTION DAMAGES IN PARTIAL TAKING CASES

University of Detroit Mercy Law Review
Winter 2000

Alan T. Ackerman [FNa1]; and Noah Eliezer Yanich [FNaa1]

Copyright (c) 2000 University of Detroit Mercy School of Law; Alan T. Ackerman;and Noah Eliezer Yanich

Under well-settled judicial interpretations of the “Just Compensation” or “Takings” Clause of the Fifth Amendment [FN1] to the United States Constitution and its counterpart in the Michigan Constitution, [FN2] when only a portion of a landowner’s property is taken *242 by eminent domain, the general rule is that the landowner is entitled to just compensation both for the part of the property actually taken and also for any diminution in the value of the part not taken [FN3] which is traceable to the condemnation.

The partial takings rule is frequently applied in eminent domain proceedings undertaken for construction of new roads and highways or modification of existing ones. In that situation, Michigan law recognizes one principal qualification to the general rule: any loss of value to the remainder parcel attributable to diversion of traffic flow is not compensable.

The general rule regarding compensable damages in eminent domain cases involving partial takings has traditionally been distinguished from the rule that applies in inverse condemnation cases in which a landowner brings suit against a governmental entity alleging that it has caused some injury to his or her land equivalent to a physical taking. In inverse condemnation cases involving road construction projects in which there is no government action tantamount to a physical taking of property, courts in a number of jurisdictions have denied compensation for acts causing diminution in the value of the property, unless the landowner can allege and prove some injury unique to his or her land. [FN4] In other words, absent a direct appropriation of property (or its functional equivalent), the courts have generally required the landowner to show an injury different in kind from that suffered by other landowners in the vicinity of the project.

In the recent decision of Spiek v. Department of Transportation, [FN5] the Michigan Supreme Court had occasion to consider whether it would adopt the limitation on inverse condemnation cases imposed in many other jurisdictions. The landowners in Spiek were asserting a claim for inverse condemnation on the basis of traffic noise, vibration, pollutant emissions, and particulate depositions (dust and dirt) resulting from the construction of a service drive adjacent to their property. Drawing on an older Michigan case and several sister state cases, the Michigan Supreme Court held that the inverse condemnation claim could not be maintained because the plaintiffs had failed to allege an injury beyond the normal inconveniences *243 experienced by all landowners situated in proximity to a public highway.

The Spiek court plainly stated that its holding was limited to cases not involving direct or physical takings of property. [FN6] As such, it has no applicability to remainder damages in eminent domain cases. The weight of authority in other jurisdictions argues against any extension of this rule to cases involving an actual physical appropriation of land. More fundamentally, though, as will be demonstrated in this article, such an extension would be contrary to the intent of the framers of the Just Compensation Clause of the 1963 Michigan Constitution, as revealed by the minutes of the 1961 Constitutional Convention. In its rejection of an attempt to add language to the provision that would have allowed recovery for “road construction damages” on adjacent land, the delegates made it clear that they did not want to expand liability for such damages in inverse condemnation cases, but that they did desire to retain existing rules allowing for full compensation in cases where land was actually taken.

It is only since the adoption of the 1963 Constitution that the circuit courts have functioned as the tribunals for hearing condemnation cases. Under the 1908 constitution, the proceedings were not “judicial” at all but, rather, an “inquisitorial, special and summary proceeding” subject to judicial review and supervision for certain purposes. [FN7] However, under the current constitution, which requires that condemnation proceedings be documented in a court of record, condemnation must be handled in accord with the procedures followed in other judicial proceedings. [FN8] The proceedings are not limited to circuit courts; because the probate court is also a court of record, [FN9] it too may be empowered by the Michigan Legislature to conduct condemnation proceedings. [FN10] The Michigan Legislature may specify the procedures to be followed, failing which the ordinary rules governing civil trial procedures apply. [FN11]

*244 I. The Rule Regarding Just Compensation in Eminent Domain Cases

Involving Partial Takings

The rule governing the payment of just compensation in eminent domain cases in which only a part of a landowner’s land is condemned has a long tradition in our state and federal constitutional law. The rule is a straightforward application of the core principle of federal and state eminent domain law, which is that “just compensation” requires that landowners be compensated for the entire loss caused by the appropriation of their land, and thereby placed in as good a position as they would have been if the condemnation had not occurred. [FN12] The only way to fulfill that objective in a partial taking case is to compensate the landowner not only for the land taken, but also for reductions in the value of the remainder traceable to the condemnation or the creation of the project for which the land was condemned.

Fitzsimons & Galvin, Inc. v. Rogers [FN13] was one of the first Michigan Supreme Court cases to articulate the partial takings rule and to explain its rationale. The Fitzsimons & Galvin court began its discussion by holding that, under article 13, section 2 of the 1908 Michigan Constitution, the condemning authority must pay compensation in an amount that “puts the injured party in as good a condition as he would have been if the injury had not been inflicted.” [FN14] Citing an 1882 decision, [FN15] the court said that, where part of a landowner’s property is condemned, the compensation to be *245 paid “includes the value of the land [taken], or the amount to which the value of the property from which it is taken is depreciated.” [FN16] In City of Grand Rapids v. Barth, [FN17] the Michigan Supreme Court articulated what has become the modern formulation of the rule:

   The measure of damages is the injury done to the fair market value of the entire tract by the taking of only a part. In other words, the owner is entitled to recover the difference between the fair market value of the entire tract before the taking and the market value of what is left after the taking . . . . [FN18]

The Barth rule was quoted verbatim by the Michigan Supreme Court in State Highway Commissioner v. Walma, [FN19] and has been incorporated, with slight modifications, in the Michigan Standard Jury Instructions for “Partial Takings.” [FN20] In condemnation trials, the market value of the entire parcel before taking, as well as the value of the remainder, is usually proved through the testimony of expert appraisers.

The Michigan rule is by no means unique; the rule, or a variant of it, is used “almost universally” in the federal and state courts. [FN21] In Bauman v. Ross, [FN22] the United States Supreme Court observed that “[t]he just compensation required by the Constitution to be made to the owner is to be measured by the loss caused to him by the appropriation.” [FN23] “Consequently,” the Court said, “when only part of a parcel is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; *246 but the incidental injury or benefit to the part not taken is also to be considered.” [FN24]

In applying the partial takings rule, in principle any loss of market value to the remainder that results from the taking should be compensable. [FN25] By way of example, Michigan Standard Jury Instruction 90.12 lists six factors that may be considered in determining loss of a property’s market value. These six factors are:

   (1) its reduced size, (2) its altered shape, (3) reduced access, (4) any change in utility or desirability of what is left after the taking, (5) the effect of the applicable zoning ordinances on the remaining property, and (6) the use which the [condemning authority] intends to make of the property it is acquiring and the effect of that use upon the owner’s remaining property.” [FN26]

The Michigan courts apply the “before or after” rule to the calculation of severance damages except where a “cost to cure” method is appropriate. In Department of Transportation v. Sherburn, [FN27] the Michigan Court of Appeals offered the following summary of Michigan’s approach to the calculation of severance damages (including the “cost to cure” method):

   [W]here, as here, a partial taking occurs, it is possible for the property not taken (the remainder) to suffer damages attributable to the taking. These damages have been described as “severance damages,” which may be measured by calculating the difference between the market value of the property not taken before and after the taking. Where severance damages have occurred, it may sometimes prove possible for the property owner to perform certain actions *247 upon the property to rectify the injuries in whole or in part, thus decreasing the amount of severance damages and correspondingly increasing the parcel’s market value. These actions constitute a “curing” of the defects, and the financial expenditures necessary to do so constitute the condemnee’s cost to cure.

. . . .

We conclude, as prior Michigan law illustrates, that the proper measure of damages in a condemnation case involving a partial taking consists of the fair market value of the property taken plus severance damages to the remaining property if applicable. [FN28]

There is one category of damage to the remainder that the Michigan Supreme Court has declared to be non-compensable: damage resulting from reduced traffic flow to the property. In State Highway Commissioner v. Watt, [FN29] the defendants owned a parcel consisting of approximately twenty acres. A highway ran along the western boundary of the property and cut across its northwest corner. The state condemned a 1.3-acre portion of the easterly side of the property as part of a project to relocate the highway so that it would run east of the property. In determining the market value of the entire parcel before taking (and of the remainder after the taking) the landowner’s appraisers took into account the fact that a motel situated on the western side of the property on a “well traveled tourist highway” [FN30] would have “meager business prospects after traffic diversion to the new road.” [FN31] The trial court ruled that the just compensation owed to the landowners would be limited to the value of the land taken and could not include damages to the remainder arising from any decrease in commercial traffic. [FN32]

*248 The Michigan Supreme Court affirmed in a 4-to-3 decision. The majority adopted the analysis of, and quoted long passages from, a dissenting opinion in a Kansas case, Riddle v. State Highway Commission. [FN33] In a similar factual scenario, the Kansas Supreme Court held that damages resulting from loss of traffic flow were compensable. The Watt majority quoted a passage from the Riddle dissent that, while recognizing the general rule regarding recovery of damage to the remainder, stated that “courts generally, if not universally, recognize and approve an exception to this rule . . . .” [FN34] “[T]he owner of land abutting on a highway has no property or other vested right in the continuation of the flow of traffic which passes his door so long as he is not deprived of ingress and egress to the highway . . . .” [FN35] As such, the Kansas dissent continued, damages to the remainder from a change in traffic flow are not compensable in an eminent domain proceeding. [FN36]

The Watt court’s rejection of the rule in other states allowing damages for loss of traffic flow may be properly attributed to the court’s refusal to recognize a property right in the maintenance of any particular amount of traffic flow to or past a property by virtue of its proximity to a public highway. The government has the prerogative to build new roads [FN37] and to alter, vacate, or abandon existing public roads. [FN38] Conceptually, the advantage conferred on property by the existence of any particular system of public highways and the location of such property in relation thereto is not part of the bundle of rights recognized by Michigan law as incidental to property ownership and, thus, falls outside the ambit of matters for which the Fifth Amendment requires that just compensation be paid when governmental action impairs or destroys property value. [FN39]

*249 Thus, even where vacation of a public highway makes access to a particular property more problematic for a landowner, compensation need not be paid in the absence of an actual taking of a portion of the landowner’s property. If vacation of a street or road requires landowners elsewhere to take longer or more circuitous routes to their properties, the inconvenience is in the eyes of Michigan jurisprudence damnum absque injuria, and they have no right to demand “just compensation” in the non-condemnation context. [FN40]

Such problems are not a function of condemning property for a highway because a new highway could be built anywhere, and changes in traffic flow to commercial enterprises on existing streets and highways are a function of the use to which the entire highway system, as it exists from time to time, is put by the traveling public. Because the government neither requires nor forbids the public to follow any particular routes, the advantages and disadvantages of traffic flow patterns simply do not rise to the level of property interests and, hence, fall outside the ambit of constitutional principles of just compensation for “takings” of private property for public use. No one can be said to “own” the value of commercial traffic flowing on a highway in the sense of being able to compel continuation of that level of commercial traffic, or to demand compensation upon a diminution thereof traceable to governmental action. Similarly, no one has a property interest in obtaining access to an existing highway by the most direct possible means. [FN41]

If, however, existing means of direct access to a particular property are interfered with or destroyed, compensation must be paid. [FN42] Nothing the supreme court said in Watt contradicts the *250 established jurisprudence, which makes such takings compensable. However, compensation is to be calculated at the time land is first taken for public use in contemplation of such future adverse developments, rather than at some subsequent time when the use to which the land so taken is put adversely affects the remainder.

Losses attendant to diversion of traffic are logically distinct from losses traceable to reduction of access and should be treated differently in assessing the kinds of damages which are compensable in condemnation actions. Where a landowner’s business suffers because less traffic travels by the business, that loss is noncompensable. On the other hand, where a road construction project makes it more difficult for a landowner’s business customers to obtain access to the landowner’s property (such as through the construction of a median), losses attendant to such reduced and/or impaired access are properly compensable in the partial taking context.

With respect to the increase in noise level that may result from construction or expansion of a public highway, ambient noise may become an intruding nuisance [FN43] and is thus, like the grade of a highway, a potential detriment to abutting property owners that is properly compensable at the time land for a highway is first condemned. In other words, a landowner whose property is condemned for highway purposes can “sell” the right to make highway noise to the condemning authority.

Moreover, underlying the exception to the general rule of full compensation reflected in the Watt opinion may also be an assumption that changes in traffic flow are a function of multiple factors, and the fear that juries that attempt to sort out the effect of a condemnation on traffic patterns (and then must translate that effect into a change in market value) will be forced to engage in speculation. In any event, the Michigan Supreme Court’s holding in Watt conforms to a rule that is nearly universally followed in other jurisdictions. [FN44]

*251 In State Highway Commissioner v. Gulf Oil Corp., [FN45] the Michigan Supreme Court, citing Watt, reaffirmed that “diversion of traffic is not an element of damages in condemnation proceedings.” [FN46] Neither case held, however, that reduced access to remainder property attributable to a highway project might not be considered by the jury in assessing damages to the remainder.

Diversions of or reductions in traffic flow, while non-compensable, should not be confused with reductions in access to or from remainder property, which are compensable under Michigan law. [FN47] Access is a key component of property value, and the impairment of access that results from a partial taking of property often has significant real-world effects on value. [FN48] As such, before concluding that recovery for any portion of claimed severance damages should be precluded, courts must be careful to “identify the nature of the governmental interference and separate elements of damage caused solely by the diversion or rerouting of traffic generally from [those] elements of damage caused by preventing specific access to the property.” [FN49]

*252 II. The Spiek Decision and Inverse Condemnation Actions

Under Michigan law, an inverse condemnation action, in contrast to an eminent domain proceeding, is “one instituted by a landowner whose property has been taken for public use ‘without the commencement of condemnation proceedings.” ‘ [FN50] An actual physical appropriation of a parcel of land, or a portion of a parcel, is not necessary to establish a claim for inverse condemnation. “Any injury to the property of an individual which deprives the owner of the ordinary use of it is equivalent to a taking, and entitles him to compensation,” [FN51] even if it only results in a “partial diminution” [FN52] in value to the owner.

A. The Spiek Rule for Inverse Condemnation Cases

In Spiek, [FN53] the plaintiffs, in 1961, purchased a home abutting what was then a conventional road. Subsequently, as a result of construction of a major interstate highway, their property came to abut the service drive for the highway. “The service drive opened to traffic in 1976, and the section of the interstate running parallel to that service drive opened in 1979.” [FN54] The homeowners filed a complaint against the Michigan Department of Transportation, alleging that its decision to locate the service drive adjacent to their property had effectuated a taking under the Michigan Constitution by causing a dramatic increase in “the levels of noise, vibrations, pollution and dirt in the once-residential area . . . .” [FN55]

In a unanimous opinion, the Michigan Supreme Court held that the landowners could not maintain their inverse condemnation suit because they had not alleged “harm to [their] property that differs in *253 kind from the harm suffered by all living in proximity to a public highway in Michigan.” [FN56] As the court explained:

   The right to just compensation, in the context of an inverse condemnation suit for diminution in value caused by the alleged harmful [e]ffects to property abutting a public highway, exists only where the land owner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated. [FN57]

The Spiek court made it clear that, while “the Michigan courts have not had the opportunity to address this issue in recent years,” [FN58] this limitation on inverse condemnation recoveries is hardly a new one. The Michigan Supreme Court noted that “over one-hundred years ago, in Buhl v. Fort Street Union Depot Co., [FN59] this Court recognized the distinction between special or peculiar injuries and injuries suffered in common with the general public.” [FN60] Like Spiek, Buhl was an inverse condemnation action brought by a landowner who alleged that the closure of a street had effectuated a taking by making his property “less accessible.”

B. The Spiek Court’s Limitation of the “Different in Kind” Rule to Cases Not Involving a Direct or Physical Invasion of Property

In holding against the landowners, the Spiek court was careful to limit the principles enunciated to inverse condemnation cases in which there has been no direct invasion of the landowner’s property by a state agency. First, the Michigan Supreme Court cited approvingly to a portion of the opinion of the Court of Appeals stating that, “[I]t has long been recognized that a diminution in the value of property where there is no direct invasion of the property, does not result in a taking that requires compensation.” [FN61]

*254 Second, the Michigan Supreme Court cited with approval to the following passage from the United States Supreme Court decision in Richards v. Washington Terminal Co. [FN62]: “Any diminution of the value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a ‘taking’ within the constitutional provision.” [FN63]

Third, in distinguishing the United States Supreme Court’s decision in United States v. Causby, [FN64] the Michigan Supreme Court noted that the Causby case involved activity that “amounted to a physical invasion of the property.” [FN65] Moreover, in order to emphasize its belief that a different rule applied in cases in which there had been an actual physical invasion of a landowner’s property, the Michigan Supreme Court observed that “our plaintiffs have not suffered a physical invasion.” [FN66]

The direct appropriation of some or all of a landowner’s property by the government is the quintessential form of a “direct” or “physical” invasion of his property. [FN67] When only a portion of the property is taken, as discussed above, the long-standing general rule in eminent domain proceedings is that landowners are entitled to just compensation for all of the damages to their property caused by the taking. Those damages, in turn, are measured by the difference between the value of the entire parcel of property before taking, and the value of what remains after the taking.

Because the court in Spiek was careful to limit its holding to cases not involving a direct or physical invasion of a landowner’s property, the ruling has no applicability to eminent domain cases involving partial takings. Thus, Spiek does not abrogate the general rule regarding recovery of severance damages so as to require that damages be “different in kind” from those suffered by other nearby landowners in order to be compensable.

The Spiek rule makes sense as a limitation of governmental liability for damagestraceable to road construction projects. If any *255 landowner were permitted to come into court and seek damages for the diminution of the value of his or her property every time a state agency builds a road in the vicinity of that property, such agencies would be subject to virtually unlimited liability, which would wreak havoc on the budgeting process. Such concerns are not implicated where such liability is limited to landowners whose property is actually taken by the state, or whose property is affected in a manner different in kind from other landowners. As the discussion in Section III will demonstrate, this is precisely the line that the delegates to the 1961 Constitutional Convention sought to draw in formulating the Just Compensation Clause of the 1963 Constitution.

C. Cases in Other Jurisdictions Have Specifically Held that the “Different in Kind” Rule Does Not Apply in the Context of Severance Damage Recoveries

By making clear that the “different in kind” rule does not apply to cases involving direct appropriations of property, the Spiek court upholds a distinction that is recognized widely in other jurisdictions. Thus, for example, in Arkansas State Highway Commission v. Kesner, [FN68] the Supreme Court of Arkansas stated, “as a general principle, that, before a landowner can recover for damage to his property where there has been no actual taking, he must suffer direct and substantial damage peculiar to himself, and not suffered by other members of the public . . . .” [FN69] In State Highway Commission v. Bloom, [FN70] the South Dakota Supreme Court stated that “[W]here a part of an owner’s parcel or tract of land is taken for a public improvement such as a public highway, the owner is entitled to be compensated for the part taken and for consequential damage to the part not taken, even though the consequential damage is of a kind suffered by the public in common.” [FN71] Likewise, in State v. Board of Education of the City of Elizabeth, [FN72] the New Jersey Supreme Court stated:

   *256 A distinction must be made, however, between damages to a remainder area when part of a tract is physically appropriated, and damages to a tract no part of which is physically appropriated. In the former case it matters not that the injury is suffered in common with the general public. [FN73]

The Colorado Supreme Court has reached the same conclusion. In La Plata Electric Association, Inc. v. Cummins, [FN74] a case involving damages to the remainder flowing from the adverse aesthetic impact of the public project, the court stated:

   [W]e conclude that the general damage/special damage distinction has no validity in the present context, that is, when reduction in property value results from a taking of a portion of the land held by the property owner. In such circumstances, we hold that a property owner should be compensated for all damages that are the natural, necessary, and reasonable result of the taking. [FN75] This rule, the court said, “is supported by the decisions in a significant majority of the jurisdictions in this country that have considered these questions.” [FN76]

The Arizona Court of Appeals adopted the same approach in a recent unpublished opinion:

   A taking is a necessary element of a severance case, and the taking, no matter how large or small, is the distinguishing *257 factor. Once the condemnee establishes a taking, any factor bearing on the market value of the remaining parcel is admissible. . .. We do not believe that . . . in order to collect severance damages as result of a taking, the condemnee must show that the damages suffered are unique to the condemned property. [FN77]

The court added that precluding evidence of “a factor which potentially diminishes the value of the land . . . would be denying the condemnee’s constitutional right to compensation.” [FN78]

Finally, in Los Angeles County, Metropolitan Transportation Authority v. Continental Development Corporation, [FN79] the California Supreme Court stated:

   Severance damages are not limited to special and direct damages, but can be based on any factor, resulting from the project, that causes a decline in the fair market value of the property. . . . [T]he landowner seeking severance damages need only prove the value of his or her property has been impaired, not that other members of the public are not similarly situated. [FN80]

In an earlier case, the California high court had distinguished the kinds of damages recoverable in inverse condemnation and eminent domain cases:

   It is established that when a public improvement is made on property adjoining that of one who claims to be damaged by such general factors as change of neighborhood, noise, dust, change of view, diminished access . . . there can be no *258 recovery where there has been no actual taking or severance of the claimant’s property. [FN81]

The Michigan Supreme Court in Spiek had no occasion to elaborate on the distinctions between inverse condemnation and partial takings cases, as the above authorities do. The Spiek court did, however, cite five cases from other jurisdictions to buttress its conclusion that:

   The right to just compensation, in the context of an inverse condemnation suit for diminution in value caused by the alleged harmful effects to property abutting a public highway, exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated. [FN82]

Noting that “the overwhelming weight of foreign authority supports this conclusion,” the Spiek court included a footnote which first discussed a California case, then cited four cases from Washington, Illinois, New Mexico, and Texas. [FN83] While the Spiek *259 court’s reference to these cases discloses nothing about them except their endorsement of the “different in kind” rule, a review of the cases reveals that three of them do address the applicability of the rule to partial taking cases.

The California case cited [FN84] and discussed in Spiek was an inverse condemnation case, and as noted above, the California Supreme Court has made it clear that the “different in kind” rule does not apply to partial taking cases. Likewise, Yakima v. Dahlin [FN85] recognizes that, in cases, which do “not involve a physical taking of . . . property,” [FN86] compensation “is not allowed . . . where the injury or damage is one suffered in common with the general public.” [FN87] Last, the New Mexico case [FN88] gives no indication that the “different in kind” rule would apply outside the inverse condemnation context. [FN89]

In Texas v. Schmidt,[FN90] a partial taking case, the Texas Supreme Court, in an alternative ruling, [FN91] held that, pursuant to a Texas statute precluding consideration of “an injury or benefit that the property owner experiences in common with the general community,” [FN92] landowners could not recover severance damages for “diversion of traffic, inconvenience of access, impaired visibility of ground-level buildings, and disruption of construction activities” [FN93] because, “[w]hile one or more of these elements of injury could affect the . . . [remainder] tracts in some special, unique way, different from *260 the effect on the surrounding area, there is no claim here that they do.” [FN94] The court’s rationale, however, has been challenged by many commentators. [FN95]

The Illinois case cited by Spiek also departs from the majority rule by applying the “different in kind” limitation to both inverse condemnation and partial taking cases. In Department of Transportation v. Rasmussen, [FN96] a partial taking case, the Illinois Department of Transportation condemned a “three-year construction easement along the eastern edge of [the] defendants’ property,” [FN97] for the purpose of facilitating the construction of a highway overpass. The defendants sought severance damages to the remainder, both for impairment of access and the proximity of the overpass to the property. The Illinois Court of Appeals held that, while the defendants were entitled to a recovery of damages for their access impairment claim, the mere presence of the overpass near the remainder was not compensable, even though it reduced value to the remainder. [FN98] The court reasoned that “depreciation suffered in common by all lands in the vicinity of an improvement is not compensable.” [FN99] In short, the Illinois Court of Appeals’ decision *261 applied the rule to a partial taking case without the benefit of any analysis. [FN100]

The Spiek court’s offhand reference to Rasmussen in a string-citation buried in a footnote should not be read as an implicit endorsement of the extension of the “different in kind” rule to partial takings cases. First, such an extension would render incoherent the clear and unmistakable position expressed by the court in the body of its opinion that the “different in kind” limitation on just compensation does not apply to cases involving “direct” or “physical” appropriations of property. Second, the location of this footnote in the Spiek opinion plainly demonstrates that its purpose was to buttress a rule that applies “in the context of inverse condemnation cases.” [FN101] That consideration, along with the fact that the cases within the footnote conflict with one another on this point, [FN102] leaves no doubt that the court was more concerned with using this footnote to demonstrate the existence, rather than the scope, of the “different in kind” principle.

III. The Intent of the Framers of the 1963 Michigan Constitution Precludes

Extending the Spiek Rule to Eminent Domain Cases.

In 1961, a Constitutional Convention was convened in Lansing, Michigan, for the purpose of revising the 1908 Constitution then in force. The document that emerged from that convention, subsequently ratified by the voters as the 1963 Constitution, remains (with some individual amendments) the governing constitution of the state. While some of the eminent domain provisions of the 1908 Constitution were changed, the core requirement–that landowners receive “just compensation” for any land taken for public use– remained intact. [FN103] The significance of that convention for purposes *262 of construing the eminent domain clause lies in the delegates’ rejection of proposals to expand the ability of landowners to recover damages in inverse condemnation actions. The debate over those proposals reflects the intent of the delegates not to expand liability for such damages in inverse condemnation cases, while retaining existing rules allowing for full compensation in cases where land was actually taken. The delegates wished to maintain the crucial distinction in eminent domain law between landowners whose property was actually appropriated in eminent domain proceedings and those who asserted injuries in inverse condemnation cases. Thus, while use of the “different in kind” limitation in inverse condemnation cases is perfectly consistent with the intent of the delegates, extending that rule to traditional condemnation cases would not be. [FN104]

The minutes of the 1961 Constitutional Convention reflect a spirited debate over which categories of landowners would be entitled to recover damages from the state in connection with road construction projects. [FN105] In short, one faction of delegates believed that all landowners who suffered such “road construction damages” should be entitled to compensation, without regard to whether they are named as defendants in a traditional condemnation action, and irrespective of whether their property is actually physically invaded by *263 the state. Another faction of delegates believed that such an expansive view of liability would be too costly to the state and, therefore, wanted to limit the recovery of road construction damages to landowners whose property was formally condemned or at least physically invaded by the state. The latter faction prevailed, narrowly voting down a proposed constitutional provision that would have expanded liability for road construction damages to all landowners who could prove that they had sustained such damages. As a result, the state of the law regarding the recovery of road construction damages in eminent domain cases was left essentially unchanged as a result of the 1961 Constitutional Convention.

After the convention, as before, landowners whose property was the subject of a formal condemnation action were entitled to full compensation for their losses (including losses attendant to a diminution in value of the portion of their property not condemned by the state attributable to a road construction project). Landowners in inverse condemnation actions who could not allege a physical invasion of their property, by contrast, would be subject to traditional limitations on their ability to recover just compensation. [FN106]

One could plausibly argue that there is something unfair about allowing landowners whose property is actually taken by the state to receive full compensation for the diminution in the value of their remaining property traceable to a road construction project, while subjecting other landowners (who may be “next-door neighbors”) to severe restrictions on their right to be compensated for similar declines in value of their property. However, the minutes of the Constitutional Convention demonstrate that this is precisely the line that the delegates sought to draw (or to maintain) in approving the 1963 Constitution.

The critical debate at the Constitutional Convention began with a committee proposal to amend the Michigan Constitution in the following fashion:

   Sec. a. IN THE EXERCISE OF THE POWER OF EMINENT DOMAIN, private property shall not be taken OR DAMAGED by the public nor by any corporation for public use OR PURPOSE, without the necessity [therefor] being first determined and just AND EQUITABLE compensation [therefor being first made or secured in such manner as *264 shall be prescribed by law] FOR THE LOSSES AND DAMAGES SUFFERED THEREBY BEING FIRST PAID. [PROPOSED NEW LANGUAGE, and proposed deletions] [FN107]

Delegate Claud R. Erickson explained that the words “or damaged” had been added “to point out the need for parties being compensated for their property being damaged in cases where there is no actual taking of the property or physical contact with the property.” [FN108]

A proponent of the new language, Delegate Paul R. Mahinske, also indicated that the new language had been carefully crafted to ensure that while “people whose property was not being taken” could not intervene in necessity hearings, there would be “absolutely no doubt about their having the right to intervene in the hearings to determine damages and compensation.” [FN109]

Delegate Henrik Stafseth thereupon offered an amendment to the committee proposal intended to, inter alia, delete the words “or damaged” from the proposal. [FN110] Stafseth explained that he was offering the amendment due to his concern that the original committee proposal, by allowing “people who have property that is not taken for the project to come in for claims of damages, you are opening up what you might say is Pandora’s box to a siege of litigation . . . .” [FN111] Stafseth insisted that, “If we open up the possibility of claims outside of the property owners or any interest in that property which we are taking for the purpose, and we have a deluge of claims coming in, . . . it is going to hit the taxpayer right in the pocket.” [FN112]

Similar concerns were voiced by Delegate (and later Judge of the Michigan Court of Appeals) Glenn S. Allen, a proponent of the Stafseth Amendment. Allen noted that, “Under today’s constitution, payment is made for the property taken; under the amendment which we are offering, just compensation will be paid for the property taken; under the committee proposal ‘losses and damages suffered thereby.” ‘ [FN113] Allen further noted that, “we open up, by the committee language, something that is so broad and speculative that we are going to end up with all sorts of intervenors.” [FN114]

*265 Similar reservations were also expressed by Delegate Don Binkowski, who felt that the new language would “open[ ] up the floodgates of compensation” [FN115] and by Delegate Frank O. Staiger, who expressed his concern that the committee proposal would “open [t]he door . . . to the type of nuisance suit where you will have a right of any individual to intervene purely with the idea of getting a settlement out of the condemning authority.” [FN116]

In short, although numerous delegates (whose point of view ultimately prevailed) harbored concerns over expanding governmental liability for road construction damages to persons whose property was not actually taken or physically invaded, those very same delegates made it clear that a different rule would apply to landowners whose property was actually taken. Indeed, Delegate Stafseth, alluding to the general rule in partial taking cases, [FN117] stated that it was his understanding:

   [T]hat a man should be left whole. I mean, this has been clearly established in our supreme court as to a definition of just compensation, that actually the way you evaluate this, you take the property at the time it is taken, how much it is worth that day and then you take and evaluate what the property is worth after you have taken away the part that the public agency shall use and then you compensate him for that amount so you leave the man whole. [FN118]

Stafseth further suggested that his amendment was intended to prevent “a whole series of additional cases” from “coming into a condemnation procedure.” [FN119]

In further remarks, Delegate Allen made it clear that the Stafseth Amendment was intended to preserve the recognized right of a landowner to recover all damages sustained in connection with a taking of property by the state:

   Now, the last major decision is this question of damages. The amendment keeps the damages determined–that is, the amount of damages, on the standards which we have had before. That is, we treat damages in terms of damages to the property that is being taken, but the committee proposal–and I wonder how many of us appreciate this–introduces a new concept into the Michigan law. It not only will pay damages as fair damages, just damages to the *266 property being taken, but it introduces in the constitution–and I underline the words “in the constitution”–the new concept of paying damages to other people’s property, to property that is not being taken. [FN120]

Allen further suggested that even though only full compensation to a landowner whose property is actually taken by the state should be guaranteed by the Michigan Constitution, the Michigan Legislature would remain free to allow other landowners whose property was not actually taken to sue for damages in a separate proceeding, as the legislature has done with the grade-crossing statute:

   I think we would make a great mistake in our constitution to broaden the rule to include losses to property that is not taken and make it a part of the condemnation hearing, rather than having it as a separate suit. We can, by statute, have people bring suits in Michigan whose property is damaged or where there is loss, even though it is not taken; and Michigan has done this in some cases–maybe not enough–by statute, because I have here, as one example in Michigan Statutes Annotated, section 9.1149, a provision that any one whose property is left sort of high and dry on a grade separation crossing–his property is not taken, it is next door–he may come in a separate suit and receive adequate compensation for the loss, and we can do that with these other people who may be suffering a loss. But the committee proposal, you see, puts this all into the condemnation hearing. [FN121]

Yet another delegate, D. Hale Brake, expressed concerns about making condemnation procedures “unnecessarily slow or unnecessarily expensive,” [FN122] because “the public and the taxpayers are going to be the ones who suffer. . . .” [FN123] Brake stated that he was “nervous about this matter of damages by people whose property is not taken.” [FN124]

Delegate Carl D. Mosier expressed similar sentiments but made it clear that he, like every other delegate who spoke on the subject, wanted to preserve the right of a landowner whose property is taken by the state to be fully compensated for his losses:

   As Mr. Brake has said, this constitutes an invitation to all parties who live within gunshot of the property that is taken *267 to file intervening proceedings and they have the right to be heard in the matter of determining damages. That opens the door to something that I think the public is going to be called upon to pay, that is coming out of the pockets of the taxpayers. It seems to me we should be very cautious before we open that door to every Tom, Dick and Harry who might claim damages by reason of lack of sight, lack of air, lack of, perhaps, noise and so on. There are any number of things that might be conjured up as a claim for damages.

Now again, we are interested, and I know that this convention is interested, in seeing that the man whose land is taken is well compensated for the land that he is surrendering. No one would disparage the right of the man who owns the land to be justly compensated for his losses, but this matter of intervening is a 2 edged sword. [FN125]

The Stafseth Amendment thereupon passed by a vote of 61 to 56. [FN126] The foregoing minutes indicate that the majority felt that landowners whose property is condemned should continue to be fully compensated for all of their losses, while the minority felt that even landowners whose property is not taken by the state should receive such compensation.

The close vote on the Stafseth Amendment prompted proponents of the original committee proposal to move for reconsideration of the action taken on that amendment. In his further comments, Delegate Stafseth made it clear that it was never his intention to alter the long-standing rule that a landowner whose property is actually taken by the state is entitled to full compensation for all of his damages:

   With the experience in this case, I can say without reservation that the interpretation of just compensation, as is provided in our amendment which was passed, certainly has been interpreted by the courts in Michigan to leave a person whole. And I repeat that the interpretation of the supreme court is that when you take a man’s property, you must leave him whole. You take the man before you take the property, you take out the parcel, you figure out how much money it takes to leave him whole. [FN127]

Delegate Allen also reiterated his insistence that his objection to the committee proposal was based on his belief that it went far *268 beyond the current state of the law (preserved by the Stafseth Amendment), which guaranteed full compensation for landowners whose property was actually taken:

   I think–and I hadn’t mentioned it tonight–the committee proposal allows what we call consequential damages. In other words, it moves the field of payment considerably more than it is today. Today we pay for the property taken. The committee proposal would pay for property that wasn’t taken but might be adversely affected; property one block away, 2 blocks away, 10 blocks away or a mile away, and then it allows these people in the hearing or the taking of the property to all come in and file claims. [FN128]

The motion for reconsideration was defeated by a vote of 66 to 50, leaving the Stafseth Amendment in place. [FN129]

Delegate Donald M. Havermehl thereupon offered an amendment intended to resuscitate a few portions of the committee proposal that had been superseded by the Stafseth Amendment. More specifically, Delegate Havermehl proposed, inter alia, the addition of language making it clear that private property shall not be taken “or directly damaged” without the payment of just compensation. [FN130]

The Havermehl Amendment attracted the same kind of criticism that had culminated in the passage of the Stafseth Amendment. However, once again, in criticizing the proposed additional language, Delegate Mosier made it clear that he continued to sympathize with “the man whose land is taken” [FN131] and suggested that allowing landowners whose land is not taken to intervene in a condemnation proceeding would reduce the compensation that would otherwise be payable to the landowner whose property is the subject of the condemnation action. [FN132]

The Havermehl Amendment was voted down by the delegates. [FN133] Later, the delegates voted overwhelmingly to pass an amendment to supersede both the original committee proposal and the Stafseth Amendment with these words: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.” [FN134] An analysis of the votes *269 cast in favor of the amendment reveals that its passage was attributable to the votes of a coalition of delegates who felt that landowners should continue to be fully compensated for their losses when their property was taken by the state, as well as a group of delegates who felt that even landowners whose property was not taken by the state should nevertheless be entitled to recover damages.

Later on in the convention, yet another amendment was introduced seeking to add language guaranteeing compensation “for the taking and resultant direct damage . . .” [FN135] This, again, engendered protests from delegates who were concerned that an expansion of liability to landowners whose land was not actually taken by the state was intended. Delegate Robert S. Tubbs stated that he was “afraid of the language ‘resultant direct damage,” ‘ [FN136] observing that with reference to road construction damages, “[u]nder the present interpretation, we can’t get paid for it, though if they do take part of our property, we will get paid for it.” [FN137] Once again, the proposed amendment was voted down. [FN138]

A later amendment, seeking to make it clear that condemnation proceedings were to be conducted under court supervision, was adopted, leaving the following language as the final expression of the will of the Constitutional Convention:

   Sec. 2. Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. The amount of compensation shall be determined in proceedings in a court of record. [FN139]

In summary, the minutes of the Constitutional Convention make it clear that although the delegates held widely varying points of view on many matters relating to the Just Compensation Clause of the Michigan Constitution, one thing upon which they all agreed is that the Michigan Constitution should continue to guarantee full compensation to landowners whose property is taken by the state for all losses sustained by such landowners. As such, any extension of the Spiek rule to cases involving actual appropriations of land would be inconsistent with article X, section 2 of the Michigan Constitution (the Just Compensation Clause).

Where convention debate is so extensive on this point, it may be accorded persuasive, if not controlling, weight when the judiciary is *270 called upon to construe the constitutional provision. [FN140] The reports of convention committees are also relevant. [FN141] However, even if the foregoing excerpts from the debates were not as demonstrative of the delegates’ intent, other principles of constitutional interpretation would compel the same conclusion.

Underthe rule of “common understanding,” any argument requiring constitutional interpretation must focus on what those who ratified the constitution, the voters, understood from the language. [FN142] Where the actual language of the constitution, however much tinkered with and fretted over by the convention delegates who drafted it, was in the final analysis little changed from prior versions in any substantive way, the people must be deemed to have intended to retain existing principles. [FN143]

For present purposes, therefore, since the language in the 1963 Constitution tracks that of the 1908 Constitution, the people must have intended to retain the rule that victims of partial takings must be fully compensated for ancillary diminutions in the value of their remaining holdings. This doctrine is well-entrenched in our constitutional jurisprudence, notwithstanding the principle that landowners whose property is not actually “taken” by the state must satisfy a very high threshold of proof in order to obtain compensation, a threshold that may be insurmountable with respect to the general adverse effects of being situated near a railroad, highway, airport, or other public improvement. [FN144] However, once that threshold is met and a “taking” is established, the inverse condemnee and the partial takings condemnee are treated identically, in the sense that both are entitled to just compensation. But what is ancillary to a partial taking, and therefore compensable, whether standing alone or otherwise, is simply not necessarily a “taking” sufficient to trigger a right to compensation under an inverse condemnation theory, nor does it become a “taking” merely by virtue of being conjoined with an independent inverse condemnation claim. [FN145]

*271 In both contexts, the issue of whether any “taking” has occurred is determined separate and apart from such ancillary invasions, but in the partial takings context, such ancillary takings are compensable. [FN146] Ancillary takings are not compensable in the inverse condemnation situation because such subsidiary invasions do not constitute any part of the governmental action which may be held to rise to the level of a “taking.” [FN147]

IV. Conclusion

The Michigan Supreme Court’s recent decision in Spiek has made it clear that in inverse condemnation cases, a landowner must allege and prove that he or she has suffered damages different in kind from those suffered by other landowners generally in order to recover just compensation. The court recognized, however, that the “different in kind” rule would not be applicable to cases involving “direct” or “physical” invasions of land. As such, the “different in kind” rule does not limit the ability of landowners to recover severance damages in traditional eminent domain cases involving actual takings of property. That limitation on the scope of the Spiek rule is exceedingly important as a matter of constitutional law and policy. Any attempt to extend the rule to eminent domain cases would be inconsistent with the language of the Spiek decision and the prevailing rule in other jurisdictions. In addition, it would contravene the intent of the framers of the 1963 Constitution, as revealed in the debates of the delegates.

[FNa1]. Partner, Ackerman & Ackerman, P.C., Troy, Michigan.

[FNaa1]. Of Counsel, Ackerman & Ackerman, P.C., Troy, Michigan. The authors wish to gratefully acknowledge the insightful editorial contributions of Allan S. Falk, Esq., who assisted them in refining the analyses reflected in this article.

[FN1]. The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” The Takings Clause has been held applicable to the states by reason of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which was ratified in 1868. See Dolan v. City of Tigard, 512 U.S. 374, 383- 84 (1994). Over a hundred years ago, the United States Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, a state could exercise its power of eminent domain only for a public use, and the owner of property “taken” had to be compensated for his loss. Chicago, B. & Q.R.R. Co. v. Chicago, 166 U.S. 226 (1897).

[FN2]. The Michigan Constitution has contained a provision requiring payment of just compensation since the Michigan Constitution was first adopted in 1835. The Michigan Constitution has undergone three general revisions since then in 1850, 1908, and 1963. Each of the four versions of the state constitution contained a Just Compensation Clause. While the clause has undergone some changes since 1835, each version has provided for the payment of “just compensation” when “property” is “taken.” See Mich. Const. of 1835, art. I, § 19; Mich. Const. of 1850, art. 18 § 2; Mich. Const. of 1908, art. XIII, § 1; Mich. Const. 1963, art. 10, § 2. The Just Compensation Clause of the Michigan Constitution of 1963 provides as follows: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.” While none of the changes in language that the Just Compensation Clause has undergone since 1835 have any significance to the issues discussed in this article, the debate in the Constitutional Convention of 1961 which resulted in the rejection of certain proposed language does have significance to these issues, as is more fully discussed below. See infra text accompanying notes 84 to 120.

[FN3]. This diminution in value is often referred to as severance damages or remainder damages, and these terms will be used interchangeably throughout this article.

[FN4]. See infra notes 67-100 and accompanying text.

[FN5]. 572 N.W.2d 201 (Mich. 1998).

[FN6]. See infra text accompanying notes 60-65.

[FN7]. See Petition of Huron-Clinton Metropolitan Authority, 10 N.W.2d 920 (Mich. 1943); Michigan Gas Storage Co. v. Gregory, 67 N.W.2d 219 (Mich. 1955).

[FN8]. See Consumers Power Co. v. Allegan State Bank, 202 N.W.2d 295, 297 (Mich. 1972).

[FN9]. Mich. Comp. Laws Ann. § 600.801 (West 1996).

[FN10]. See Consumers Power, 202 N.W.2d at 296. See also Mich. Comp. Laws Ann. § 600.801 (West 1996).

[FN11]. Consumers Power, 202 N.W.2d at 298. Notwithstanding the underlying constitutional basis for any recovery of just compensation by beneficially interested parties, the legislature generally has the power to specify periods of limitation and repose for even constitutional claims. Taxpayers Allied for Constitutional Taxation v. Wayne Co., 537 N.W.2d 596, 599-600 (Mich. 1995). The legislature need only allow a “reasonable time,” and no restriction not tantamount to a complete denial of access to the courts will be found to deny due process. Carver v. McKernan, 211 N.W.2d 24, 26 (Mich. 1973). Hence, fairly short limitations periods have been consistently upheld. Covell v. Spengler, 366 N.W.2d 76, 79 (Mich. Ct. App. 1985) (ninety days). Because, generally, the occurrence of a “taking,” particularly outside the inverse condemnation context, will be immediately apparent, the fact that the full extent of damages may not be determinable for some time does not necessarily justify any exception to the limitations period. Stephens v. Dixon, 536 N.W.2d 755, 756 (Mich. 1995). However, it might well be unconstitutional for the legislature to insist that landowners must give condemning authorities notice of all of their claims before the landowners themselves have notice of such claims. See Mich. Comp. Laws Ann. § 213.55(3) (West 1996) (purporting to require landowners to notify condemning authorities of claims for additional items of compensation within ninety days of the submission of a good-faith offer, regardless of whether the landowners are aware of such claims prior to the expiration of this deadline).

[FN12]. See, e.g., United States v. Miller, 317 U.S. 369, 373 (1943) ( “The owner is to be put in as good [a] position pecuniarily as he would have occupied if his property had not been taken”). This rule has been described by the Supreme Court as the “guiding principle of just compensation.” United States v. Virginia Electric & Power Co ., 365 U.S. 624, 633 (1961).

[FN13]. 220 N.W. 881 (Mich. 1928).

[FN14]. Id. at 886.

[FN15]. G. R. & I. Ry. Co. v. Heisel, 11 N.W. 212 (Mich. 1882).

[FN16]. Fitzsimmons & Galvin, Inc., 220 N.W. at 886.

[FN17]. 226 N.W. 690 (Mich. 1929).

[FN18]. Id. at 692.

[FN19]. 120 N.W.2d 833 (Mich. 1963).

[FN20]. SJI.2d 90.12, “Partial Takings,” provides, in pertinent part, that the “measure of compensation is the difference between (1) the market value of the entire parcel before the taking and (2) the market value of what is left of the parcel after the taking.” The Note on Use to the jury instruction offers an alternative to the general rule for determining compensation in partial takings cases, which may apply in certain cases. Under the alternative rule, the “value of the part taken plus damages to the remainder may be appropriate in certain cases in lieu of this instruction.” See Note to SJI.2d 90.12 (citing to State Highway Commissioner v. Flanders, 147 N.W.2d 441 (Mich. Ct. App. 1967); State Highway Commissioner v. Englebrecht, 140 N.W.2d 781 (Mich. Ct. App. 1966)).

[FN21]. See 4A Nichols on Eminent Domain § 14.01[a]. Under the variant of this rule, which often yields an identical computation, the owner is compensated for the value of the part taken, plus damages to the part not taken. See id.

[FN22]. 167 U.S. 548 (1896).

[FN23]. Id. at 574.

[FN24]. Id. The United States Supreme Court’s formulation of the rule differs from the Michigan rule insofar as any benefits to the remainder that result from the taking should be used to offset any diminution in value. The Michigan rule does not require such an offset, unless specifically provided for by statute. See Mackie v. Sabo, 144 N.W.2d 798, 800-801 (Mich. Ct. App. 1966) (citing State Hwy. Comm’r v. Breisacher, 204 N.W. 112 (Mich. 1925); Plantenga v. Grand Rapids Terminal R. Co., 157 N.W. 425 (Mich. 1916); and Detroit, B C & W R Co. v. First Nat’l Bank of Yale, 163 N.W. 97 (Mich. 1917)).

[FN25]. See Michigan State Highway Commission v. Minckler, 233 N.W.2d 527, 529 (Mich. Ct. App. 1975) (concluding that “fair market value is found by considering and evaluating all the factors and possibilities that would have affected the price which a willing buyer would have offered to a willing seller for the land under the circumstances” (citations omitted)).

[FN26]. SJI.2d 90.12.

[FN27]. 492 N.W.2d 517 (Mich. Ct. App. 1992).

[FN28]. With the exception of the alternative cost to cure approach, Michigan applies the “before and after rule” in calculating severance damages; thus, a separate assessment by the jury of any particular element of damages is unnecessary. Id. at 519-20. As the Mississippi Supreme Court stated in Mississippi State Highway Commission v. Hall, 174 So.2d 488, 492 (Miss. 1965):

The “before and after rule” swallows and absorbs all of the damages of every kind and character, and while it is proper to put on evidence of special items so that the jury can properly determine the “after” value, it is not proper to comment on any particular aspect of the damages in the instructions.

[FN29]. 132 N.W.2d 113 (Mich. 1965).

[FN30]. Id. at 114.

[FN31]. Id.

[FN32]. See id.

[FN33]. 339 P.2d 301 (Kan. 1959).

[FN34]. Watt, 132 N.W.2d at 311.

[FN35]. Id. at 118-19.

[FN36]. See id. at 119.

[FN37]. Mich. Const. 1963, art. 7, § 16 provides, in relevant part:

The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges, culverts and airports by the state and by the counties and townships thereof; and may authorize counties to take charge and control of any highway within their limits for such purposes. The legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports…”

[FN38]. Petition of Miller, 171 N.W.2d 473 (Mich. Ct. App. 1969); Petition of Wernicke, 49 N.W.2d 76 (Mich. 1951); the limitation on this power is that the legislature may not vacate or alter any street, road, alley or public place under the jurisdiction of any county, township, city or village. Mich. Const. 1963, art. 7, § 31.

[FN39]. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Commencing in the 1950’s, the federal government built the interstate highway system that included Route 66. However, Route 66 soon fell into desuetude as a major thoroughfare for interstate travel. Even the naming of a popular television show after Route 66 could not save the businesses along that fabled highway. If the government had had to compensate every business owner along old federal highways for the diminished value of business property attributable to the construction of the interstate highway system, the prohibitive additional tax burden might have derailed the entire project.

[FN40]. Tomaszewski v. Palmer Bee Co., 194 N.W. 571 (Mich. 1923) (mere inconvenience to property owner resulting from vacation of a street or alley by virtue of having to use a different route is not a “taking” of property); Grigg Hanna Lumber & Box Co v. Van Wagoner, 293 N.W. 675 (1940) (impairment of owner’s right of access to his property by virtue of a change in grade of an adjoining street is not a “property interest” within the constitutional prohibition against taking private property for public use without just compensation; Buhl v. Union Depot Co., 57 N.W. 829, 831 (Mich. 1894).

[FN41]. Houghs v. State Hwy Comm’r, 137 N.W.2d 289, 290-91 (Mich. Ct. App. 1965).

[FN42]. Horton v. Williams, 58 N.W. 369 (Mich. 1894) (vacating alley in order to put it to another public use required compensation of abutting landowners); City of Pontiac v. Carter, 32 Mich. 164 (Mich. 1875) (injury to property caused by changing the grade of abutting street is properly compensable, but payment is assumed to have been made as part of just compensation required upon the original acquisition of highway rights by condemnation, in contemplation of such potential future changes).

[FN43]. Smith v. Western Wayne Co. Conservation Ass’n, 158 N.W.2d 463 (Mich. 1968); 26 A.L.R.3d 647 (1968).

[FN44]. See Annotation, Measure and Elements of Damage for Limitation of Access Caused by Conversion of Conventional Road Into Limited-Access Highway, 42 A.L.R.3d 13, § § 5, 6 (1972). While this annotation includes a large number of both inverse condemnation and eminent domain cases, its usefulness is reduced somewhat by its frequent failure to indicate whether a particular case arose in an eminent domain or inverse condemnation context and also by its corresponding failure to recognize the distinct rules that often apply to the two kinds of cases.

[FN45]. 140 N.W.2d 500 (Mich. 1966).

[FN46]. Id. at 503. See also, Houghs, 137 N.W.2d at 290 (stating that, “[D]amages attributable to diversion of traffic are not compensable…”).

[FN47]. See SJI.2d 90.12 (listing “reduced access” as one of factors to be taken into account in valuing the remainder); Mackie v. Walma, 120 N.W.2d 833 (Mich. 1963) (effect of loss of access to 210 feet of 1,320-foot frontage must be considered with respect to remainder parcel).

[FN48]. Access may be impaired by, inter alia, conversion of ordinary roads into limited access highways, the closure or vacation of roads, the raising or lowering of grades on abutting streets, the erection of barriers on roads, the conversion of a two-way street into a one-way street, and so forth. If these reductions in access are accompanied by physical takings of property, the negative effect of such reduced access on the value of the remainder should be compensable, in order to effectuate the proper application of the before-and- after rule and in order to assure that landowners are fully compensated for governmental takings.

[FN49]. E. McKirdy, Compensation for Impairment of Rights of Access, § 13.04[2] at 13-12, in Institute on Planning, Zoning, and Eminent Domain (1988 Southwestern Legal Foundation). The compensability of a loss of access was also discussed in Watt, albeit in dicta. In addition to making a diversion of traffic argument, the landowners in Watt argued that because the State Highway Commission had acquired a right to create a cul-de-sac on the highway on the west side of the landowner’s property, that, too, should be compensable. See Watt, 132 N.W.2d at 117, 120. The court in Watt held that because any future closure of the road would be part of a “separate acquisition[],” it could not be compensable in the condemnation proceeding itself. See id. at 120. In dicta, the court went on to indicate that such a loss would be compensable only if it entailed an “entire or material cutting- off of the access, of an abutting owner, to the general system of highways.” Watt, 132 N.W.2d at 120. Given the court’s conclusion that the establishment of a cul-de-sac was not a part of the taking, the landowners in Watt could only seek damages for such a loss of access in an inverse condemnation action. The attempt in the Watt dicta to limit access damages to those that are “material” is, therefore, best understood as having no applicability to the partial takings situation. While some jurisdictions appear to limit recovery of certain kinds of access damages in this way, Michigan is not one of those states. See Watt, 132 N.W.2d at 114. See also Powers v. Scobie, 60 So.2d 738 (Fla. 1952) (a landowner who buys a house in a subdivision by reference to a plat has an easement for access through the platted streets).

[FN50]. Spiek v. Michigan Dep’t of Transp., 572 N.W.2d 201, 202, n.3 (Mich. 1998).

[FN51]. Id. (quoting Peterman v. Dep’t of Natural Resources, 521 N.W.2d 499 (Mich. 1994)).

[FN52]. Id.

[FN53]. 572 N.W.2d 201 (Mich. 1998).

[FN54]. See Id. at 202.

[FN55]. Id. at 203.

[FN56]. Id. at 210 (emphasis added).

[FN57]. Id. at 209.

[FN58]. Id. at 209.

[FN59]. 57 N.W. 829 (Mich. 1894).

[FN60]. Spiek, 572 N.W.2d at 208.

[FN61]. Spiek, 572 N.W.2d at 205 (citing Richards v. Washington Terminal Co ., 233 U.S. 546, 554-558 (1914)) (emphasis added). Of course, this principle is limited by the state and federal constitutions; where regulation or other government action deprives the owner of all economically viable use of property, a “taking” has occurred for which just compensation must be paid, even if the “taking” was only temporary. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas v. South Carolina Coastal Council, 505 U.S. 813 (1992); First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987); Volkema v. DNR, 542 N.W.2d 282, 283 (Mich. Ct. App. 1995); Board of Educ., City of Detroit v. Clarke, 280 N.W.2d 574, 576 (Mich. Ct. App. 1979); City of Muskegon v. DeVries, 229 N.W.2d 479, 482-83 (Mich. Ct. App. 1975).

[FN62]. 233 U.S. 546 (1914).

[FN63]. Spiek, 572 N.W.2d at 206 (emphasis added).

[FN64]. 328 U.S. 256 (1946).

[FN65]. Spiek, 572 N.W.2d at 207. Causby addressed flights over a landowner’s property at such a low altitude as to amount to a physical invasion of the property.

[FN66]. Id.

[FN67]. The courts have also recognized that government regulation depriving a landowner of any beneficial use of its property can also amount to a taking for which compensation must be paid. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[FN68]. 388 S.W.2d 905 (Ark. 1965). The Constitution of Arkansas, unlike the Michigan Constitution, provides for compensation to be paid when property is “taken” or “damaged.” Ark. Const. art II, § 23. The Michigan Constitution merely states that compensation shall be paid where property is “taken.” Mich. Const. art. X, § 2.

[FN69]. Kesner, 388 S.W.2d at 909.

[FN70]. 93 N.W.2d 572 (S.D. 1958).

[FN71]. Id. at 577-78. See also State v. Bowles, 472 P.2d 896, 901 (Okla. 1970) (holding that rule for recovering compensation in inverse condemnation case involving no “actual taking of property” were not “persuasive” in the context of a formal condemnation case involving a partial taking). The South Dakota Constitution also provides for compensation where property is “taken” or “damaged.” S.D. Const. art. VI, § 13.

[FN72]. 282 A.2d 71, 76 (N.J. Super. Ct. Law Div. 1971).

[FN73]. Id. at 76. The New Jersey Constitution provides for compensation only where property is “taken.” N.J. Const. art. I, § 20; art. IV, § 6. This provision suggests that the limitation of the general damage/special damage distinction to inverse condemnation cases involving no physical invasion of property is not dependent on whether a particular state constitution requires compensation when property is “damaged.”

[FN74]. 728 P.2d 696 (Col. 1986).

[FN75]. Id. at 700.

[FN76]. Id. The Colorado Supreme Court also stated that “this is the better reasoned approach in terms of fairness and economic reality.” Id. at 701. The court used this hypothetical to illustrate the point:

Consider the…landowner who receives a bid from a private party to buy a portion of the landowner’s property for a particular use. The landowner rationally will fix his selling price at an amount that will compensate the landowner not only for the portion sold, but also for any diminution in value of the remainder of his land that results from the use of the property sold, whether or not adjoining lands will suffer diminution of value as well. The buyer must pay that price to acquire the desired portion. A condemning authority should be required to compensate in like manner.

Id. The Colorado Constitution also requires compensation when property is “damaged” or “taken.” Colo. Const. art. II, § 15.

[FN77]. State v. Wells Fargo Bank of Arizona, 908 P.2d 103, 106 (Ariz. Ct. App. 1999) (citing Miller v. J.R. Norton Co., 760 P.2d 1099, 1101 (Ariz. Ct. App. 1988)).

[FN78]. Id. at 107. In arguing for a contrary rule, the state argued that, where two landowners suffer the same damages from a condemnation, and where one (Homeowner A) has some land appropriated and the other (Homeowner B) has none appropriated, awarding severance damages to the one but not the other amounts to “unequal treatment.” The state insisted that “equity would be better served if the State did not compensate” any of the landowners. The court disposed of that argument as follows:

In the hypothetical, the State took property from Homeowner A, and it is constitutionally required to justly compensate for the taking. The State did not take land from Homeowner B, and it need not compensate Homeowner B….The State would have us penalize Homeowner A because Homeowner B was not fortunate enough to have land taken.

Id. at 106. The Arizona Constitution also provides for compensation when property is “taken” or “damaged.” Ariz. Const. art. II, § 17.

[FN79]. 941 P.2d 809 (Cal. 1997).

[FN80]. Id. at 821.

[FN81]. People v. Symons, 357 P.2d 451, 454 (Cal. 1960). The California Constitution also provides for compensation when property is “taken or damaged.” Cal. Const. art. I, § 19.

[FN82]. Spiek, 572 N.W.2d at 209 (emphasis added).

[FN83]. Id. at 209 n.14. The footnote reads, in its entirety, as follows:

In Friends of H Street v Sacramento, 20 Cal. App. 4th 152, 24 Cal. Rptr.2d 607 (1993), the California Court of Appeals addressed a factual situation similar to the one presented here. The plaintiffs alleged, inter alia, excessive traffic, excessive traffic speeds, excessive noise, noxious fumes, impairment of residential use, and safety hazards. The court denied relief, stating, “Plaintiffs fail to allege they suffered unique, special or peculiar damages, that is, ‘not such as is common to all property in the neighborhood’…. Id. at 167. The court explained further:

“Modern transportation requirements necessitate continual improvements of streets and relocation of traffic. The property owner has no constitutional right to compensation simply because the streets upon which the property abuts are improved so as to affect the traffic flow on such streets. If loss of business or of value of the property results, that is noncompensable. It is simply a risk the property owner assumes when he lives in modern society under modern traffic conditions.” [ Id.]

See also Dep’t of Transportation v. Rasmussen, 108 Ill.App.3d 615, 621-22, 64 Ill.Dec. 119, 439 N.E.2d 48 (1982) (a greater degree is insufficient; peculiar and direct physical disturbance is required; depreciation suffered in common by all lands in the vicinity of an improvement is not compensable); Public Service Co. of New Mexico v. Catron, 98 N.M. 134, 136, 646 P.2d 561 (1982) (damages must be different in kind, not merely degree); State v. Schmidt, 867 S.W.2d 769, 781 (Tex., 1993)(inconveniences shared by an entire area through which a highway runs is not compensable absent peculiar harm; a difference in degree is insufficient), cert. den. 512 U.S. 1236, 114 S.Ct. 2741, 129 L.Ed.2d 861 (1994); Yakima v. Dahlin, 5 Wash. App. 129, 131-32, 485 P.2d 628 (1971) (allowing recovery where an overpass created an “echo chamber” that distinguished the plaintiff’s “special circumstances” from an injury common to all property in the neighborhood).”

[FN84]. Friends of H Street v. Sacramento, 24 Cal. Rptr.2d 607 (Cal. App. 1993).

[FN85]. 485 P.2d 628 (Wash. App. 1971).

[FN86]. Dahlin, 485 P.2d at 630.

[FN87]. Id. The Washington Supreme Court has endorsed the rule set forth by the California Supreme Court in Symons and quoted above in the text. See Pierce v. Northeast Lake Washington Sewer and Water District, 870 P.2d 305, 311 n.45 (Wash. 1994) .

[FN88]. Public Serv. Co. of New Mexico v. Catron, 646 P.2d 561 (N.M. 1982).

[FN89]. See Id.

[FN90]. 867 S.W.2d 769 (Tex. 1993).

[FN91]. The court’s principal holding was that the claimed damages to the remainder parcels did not directly result from the taking of the property in question but, rather, “from the State’s new use of its existing right-of-way and of property taken from other landowners to widen it.” Schmidt, 867 S.W.2d at 777. The State of Texas had urged that the supreme court adopt a categorical rule that inverse condemnation and partial takings case “be governed by identical rules,” but the court was unprepared to do that. Id. at 777.

[FN92]. Id. at 779 (quoting from section 21.042 (d) of Texas Property Code).

[FN93]. Schmidt, 867 S.W.2d at 781.

[FN94]. Id.

[FN95]. More particularly, the Texas Supreme Court’s holding in Schmidt has been subjected to severe criticism by various commentators, insofar as it precludes compensation for factors that have a genuine effect on the market value of the remainder in a partial taking case. See, e.g., Note, The Road to Nowhere: The Texas Supreme Court Departs from the Majority Rule by Limiting Highway Condemnation Damages in State v. Schmidt, 14 Rev. Litig. 519, 520 (1995) (“In the recent case of State v. Schmidt, the Texas Supreme Court departed from decades of settled jurisprudence regarding the measure of damages awarded when the State takes a portion of a tract of property for use in road or highway development.”); G. Kanner, 38 Just Compensation 12 (“Cases like Schmidt graphically illustrate that the courts are sometimes unrealistic or perhaps even not intellectually honest when they intone the ‘market value’ standard”); H. Dixon Montague, Market Value and All that Jazz: The Proof of the Pudding Is in the Eating, Inst. on Plan. Zoning & Eminent Domain § 16.04 [1] at 16-16 (1998) (suggesting that the Court in Schmidt had “redefined market value to exclude vital elements of value that are inextricably interwoven in the market value concept itself, making it virtuallyimpossible to assess honestly the market value of property in a condemnation case in Texas”); David M. Lewis and Mark O. Sikes, Life After Schmidt, Inst. on Plann. Zoning & Eminent Domain § § 15.09-15.011at 15-13 to 15-15 (1996) (suggesting, from author’s standpoint as professional appraiser, that decision in Schmidt had created severe practical difficulties for appraisers in determining market value in partial taking cases).

[FN96]. 439 N.E.2d 48 (Ill. App. 1982).

[FN97]. Rasmussen, 439 N.E.2d at 51.

[FN98]. Id. at 55-57.

[FN99]. Id. at 56 (citing Dep’t Public Works & Bldg. v. Bloomer, 28 Ill.2d 267, 273, 191 N.E.2d 245 (1963)).

[FN100]. Moreover, the case appears readily distinguishable. The easement was only temporary, not permanent. Moreover, the language used in the case law suggests that permanence is a crucial factor. Indeed, the Spiek court suggested that the permanence of a taking is a prerequisite to the recovery of damages on an inverse condemnation theory. See also Poirier v. Grand Blanc Township, 423 N.W.2d 351, 354-55 (Mich. Ct. App. 1988), after remand, 481 N.W.2d 762 (Mich. Ct. App. 1992). A temporary invasion is analytically merely a trespass, and this form of action has its own elements of recoverable damage.

[FN101]. Spiek, 572 N.W.2d at 209 (emphasis added).

[FN102]. As discussed above, the footnote in Spiek also included a citation to an Illinois case that limited the rule to cases not involving physical takings and a citation to California law, which has specifically declined to extend the rule to partial taking cases.

[FN103]. The eminent domain provisions of the preceding constitution, the Constitution of 1908, were set forth in five sections of article XIII. The core protection was contained in section 1, which provided, “Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.” The 1963 Constitution dropped sections 2 through 5, and replaced section 1 with the following provision, which was set forth in article 10, section 2: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.”

[FN104]. As a general matter, the Michigan Supreme Court turns to the committee debates as an aid to constitutional interpretation “in the absence of guidance in the constitutional language as well as in the ‘Address to the People,’ or when [the Court] find[s] in the debates a recurring thread of explanation binding together the whole of a constitutional concept.” Regents of the University of Michigan v. State, 235 N.W.2d 1, 4 (Mich. 1975); see also Burdick v. Hare, 130 N.W.2d 380, 382 (Mich. 1964) (“Courts on numerous occasions have gone to the Constitutional Convention debates and addresses to the people to decide the meaning of the Constitution”); McKeighan v. Grass Lake Township Supervisor, 593 N.W.2d 605, 611 (Mich. Ct. App. 1999) (“The record of the floor debates occurring at the Constitutional Convention of 1961 are relevant and useful” in determining “the common understanding of the constitution held by its ratifiers….”) Where the text is indeterminate, but the intent of the delegates is clear, it would seem that the intent should be deemed controlling in constitutional interpretation.

[FN105]. See Minutes of 1961 Constitutional Convention (hereinafter cited as “Minutes, p. __”).

[FN106]. The principal restriction was, in fact, the “different in kind” limitation described many years after the Constitutional Convention in Spiek. While the Spiek decision post-dated the adoption of the 1963 Constitution by thirty-five years, the court in Spiek went out of its way to explain that it was not creating a new limitation for those cases, but instead was reaffirming a limitation that had existed long before 1963. See supra notes 58-60 and accompanying text.

[FN107]. Minutes, p.2580.

[FN108]. Id. at 2581.

[FN109]. Id. at 2582.

[FN110]. Id.

[FN111]. Id. at 2583.

[FN112]. Id.

[FN113]. Minutes, p.2583.

[FN114]. Id.

[FN115]. Id. at 2585.

[FN116]. Id.

[FN117]. See supra note 12 and accompanying text.

[FN118]. Minutes, p.2592.

[FN119]. Id. at 2593.

[FN120]. Id. at 2594.

[FN121]. Id. at 2595.

[FN122]. Id. at 2600.

[FN123]. Id.

[FN124]. Minutes, p.2600.

[FN125]. Id.

[FN126]. Id. at 2602.

[FN127]. Id. at 2831.

[FN128]. Id. at 2834.

[FN129]. Id. at 2839.

[FN130]. Minutes, p.2844 (emphasis added).

[FN131]. Id.

[FN132]. Id.

[FN133]. Id. at 2845.

[FN134]. Id. at 2846.

[FN135]. Id. at 3035.

[FN136]. Minutes at 3038.

[FN137]. Id. at 3039.

[FN138]. Id. at 3039.

[FN139]. Mich. Const. 1963, art. X, § 2.

[FN140]. Doe v. Dep’t of Social Servs.; Beech Grove Inv. Co. v. Civil Rights Comm’n, 157 N.W.2d 213 (Mich. 1968).

[FN141]. People v. Nash, 341 N.W.2d 439, 445 (Mich. 1983).

[FN142]. Durant v. State, 566 N.W.2d 272, 284-87 (Mich. 1997), clarified, 575 N.W.2d 546 (Mich. 1998).

[FN143]. Richardson v. Secretary of State, 160 N.W.2d 883, 886 (Mich. 1968); Knapp v. Palmer, 37 N.W.2d 679, 680 (Mich. 1949).

[FN144]. Spiek, 572 N.W.2d at 207-08 (citing Richards v. Washington Terminal Co., 233 U.S. 546, 552-554 (1914)).

[FN145]. Spiek, 572 N.W.2d at 206-07.

[FN146]. Petition of Ziegler, 97 N.W.2d 748, 753-54 (Mich. 1959) (in connection with a partial taking, business owner could recover costs of implementing plan designed to hold business interruptions to a minimum, including relocation costs, but not lost profit). Petition of Mackie, 147 N.W.2d 441, 445-46 (Mich. Ct. App. 1967) (citing In re Widening of Fulton St., 248 Mich. 13, 23; 64 A.L.R. 1507 (1929), where it was held that if the portion of property remaining after a partial taking is of great value, and there can be advantageous reconfiguration or rearrangement, then the cost of altering the remainder and all consequential damages because of such alterations, plus the value of the part taken, furnishes the rule for measuring just compensation; otherwise, the value of the entire property must be paid if the remainder is worthless).

[FN147]. Alternatively, given the facts in Spiek, it could be said that the right to impose on the remainder, with noise, vibration, and other inconveniences associated with the abutting highway service drive, was a right acquired when the land on which the road was constructed was first obtained by the government. If that land was acquired by condemnation, then the condemnee was entitled to payment for such future invasions as ancillary damages. On the other hand, if the government always owned the land, or acquired it by purchase without compulsion, it could use the land for a highway, since a highway is not a nuisance. Spiek, 572 N.W.2d at 207-08 (citing Richards v. Washington Terminal Co., 233 U.S. 546, 552-54 (1914)). Thus, neighboring landowners are not entitled to recover damages because such land is devoted to highway purposes.

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