The crucial question here is whether the circuit judge erred in refusing to allow the land-owners (appellants) to introduce testimony before the jury in condemnation proceedings, to show that *Page 219 the city was already the owner of other lands in the same locality equally suitable for the public purpose intended (in this case, for recreational purposes, to establish a public playground).
In this case, the question of necessity for taking the lands sought to be condemned is solely a question of fact to be submitted to and determined by the jury. The Constitution (article 13, § 2 [1908]) so provides, and this Court has frequently so held. See In re Widening of Michigan Avenue,Roosevelt to Livernois (Parcel 68), 280 Mich. 539, and cases cited therein.
The question whether there was any necessity for the city to take the lands here in question, for recreational purposes, if the city already owned other lands in the same locality equally suitable for such purposes, was a proper question for the determination of the jury. The testimony offered by appellants, as bearing on the question of necessity, to the effect that other lands in the vicinity, already owned by the city, would accommodate the needs of the public equally well, was competent and should have been admitted. City of Grand Rapids v. Coit,149 Mich. 668; Village of Hamtramck v. Simons, 201 Mich. 458.
Fort Street Union Depot Co. v. Backus, 92 Mich. 33, relied upon by the city (appellee) is not in point. The question there was whether the Fort Street Union Depot Company could condemn the lands in question when it was shown it could condemn other lands for its purposes, then owned by another, a railroad company. In the instant case, the city already owns the "other lands," which the jury might consider were equally sufficient for the recreational purposes sought, thereby negativing the necessity for condemning the lands of the appellants. *Page 220
This Court can not say how heavily the testimony which the trial judge refused to admit might have weighed in the balance, when the jury were considering the question of necessity. It should have been admitted. Nor do we pass upon the merits of the question whether there is any necessity for condemning the lands in question. That was for the jury. In view of this conclusion, other questions raised by appellants do not require consideration.
The verdict and subsequent confirmation are set aside and a new trial granted, with costs of this Court to appellants.
CARR, C.J., and BUTZEL, BUSHNELL, SHARPE, NORTH, and DETHMERS, JJ., concurred with BOYLES, J.