Department of Transportation v. Tomkins

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 11, 2008

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiff-Appellant,

v No. 132983

RODNEY TOMKINS and DARCY
TOMKINS,

Defendants-Appellees.
_______________________________

BEFORE THE ENTIRE COURT

YOUNG, J.

This case involves a partial taking of defendants’ property in connection

with the construction of the M-6 highway. We are asked in this case to examine

the scope of damages permitted under the phrase “just compensation” in article 10,

§ 2 of the 1963 Michigan Constitution. In addition to the fair market damages

associated with the land taken, defendants also sought damages associated with the

dust, dirt, noise, and related general effects of the M-6 project. However, the
Uniform Condemnation Procedures Act (UCPA)1 specifically excludes

compensation for the “general effects” of a project for which property is taken that

are experienced by the general public or by property owners from whom no

property is taken.2 The circuit court excluded general effects damages but the

Court of Appeals reversed, holding that the UCPA’s limitation on damages was

unconstitutional because it conflicted with the established constitutional meaning

of “just compensation.”

Given the paucity of evidence indicating that, before 1963, those

sophisticated in the law understood that just-compensation damages included

“general effects” damages and contrary indications from pre-1963 caselaw and

secondary sources, we conclude that the presumption of the constitutionality of

MCL 213.70(2) has not been overcome and hold that it is constitutional. Thus, the

circuit court properly relied on MCL 213.70(2) to exclude evidence of “general

effects” damages attributable to the M-6 highway. We reverse the Court of

Appeals and remand to the circuit court for further proceedings consistent with

this decision.

I. FACTS AND PROCEDURAL HISTORY

In connection with its construction of the M-6 limited-access freeway

serving southern portions of Kent County, plaintiff Michigan Department of

1
MCL 213.51 et seq.

2
MCL 213.70(2).

2

Transportation (MDOT) determined that it was necessary to condemn a portion of

defendants’ two-acre parcel fronting Kenowa Avenue. The M-6 project called for

MDOT to construct several bridge overpasses to accommodate existing roads such

as Kenowa Avenue that would otherwise have been interrupted by the new

freeway. MDOT estimated that it was necessary to take a portion of defendant’s

land, approximately 49 feet by 120 feet, in order to construct the elevated overpass

at Kenowa.

After defendants rejected MDOT’s offer of $4,200 for the strip of land,

MDOT initiated a condemnation action under the UCPA in July 2001.3 Experts

for both parties agreed that the strip of land had a fair market value of $3,800.

However, defendants also sought an additional $48,200 in damages to the

remaining property that defendants’ appraiser attributed to the “dust, dirt, noise,

vibration, and smell” of nearby M-6.

On January 23, 2004, MDOT filed a motion in limine or, in the alternative,

a motion for summary disposition under MCR 2.116(C)(8) seeking to exclude any

evidence of the “general effects” damages. Because the parties’ experts agreed on

the fair market value of the condemned property, MDOT argued it was entitled to

summary disposition if the “general effects” evidence was excluded. In March

3
MDOT also named Byron Center State Bank and Chase Mortgage as
defendants. However, they were later dismissed with prejudice by the circuit
court’s May 2004 final judgment, which stated that these parties “shall not receive
any compensation or other amounts arising out of MDOT’s acquisition of property
in this proceeding.” They are not part of this appeal.

3

2004, the circuit court granted MDOT’s motion, relying on MCL 213.70(2), and

later entered a final judgment awarding defendants $3,800 as full compensation

for the taking as well as statutory attorney fees and interest.

The Court of Appeals reversed the circuit court, holding that the exclusion

of “general effects” damages in MCL 213.70(2) was unconstitutional because it

impermissibly conflicted with the established constitutional meaning of “just

compensation.”4 The panel concluded that “any and all factors relevant to market

value [must] be taken into consideration when determining the difference in the

remaining property’s value before and after the taking.”5

In addition, the panel, citing Campbell v United States,6 and decisions from

other jurisdictions interpreting Campbell,7 held that in a partial taking, “‘[w]here

the use of the land taken constitutes an integral and inseparable part of a single use

to which the land taken and other adjoining land is put, the effect of the whole

improvement is properly to be considered in estimating the depreciation in value

of the remaining land.’”8 The Court of Appeals remanded to the circuit court to

4
Dep’t of Transportation v Tomkins, 270 Mich App 153, 166; 715 NW2d
363 (2006).
5
Id.
6
266 US 368; 45 S Ct 115; 69 L Ed 328 (1924).
7
Andrews v Cox, 129 Conn 475; 29 A2d 587 (1942); City of Crookston v
Erickson, 244 Minn 321; 69 NW2d 909 (1955).
8
Tomkins, 270 Mich App at 168, quoting Andrews, 129 Conn at 482.

4

evaluate whether the overpass construction was “integral and inseparable” to the

M-6 project. On remand, the circuit court found that a question of fact existed

regarding this issue. Consequently, the Court of Appeals again remanded to the

circuit court “to allow the trier of fact to consider the experts’ testimony regarding

the proper just compensation for the diminution in value of the remainder (that is,

the portion of the Tomkins parcel left over after the government taking) that takes

into account all relevant factors affecting its market value.” It subsequently

denied MDOT’s motion for reconsideration.

MDOT filed an application for leave to appeal, which this Court granted.9

II. STANDARD OF REVIEW

Questions of constitutional interpretation and statutory interpretation are

questions of law reviewed de novo by this Court.10 This Court also reviews de

9
478 Mich 903 (2007). The order granting leave to appeal, in addition to
inviting amici to move for leave to file briefs, asked the parties to address:

(1) what was the ratifiers’ common understanding of the phrase “just
compensation” when they ratified Const 1963, art 10, § 2, and was it commonly
understood that “just compensation” in inverse condemnation cases was different
than “just compensation” in direct, partial taking cases; and (2) whether § 20(2) of
the Uniform Condemnation Procedures Act, MCL 213.70(2), impermissibly
conflicts with this established meaning of “just compensation.” [Id.]
10
Co Rd Ass’n of Michigan v Governor, 474 Mich 11, 14; 705 NW2d 680
(2005); Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32;
658 NW2d 139 (2003).

5

novo a trial court’s decision to grant a motion for summary disposition.11

III. RULES OF STATUTORY AND CONSTITUTIONAL INTERPRETATION

It is axiomatic that statutory language expresses legislative intent. “A

fundamental principle of statutory construction is that ‘a clear and unambiguous

statute leaves no room for judicial construction or interpretation.’”12 Where the

statute unambiguously conveys the Legislature’s intent, “the proper role of a court

is simply to apply the terms of the statute to the circumstances in a particular

case.”13 Statutes are presumed constitutional, and this Court exercises the power

to declare a law unconstitutional with extreme caution, never exercising it where

serious doubt exists with regard to the conflict.14

When interpreting our state constitution, this Court seeks the original

meaning of the text to the ratifiers, the people, at the time of ratification.15

11
Perry v Golling Chrysler Plymouth Jeep, Inc, 477 Mich 62, 65; 729
NW2d 500 (2007).
12
In re Certified Question (Kenneth Henes Special Projects Procurement v
Continental Biomass), 468 Mich 109, 113; 659 NW2d 597 (2003), quoting
Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993).
13
In re Certified Question, 468 Mich at 113.
14
Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004).
15
Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004).

6

Technical legal terms must be interpreted in light of the meaning that those

sophisticated in the law would have given those terms at the time of ratification.16

IV. ANALYSIS

In Silver Creek, this Court observed that the doctrine of eminent domain,

the power of the government to take private property for a public use and with just

compensation, is firmly established in both our federal and state constitutions.17

Dating back to the earliest days of statehood, Michigan’s various constitutions,

including the most recent 1963 iteration, have reserved this power to the state.18

16
Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 376; 663
NW2d 436 (2003).
17
Id. at 374.
18
Every Michigan Constitution has included a provision requiring just
compensation for a taking. While Michigan was still a territory, its 1835
Constitution stated that “[t]he property of no person shall be taken for public use,
without just compensation therefor.” Const 1835, art 1, § 19. This provision
carried forward into statehood. See Const 1850, art 18, § 14 (“The property of no
person shall be taken for public use without just compensation therefor.”); see also
Const 1908, art 13, § 1 (“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.”).

Under the 1850 and 1908 constitutions, the necessity of the taking and the
compensation were to be determined by a jury of 12 freeholders. The 1908
Constitution also allowed for a panel of commissioners to resolve these questions.
See, e.g., Const 1850, art 18, § 2 (“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 twelve freeholders . . . or by not less than three
commissioners, appointed by the court of record, as shall be prescribed by law
.…); Const 1908, art 13, § 2 (“When private property is taken for the use or
(continued…)

7

Const 1963, art 10, § 2 states, in relevant part, that “[p]rivate property shall not be

taken for public use without just compensation . . . .”

The Legislature enacted the UCPA in 1980 to make uniform the statutes

that govern the exercise and procedure of eminent domain. Consistent with the

constitutional mandate to award “just compensation,” the UCPA similarly

demands that individuals receive “just compensation” when their property is taken

by the government.19 When we interpret the UCPA in light of art 10, § 2, we must

remember that “to the degree the Constitution has been construed to outline the

nature of ‘just compensation,’ the statute must be similarly construed because no

act of the Legislature can take away what the Constitution has given.”20 Thus, the

Legislature, through the UCPA or any other statute, cannot lower the

constitutional minimum of “just compensation” established by the people who

ratified the 1963 constitution.

(…continued)
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 3 commissioners appointed by a court of record as shall be
prescribed by law . . . . ”). This language was not carried forward into Const 1963,
art 10, § 2.

Also, Michigan voters approved a 2006 ballot proposal that amended Const
1963, art 10, § 2. However, the amendment, passed after the condemnation suit
was initiated in this case, is not applicable to the constitutional question presented
here.
19
MCL 213.55(1).
20
Silver Creek, 468 Mich at 374.

8

 In Silver Creek, we recognized that the phrase “just compensation” cannot

be interpreted “merely by a careful reading of the phrase.”21 Indeed, this Court

has held that “the whole of art 10, sec 2 has a technical meaning that must be

discerned by examining the ‘purpose and history’ of the power of eminent

domain.”22 “Just compensation” falls into the category of words and phrases that

is not capable of definition merely by reference to a dictionary. Rather, it is a

phrase freighted with constitutional significance in our jurisprudence, specifically

in the law of eminent domain. Thus, we concluded in Silver Creek that, as a

technical legal term of art, we are required to give the phrase “just compensation”

the same meaning given by those sophisticated in the law when 1963 Const, art

10, § 2 was ratified in 1963.23 However, we cautioned elsewhere that arriving at a

fixed meaning of “just compensation” before 1963 is complicated by the reality

that in the past this phrase was “a legal term of art of enormous complexity.”24

The aptness of this observation is self-evident in this case.

The provision of the UCPA at issue in this case is MCL 213.70, which sets

out the process for determining fair market value. It was amended by the

21
Id. at 375.
22
Hathcock, 471 Mich at 471 (emphasis in original).
23
Silver Creek, 468 Mich at 376.
24
Hathcock, 471 Mich at 470.

9

Legislature in 1996, and the amendment, among other revisions, added subsection

2. This subsection states:

The general effects of a project for which property is taken,
whether actual or anticipated, that in varying degrees are
experienced by the general public or by property owners from whom
no property is taken, shall not be considered in determining just
compensation. A special effect of the project on the owner’s
property that, standing alone, would constitute a taking of private
property under section 2 of article X of the state constitution of 1963
shall be considered in determining just compensation. To the extent
that the detrimental effects of a project are considered to determine
just compensation, they may be offset by consideration of the
beneficial effects of the project.

MCL 213.70(2) separates the “general effects of a project for which property is

taken” from a “special effect of the project” on the property that on its own would

constitute a taking under art 10, § 2. Under the statute, “general effects” damages

are “not [to] be considered in determining just compensation.”25

In this case, if the statute were applied to the partial taking of defendants’

property, defendants could not be compensated for the “dust, dirt, noise, vibration,

and smell” created by M-6. These are general effects of the construction of M-6

that, in varying degrees, are experienced by the general public and property

owners from whom no property has been taken. For example, any one of

defendants’ neighbors whose property was not taken to construct M-6 would

experience the same general effects of M-6 as defendants. We must decide

25
The statute also permits the detrimental effects of the project to be offset
by the project’s beneficial effects to determine just compensation.

10

whether the Legislature’s exclusion of these “general effects” damages

contravenes the constitutional minimum of just compensation established by Const

1963, art 10, § 2.

The Court of Appeals described the basic rule of damages in a partial

taking as the value of the property taken plus the remaining portion’s decrease in

value that is attributable to the use made of the property taken.26 It held that the

decrease or diminution in value of the remaining portion is determined by

calculating the difference between the fair market value of the remaining property

before and after the taking.27 In order to do this, the panel held that this Court’s

precedent required that “‘any evidence that would tend to affect the market value

of the property as of the date of condemnation is relevant . . . .’”28 The Court of

Appeals concluded that this broad, inclusive method of calculating the remaining

parcel’s diminished fair market value must take into consideration the general

effects of the project for which the property was taken.

Defendants and their supporting amici curiae likewise focus their attention

on language in this Court’s decisions before 1963 indicating that in a partial taking

the “decreased value of the residue of the parcel on account of the use made of the

26
Tomkins, 270 Mich App at 159, citing In re Widening of Fulton Street,
248 Mich 13, 20-21; 226 NW 690 (1929).
27
Tomkins, 270 Mich App at 159, citing Dep’t of Transportation v
Sherburn, 196 Mich App 301, 305; 492 NW2d 517 (1992).
28
Tomkins, 270 Mich App at 159-160, quoting Dep’t of Transportation v
VanElslander, 460 Mich 127, 130; 594 NW2d 841 (1999) (emphasis in original).

11

land taken is also allowable as compensation.”29 Under this pre-1963 formula for

damages in a partial taking, defendants contend that the “use made of” their

condemned strip of land was the construction of the M-6 highway, which included

the Kenowa Avenue overpass. Defendants reason that they are entitled to

compensation for the decreased value of the remainder of their property

attributable to the dust, noise, vibration, smell, and similar disturbances created by

M-6.

The Court of Appeals also held that there is a distinction between liability

in inverse condemnation cases30 and damages in direct, partial condemnation

cases. In Spiek v Dep’t of Transportation,31 this Court held that “[t]he right to just

compensation, in the context of an inverse condemnation suit for diminution in

value caused by the alleged harmful affects [sic] 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

29
In re Widening of Michigan Ave, Roosevelt to Livernois (Parcel 68), 280
Mich 539, 548-549; 273 NW 798 (1937) (citations omitted); see also In re
Widening of Bagley Avenue, 248 Mich 1, 5; 226 NW 688 (1929).
30
See Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445
NW2d 61 (1989) (“An inverse or reverse condemnation suit is one instituted by a
landowner whose property has been taken for public use ‘without the
commencement of condemnation proceedings.’ Under Michigan law, a ‘taking’
for purposes of inverse condemnation means that governmental action has
permanently deprived the property owner of any possession or use of the
property.”) (Internal citation omitted).
31
456 Mich 331, 348; 572 NW2d 201 (1998).

12

suffered by all persons similarly situated.” The Court of Appeals declined to

apply the rule of Spiek to this case because it held that Spiek was carefully limited

to inverse condemnation cases where there had been no direct or physical invasion

of the landowner’s property.32 In addition, the panel declined to follow the

reasoning of State v Schmidt,33 a Texas Supreme Court case cited in Spiek that

rejected the argument that damages are different in inverse and direct

condemnation cases, noting that many other states had reached a conclusion

opposite the Texas Supreme Court.34

The Court of Appeals also distinguished In re Petition of State Hwy

Comm’r (State Hwy Comm’r v Busch),35 which MDOT claimed was crucial to

grasping the pre-1963 understanding of “just compensation.” The Busch Court,

citing Campbell v United States,36 stated that “[t]he general rule applied when part

32
Tomkins, 270 Mich App at 162-163.
33
867 SW2d 769 (Tex, 1993).
34
Tomkins, 270 Mich App at 164-166.
35
326 Mich 183; 40 NW2d 111 (1949).
36
266 US 368, 45 S Ct 115, 69 L Ed 328 (1924). In Campbell, the United
States government took possession of 1.81 acres belonging to Campbell’s roughly
70-acre parcel that would be part of a proposed federal nitrate plant. The
government took possession of a number of parcels to accumulate the needed
1,300 acres for the plant. After erecting a few buildings and other miscellaneous
structures, the government abandoned the project. The Supreme Court held that
Campbell was not entitled to damages to his remaining property that were due to
the acquisition of adjoining lands belonging to others. It held that “[t]he rule
supported by better reason and the weight of authority is that the just
(continued…)

13

of a parcel of land is condemned is that just compensation does not include the

diminution in the value of the remainder caused by the acquisition of the adjoining

lands of others for the same undertaking.”37 The Busch Court held that property

owners could not be compensated for the effect of the taking of their neighbors’

property on their remaining parcel even though the property was taken for the

same road construction project.38 The Court of Appeals below distinguished

Busch on the basis that defendants were not directly claming damages from the

taking of their neighbor’s land but, rather, for the diminution of value to their own

property caused by the partial taking of their property for the M-6 freeway.39

After considering the Court of Appeals’ reasons for ruling that MCL

213.70(2) is unconstitutional, we are persuaded that it erred. First, the rule on

which the Court of Appeals relied is no more than a statement of general

principles. It is true that a guiding principle when awarding just compensation in a

condemnation suit is to “neither enrich the individual at the expense of the public

nor the public at the expense of the individual” but to leave him “in as good a

(…continued)
compensation assured by the Fifth Amendment to an owner, a part of whose land
is taken for public use, does not include the diminution in value of the remainder
caused by the acquisition and use of adjoining lands of others for the same
undertaking.” Id. at 372.
37
Busch, 326 Mich at 189.
38
Id. at 188.
39
Tomkins, 270 Mich App at 163. The Court of Appeals refers to Busch as
In re Ziegler.

14

position as if his lands had not been taken.”40 Thus, in a partial taking, the formula

to calculate the fair market value of the remainder parcel must account for the fact

that damages will vary from case to case, depending on the unique circumstances

of each taking. Restoring the individual to his position before the taking will

require a flexible, case-by-case approach to damages.

However, mere recitation of these principles calling for flexibility does not

settle the matter.41 The particular question posed here is whether those

sophisticated in the law in 1963 relied on these principles to include “general

effects” damages in a just compensation award. The reality is that there is a

paucity of pre-1963 Michigan caselaw that definitively establishes a clear answer

to this question.42 A pregnant fact acknowledged by the parties is that there is no

40
In re State Hwy Comm’r, 249 Mich 530; 229 NW 500 (1930).
41
The Court of Appeals also cited caselaw decided by this Court and the
Court of Appeals after 1963, which is not helpful to determining the ratifiers’
common understanding except to the extent that the cases cited and relied on pre-
1963 caselaw.
42
This Court has held that the Address to the People and the constitutional
convention debates are at times relevant to determining the meaning of particular
provisions to the ratifiers. Studier v Michigan Pub School Employees’ Retirement
Bd, 472 Mich 642, 655-656; 698 NW2d 350 (2005); People v Nutt, 469 Mich 565,
574; 677 NW2d 1 (2004). The Address to the People stated that the decision to
eliminate the procedures for eminent domain proceedings found in the 1908
constitution “clearly indicates that proper procedures for the acquisition of private
property for public use are to be determined by the legislature and that
compensation for such property must be determined in proceedings in a court of
public record.” In addition, the convention delegates’ rejection of a proposal to
broaden the scope of eminent domain to property that was either “taken or
damaged” suggests that the ratifiers did not intend to alter the state of Michigan’s
(continued…)

15

indication in any reported Michigan case that “general effects” damages were ever

awarded before 1963.43

Defendants and their supporting amici curiae cite numerous cases that they

argue support the proposition that “general effects” damages were compensable

before 1963.44 These cases state many of the general principles for awarding just

(…continued)
pre-1963 eminent domain jurisprudence. 2 Official Record, Constitutional
Convention 1961, pp 2580-2602. However, neither of these points sheds much
light on the question whether “general effects” damages fall within the pre-1963
established definition of “just compensation.” Thus, resort to either of these
interpretive aids is of limited value.
43
One amicus suggests the absence of caselaw on this question is due to the
fact that, under earlier constitutions and condemnation statutes, the condemning
agency was permitted to discontinue the taking before confirmation of the verdict.
See Detroit v Empire Dev Co, 259 Mich 524, 526; 244 NW 150 (1932). If the just
compensation award was excessive, it was routine practice, according to amicus,
for the condemning agency simply to walk away or find another way to
accomplish the project. Thus, amicus speculates that an excessive award,
particularly one involving “general effects” damages, would rarely be the subject
of an appeal. However, in the absence of any reported pre-1963 cases explicitly
addressing the availability of “general effects” damages, a contrary conclusion that
“general effects” damages were never recoverable is equally plausible.
44
See, e.g., Port Huron & S-W R Co v Voorheis, 50 Mich 506; 15 NW 882
(1883); Barnes v The Michigan Air Line R, 65 Mich 251; 32 NW 426 (1887);
Grand Rapids, L & D R Co v Chesebro, 74 Mich 466; 42 NW 66 (1889); Comm’rs
of Parks and Boulevards of Detroit v Moesta, 91 Mich 149; 51 NW 903 (1892);
Comm’rs of Parks and Boulevards of Detroit v Chicago, D & C Grand Trunk
Junction R Co, 91 Mich 291; 51 NW 934 (1892); Fitzsimons & Galvin, Inc v
Rogers, 243 Mich 649; 220 NW 881 (1928); Johnstone v Detroit, GH & M R Co,
245 Mich 65; 222 NW 325 (1928); In re Widening of Bagley Avenue, 248 Mich 1;
226 NW 688 (1929); In re State Hwy Comm’r, 256 Mich 165, 239 NW 317
(1931); In re Dillman, 256 Mich 654; 239 NW 883 (1932); In re Widening of
Michigan Avenue, Roosevelt to Livernois (Parcel 68), 280 Mich 539; 273 NW 798
(1937); In re Widening of Michigan Avenue (Rott’s Appeal), 299 Mich 544; 300
(continued…)

16

compensation in a partial taking cited by the Court of Appeals that we have

already mentioned. However, none of these cases explicitly endorses the principle

that “general effects” damages are compensable in a partial taking. Instead, these

cases appeared to focus on diminution or severance damages that were specific

and unique to the remaining parcel, and not effects that were felt generally by the

public.45

(…continued)

NW 877 (1941); In re Grand Haven Hwy, 357 Mich 20; 97 NW2d 748 (1959);

State Hwy Comm’r v Eilender, 362 Mich 697; 108 NW2d 755 (1961).

45
For instance, in Voorheis, 50 Mich at 512-513, this Court set aside a just
compensation award that did not take into consideration the effect of the partial
taking on the remainder of the owner’s homestead where the homestead consisted
of both the lot subject to the taking and several contiguous lots from which no
property was taken. In Barnes, 65 Mich at 253, this Court held that landowners
could not file a nuisance action based on a taking of property for which they had
already received just compensation where the railroad took no action inconsistent
with the original purpose of the taking. In Moesta, 91 Mich at 155, we held that
the property owner was entitled to recover for loss occasioned by the interruption
of its business. In Chicago, D & C, 91 Mich at 293, we held that the question
whether land used for warehouse purposes was less valuable due to the taking
should have been submitted to the jury. In Johnstone, 245 Mich at 84-85, this
Court held that where a taking violates or destroys a negative easement, the
landowner is entitled to nominal damages for destruction of the easement and
diminishment in value of the premises as a result of the use for which the property
is taken. In In re Bagley Ave, 248 Mich at 6-7, we held that the jury was properly
instructed that it could award damages to reconstruct the remaining portions of
buildings partially taken by the city. In In re Widening of Michigan Avenue, 280
Mich at 551-552, this Court upheld a just compensation award that was given in
part to a lessee of the condemned property. In In re Grand Haven Hwy, 357 Mich
at 26-32, this Court upheld a just compensation award that took into account that
the property owner was forced to move its entire facility to a new location as a
result of the taking.
(continued…)

17

 One amicus curiae supporting defendants cites State Hwy Comm’r v

Schultz,46 as an example of “general effects” damages being awarded in a partial

taking case before 1963. According to this Court’s opinion, $300 of a $64,042.37

just compensation award was attributed to “noise and disturbance.”47 The amicus

argues that this brief mention of an award for “noise and disturbance” proves that

before 1963 “general effects” damages were awarded routinely in partial takings.

We disagree with amicus that this is compelling evidence on which we

could rest a conclusion that MCL 213.70(2) is unconstitutional. Schultz focused

on the question whether the just compensation award was erroneous because the

jury took into consideration the existence of sand and gravel deposits on the land

when the property had been used for farming purposes. This Court affirmed the

award on the ground that it was supported by the evidence that the highest and

best use of the property was for a gravel pit and that the amount and value of the

available mineral deposits were relevant factors for the jury to consider. Certainly

the loss of the value of the mineral deposits was a specific injury to the property.

(…continued)

In short, all these cases were either inapposite to the issue in this case or
they reviewed just compensation awards that did not include “general effects”
damages but, rather, included damages that were specific and unique to the
property subject to the partial taking.
46
370 Mich 78; 120 NW2d 733 (1963).
47
Id. at 83.

18

Schultz is a fragile foundation on which to rest the alleged unconstitutionality of

MCL 213.70(2).48

Second, we disagree with the Court of Appeals interpretation of Spiek. The

Court of Appeals relied on two scholarly articles to conclude that liability in

inverse condemnation and direct, partial condemnation cases is necessarily

different and that the rule of damages from Spiek must be limited to the former.49

One problem with the panel’s conclusion is that Spiek likely addressed only

48
Also, defendants’ reliance on pre-1963 language that property owners in
a partial taking are entitled to compensation for the “use made of the land taken”
does not prove that just compensation for that use would include “general effects”
damages. The “use made of the land taken” could cause damage to the remaining
property that is unique to that property and has nothing to do with general effects
felt by the public.
49
Pesick, Eminent domain: Calculating just compensation in partial taking
condemnation, 82 Mich B J 37-38 (2003) (citing 2A Nichols on Eminent Domain
§ 6.08[2] [rev ed 1993] and Silver Creek to conclude that “any attempt to employ
[inverse condemnation’s rule of liability in an actual taking] conflicts with the
established meaning of constitutional ‘just compensation’ that requires property
owners to be compensated for the difference in a property’s value before and after
the taking, and runs headlong into the Michigan Supreme Court’s requirement that
just compensation must take into account ‘all factors relevant to market value.’”);
Ackerman & Yanich, Just compensation and the framers’ intent: A constitutional
approach to road construction damages in partial taking cases, 77 U Det Mercy L
R 241, 254 (2000) (asserting that “[b]ecause 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
Ackerman article cited two pre-1963 decisions, Rogers, supra, and Fulton Street,
supra, for the general rule of damages in partial taking cases. None of these
supports a clear basis for recovery of “general effects” damages in partial takings
before 1963.

19

inverse condemnation claims because that was the specific claim brought by the

plaintiff. That the holding in Spiek was limited in that respect does not mean that

those sophisticated in the law before 1963 applied a separate rule of damages for

an actual, partial taking. As noted below, there is some counter-indication that the

rule of damages in Spiek was not limited only to inverse condemnation cases.50

There is no dispute that an inverse condemnation claim and an actual,

partial taking differ in form. An inverse condemnation claim is not initiated by the

government entity under the UCPA because it has not appropriated a property

interest for public use. Thus, the property owner must establish that the

government’s actions amounted to a constitutional “taking” of property. In an

actual taking, liability for the taking has been conceded and the question is one of

damages or “just compensation.” However, despite these formal differences, our

review of pre-1963 caselaw does not suggest that “general effects” damages were

50
Also, the panel’s observation that a number of other states have
recognized a distinction between damages in these two types of cases, and its
decision to favor those jurisdictions, is unhelpful where other states’ eminent
domain provisions are sometimes worded differently. For instance, the Court of
Appeals cited City of Crookston v Erickson, 244 Minn 321, 325; 69 NW2d 909
(1955), for the rule that “it is sufficient that the damage is shown to have been
caused by the taking of part of [the] property even though it is damage of a type
suffered by the public as a whole.” However, Minnesota’s Constitution states in
article 1, § 13, that “private property shall not be taken, destroyed or damaged for
public use without just compensation therefor, first paid or secured.” (Emphasis
added). Const 1963, art 10, § 2 does not require just compensation where private
property is destroyed or damaged without a taking. As noted in n 38, supra, the
delegates to the 1961 Constitutional Convention declined to add this type of broad
language to Michigan’s eminent domain provision.

20

treated differently in an actual, partial taking and an inverse condemnation case.

Indeed, as discussed below, there is some evidence that this Court applied

principles from inverse condemnation to direct, partial takings cases before the

1963 constitution was ratified.51 Thus, although we do not necessarily rely on

Spiek to uphold MCL 213.70(2), we disagree with the Court of Appeals

conclusion that the rule of Spiek does not apply to partial takings.

Further, unlike the Court of Appeals, we find Busch, supra, helpful in

answering whether MCL 213.70(2) is constitutional. Busch was decided before

1963 and certainly informed the understanding of those sophisticated in the law.

The Busch Court denied the property owners compensation for “the diminution in

value of the remainder caused by the acquisition of the adjoining lands of others

for the same undertaking.”52 Busch reflected a commonsense limitation on

damages in a partial taking that a property owner is not entitled to consequential

damages arising from the taking of another individual’s property. Thus, to the

extent that MCL 213.70(2) precludes “general effects” damages in a partial taking

of defendants’ property arising from the acquisition of neighboring property for

the M-6 freeway, it is entirely consistent with the pre-1963 common understanding

of “just compensation” informed by Busch.

51
State Hwy Comm’r v Watt, 374 Mich 300, 314; 132 NW2d 113 (1965)
(partial taking case citing Buhl v Fort Street Union Depot Co, 98 Mich 596 [1894],
an inverse condemnation case).
52
Busch, 326 Mich at 189.

21

 We find additional guidance from this Court’s plurality decision in State

Hwy Comm’r v Watt,53 an instance where a particular type of “general effect”

damage—diminution in value attributable to the diversion of traffic—was held to

be not compensable under the 1908 Constitution.54 In Watt, the state highway

commission took a strip of land on the east side of Watt’s property for highway

purposes. The existing highway ran along the west side and northwest corner of

Watt’s property where he operated a motel. Watt argued that as part of his just

compensation he was entitled to the diminution in value of his remaining property

attributable to the diversion of traffic from the old US-131, and from his motel, to

the new US-131. The trial court declined to confirm the award that had

compensated Watt for traffic diversion. This Court affirmed the trial court in a

four-to-three decision. Chief Justice Kavanagh authored the opinion, joined by

Justices Smith and O’Hara, holding that damages for diversion of traffic were not

compensable in a partial taking.55 The opinion, quoting at length from a dissenting

opinion in a Kansas Supreme Court case that decided a similar issue, concluded

that “‘“[t]he change in traffic flow in such a case is the result of the exercise of the

53
374 Mich 300; 132 NW2d 113 (1965).
54
The Ackerman article cited by the Court of Appeals acknowledged Watt
as a case where this Court held that diminution in value due to traffic diversion
was not compensable but limited it as the sole exception to the rule.
55
Justice Black concurred in the result. Thus, although a majority of this
Court agreed on the result, only three justices agreed on a rationale. Justice Kelly
authored a dissenting opinion joined by Justices Dethmers and Souris. Justice
Adams did not participate.

22

police power or the incidental result of a lawful act, and is not the taking or

damaging of a property right.”’”56

Justice Kavanagh’s opinion also addressed the possibility that the state

highway commission would later build a cul-de-sac near Watt’s property and

potentially cut off highway access. Regarding whether the possible construction

of the cul-de-sac would presently entitle Watt to additional damages, Justice

Kavanagh wrote:

The Fifth Amendment to the Federal Constitution and article
13 of the Michigan Constitution of 1908, under which appellants
here claim a remedy, proscribe the taking of private property
without just compensation. Compensable injury arises under those
provisions, therefore, only from a taking of property rights.

From a reading of the cases dealing with the problem, it is
observed that the property-right injury to be found and redressed in
cul-de-sac situations is the entire or material cutting-off of the
access, of an abutting owner, to the general system of highways. As
will be noted later, it is only on that basis that an abutting owner
can properly make the necessary claim of special damage, i.e.,
damage not incurred, in the same, greater or lesser degree, by the
general public.[57]

In view of defendants’ claim that those sophisticated in the law before 1963

uniformly believed that “general effects” damages were compensable in a partial

56
Watt, 374 Mich at 311, quoting Riddle v State Hwy Comm’n, 184 Kan
603, 620; 339 P2d 301 (1959), quoting State, ex rel Merritt v Linzell, 163 Ohio St
97, 104; 126 NE2d 53 (1955).
57
Watt, 374 Mich at 312 (emphasis added).

23

taking, Watt undercuts that thesis.58 Moreover, there is an important similarity

between a claim of damages for the diversion of traffic and a claim of damages for

the “dust, dirt, noise, vibration, and smell” caused by a highway. Both are

“general effects” damages felt by the general public that are incidental to the

building of a highway.

Furthermore, in the absence of strong primary authority establishing a right

to “general effects” damages in partial takings before 1963, a useful secondary

source to which we turn to understand the pre-1963 meaning of “just

compensation” is the scholarly writings of our venerable Michigan Supreme Court

Justice Thomas M. Cooley. Justice Cooley noted the general rule that when the

government undertakes a public work, there is no right to compensation if no legal

right has been appropriated in the process:

It is a general rule, however, that the mere fact that one
suffers incidental loss in consequence of the undertaking and
construction of a public work, where nothing to which he has a legal
right is actually appropriated, can never give him a claim to
compensation.[59]

58
Although Watt was a plurality decision, its holding that diversion of
traffic is not an element of damages in condemnation proceedings was reaffirmed
by a clear majority of this Court in State Hwy Comm’r v Gulf Oil Corp, 377 Mich
309, 315; 140 NW2d 500 (1966), a case decided under the 1963 constitution.
59
1 Cooley, The General Principles of Constitutional Law in the United
States of America (1880), p 337.

24

Thus, according to Justice Cooley, where there is such “incidental loss,” it is

damnum absque injuria—loss without injury.60

However, in a partial taking, Justice Cooley wrote that “just compensation”

may perhaps depend on the effect which the appropriation may have
on the owner’s interest in the remainder, to increase or diminish its
value, in consequence of the use to which that taken is to be devoted,
or in consequence of the condition of the condition in which it may
leave the remainder in respect to convenience of use . . . .[61]

Justice Cooley elaborated on this rule of damages, noting that those benefits or

damages felt generally by the public were excluded from the calculation. He

wrote that “mere incidental injuries or benefits, like those suffered and received by

the community at large, . . . are to be excluded altogether from the computation.”62

Similarly, in Constitutional Limitations, Justice Cooley stated that

there must be excluded from consideration those benefits which the
owner receives only in common with the community at large in
consequence of his ownership of other property, and also those
incidental injuries to other property, such as would not give to other
persons a right to compensation, while allowing those which directly
affect the value of the remainder of the land not taken; such as the
necessity for increased fencing, and the like.[63]

These are, of course, only secondary authorities concerning the scope of damages

recoverable for a partial taking. However, given the pervasive, perennial influence

60
Id. at 338.

61
1 Cooley, Constitutional Limitations (1st ed), p 565.

62
General Principles, pp 341-342 (citations omitted).

63
Constitutional Limitations, pp 569-570 (citations omitted).

25

of Justice Cooley’s scholarly work on the development of Michigan law, these

passages buttress the inference that those sophisticated in the law before 1963

understood that those “general effects” of a taking felt by the public are not

compensable in a partial taking.

The reality is that there is negligible direct pre-1963 caselaw or other

evidence that allows one to say with conviction that our ratifiers understood that a

taking included recovery of “general effects” damages, while there is some

evidence pointing to the opposite conclusion. Given the standard of review we

must apply in a constitutional challenge to a statute, we conclude that there is

insufficient evidence to overcome the presumption of constitutionality.

V. RESPONSE TO THE DISSENT

The essential challenge of the dissent is that “just compensation” is not a

term of art but is an ordinary phrase with a “commonsense” understanding—one

that before 1963, Michigan constitutions required a jury of freeholders to

determine.64 The dissent obviously assumes that, because a jury is given the

responsibility to apply a legal standard to a set of facts, the jury also has unfettered

discretion to define that standard. This thesis cannot be squared with how juries

function generally in our judicial system and raises the question whether the

dissent believes that any claim of damages, even the most absurd, could be

64
See also Silver Creek, 468 Mich at 375 n 10, and accompanying text
(rejecting Justice Weaver’s argument that “just compensation” is “obvious on its
face”).

26

properly excluded from a determination of “just compensation” as a matter of

law.65

Jurors in our system are instructed on the law; they do not determine the

law. Thus, jurors are instructed by the court on the meaning of terms like

“reasonable doubt,” “duty,” and “damages”—to name but a few such terms—all

of which can be defined by laymen in a “commonsense way” but have legal

meanings that diverge from their plain meaning. Thus, a jury cannot manufacture

its own definition of “reasonable doubt” or any of the other similar legal

constructs that we expect them to apply in any given case. It is not that juries are

intellectually incapable of comprehending these concepts. Rather, we are

recognizing that these terms and others have acquired technical, legal meanings

over time, which a jury cannot abandon. Such is the case with “just

compensation.”

While the dissent purports to revere Justice Cooley, it assiduously ignores

Justice Cooley on this critical point. He stressed that the “common

understanding” of a phrase in some cases is its technical meaning:

[I]t must not be forgotten, in construing our constitutions, that
in many particulars they are but the legitimate successors of the great
charters of English liberty, whose provisions declaratory of the
rights of the subject have acquired a well-understood meaning,

65
Presumably, the dissent’s view would preclude instructing a jury that
“just compensation” does not include emotional damages. Moreover, the dissent’s
position cannot be squared with earlier Michigan caselaw that has placed limits on
“just compensation” in partial takings, such as Busch, supra, and Watt, supra.

27

 which the people must be supposed to have had in view in adopting
them. We cannot understand these provisions unless we understand
their history; and when we find them expressed in technical words,
and words of art, we must suppose these words to be employed in
their technical sense. When the constitution speaks of an ex post
facto law, it means a law technically known by that designation; the
meaning of the phrase having become defined in the history of
constitutional law, and being so familiar to the people that it is not
necessary to employ language of a more popular character to
designate it. The technical sense in these cases is the sense properly
understood, because that is the sense fixed upon the words in legal
and constitutional history where they have been employed for the
protection of popular rights.[66]

The dissent’s position is also internally inconsistent. First, it endorses the

“integral and inseparable” method of the Court of Appeals for determining

whether “general effects” damages should be compensated, without

acknowledging that that test would not place the property owner whose property is

“separable” from the larger project in the same position he was in prior to the

taking. This result is inconsistent with the dissent’s guiding principle for awarding

“just compensation.” Further, the dissent fails to comment on the illogical

outcome that results from its position when neighboring property owners suffer

the same “general effects” damages but only one has experienced a partial taking.

Presumably, only the property owner who suffered the partial taking, of even the

smallest portion of property, can be compensated for “general effects” damages

while the next door neighbor, suffering the same “general effects” damages, gets

66
Constitutional Limitations, pp 59-60.

28

nothing.67 Certainly that result is an affront to principles of common sense and

equity, over which the dissent claims exclusive domain, because it leaves one

property owner in a better position than his neighbor for a common harm. Yet that

is the result the dissent’s position would compel by striking down MCL 213.70(2).

VI. CONCLUSION

Our decision is not a reflection of what this Court believes “just

compensation” should encompass in a partial taking. Rather, we have been

presented with a question of constitutional law requiring that we ascertain the

common understanding of those sophisticated in the law before 1963 believed this

highly technical term of art to mean. Having done so, we have discovered no clear

indication that “just compensation” included “general effects” damages before the

67
In Spiek, 456 Mich at 332-333, a unanimous opinion signed by the
dissenting justices in this case, this Court held that “noise, dust, vibration, and
fumes experienced by owners of property along an interstate freeway” do not
constitute a compensable taking unless “the damages incurred are unique, special,
or peculiar, or in some way different in kind or character from the effects incurred
by all property owners who reside adjacent to freeways or other busy highways.”
Damages from the type of harm suffered by all persons adjacent to a highway are
not recoverable even when the plaintiff suffers to a greater degree than other
landowners; the harm must be different in character to be compensable. Id. at 339.
The dissent would create an exception to Spiek and permit a property owner who
suffers a partial taking to recover these exact types of “general effects” damages,
even though adjacent property owners who have not experienced a partial taking
but suffer the same general effects cannot recover damages. We are not, as the
dissent suggests, upset that this outcome would be “unfair.” Post at 8 n 11.
Rather, we are simply noting that the dissent’s constitutional exegesis is not self-
evident, a priori, or intuitive, as it portrays the dissent. Its analysis, while framed
as an appeal to “common sense,” is anything but, as the dissenting justice’s joinder
in Spiek amply demonstrates.

29

ratification of our 1963 constitution and thus hold that MCL 213.70(2) is

constitutional. When the constitution places no limit on legislative prerogative,

our Legislature is free to act to effectuate the policy of this state. Consequently, if

it is desired that property owners in a partial taking be compensated for “general

effects” damages, it is up to our Legislature to enlarge by statute the scope of “just

compensation.”

We reverse the Court of Appeals judgment and remand to the circuit court

for further proceedings consistent with this decision.

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman

30

 STATE OF MICHIGAN

SUPREME COURT

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiff-Appellant,

v No. 132983

RODNEY TOMKINS and DARCY
TOMKINS,

Defendants-Appellees.
_______________________________

WEAVER, J. (dissenting).

I dissent from the majority opinion reversing the Court of Appeals

judgment and holding that MCL 213.70(2) is constitutional. I would hold that the

Legislature, by enacting MCL 213.70(2) and imposing limits on what

compensation a property owner could receive upon a partial direct taking, violated

the Michigan Constitution’s guarantee of “just compensation” for property taken

by the government, because the proper process for determining the amount of just

compensation is left to a trier of fact. Accordingly, I would affirm the Court of

Appeals judgment remanding the case to the circuit court for a trial to determine

whether the defendants may receive damages to compensate for the diminution in

value of their remaining property after the plaintiff took part of their property to

complete a large road construction project.
 Furthermore, I dissent with regard to the majority’s constitutional analysis

of the term “just compensation,” because the majority’s interpretation of “just

compensation” as a legal term of art creates a circular analysis that seemingly

abrogates the common understanding of “just compensation” before this Court’s

first analysis of “just compensation” as a legal term of art in Silver Creek Drain

Dist v Extrusions Div, Inc, 468 Mich 367; 663 NW2d 436 (2003). I continue to

disagree that “just compensation” is a legal term of art that only those learned in

the law would have understood when the Michigan Constitution of 1963 was

adopted by the people of this state.1

I. FACTS AND PROCEEDINGS

Plaintiff Michigan Department of Transportation (MDOT) initiated this

condemnation action under the Uniform Condemnation Procedures Act (UCPA)2

after the defendants, Rodney and Darcy Tomkins, rejected plaintiff’s offer to buy a

portion of the Tomkinses’ land adjacent to Kenowa Avenue in Kent County.

Plaintiff sought to buy the strip of land for use in extending Kenowa Avenue as an

overpass over the new M-6 highway that plaintiff was constructing near

defendants’ property.

Experts for both plaintiff and defendants agreed that the market value of the

strip of land at issue was $3,800. The defendants sought additional compensation

1
See my partial dissent in Silver Creek, 468 Mich at 382.

2
MCL 213.51 et seq.

2

of $48,200 for the diminution in value of their remaining parcel of land, caused by

negative effects arising from the “dust, dirt, noise, vibration, and smell” of the

nearby M-6 highway.

Plaintiff filed a motion in limine, arguing that evidence of the general

effects of the M-6 highway project was precluded under MCL 213.70(2). Plaintiff

also filed, in the alternative, a motion for summary disposition under MCR

2.116(C)(8), arguing that a claim for general-effects damages in a condemnation

action is not a claim for which relief may be granted. The trial court granted

plaintiff’s motion in limine to exclude the evidence of general effects in the

calculation of the defendants’ just compensation.

Plaintiff filed a motion for summary disposition under MCR 2.116(C)(10).

The defendants stipulated the entry of a final judgment for the value of the land

taken, $3,800, plus statutory interest, expert fees, and attorney fees.

The Court of Appeals reversed the trial court’s decision to grant plaintiff’s

motion in limine.3 The Court of Appeals held that all relevant factors must be

taken into account when determining the value of just compensation under the

Michigan Constitution and, thus, it concluded that the preclusion of general-effects

damages under MCL 213.70(2) violated the Michigan Constitution. The Court

stated that in a partial taking “[w]here the use of the land taken constitutes an

3
Dep’t of Transportation v Tomkins, 270 Mich App 153; 715 NW2d 363
(2006).

3

integral and inseparable part of a single use to which the land taken and other

adjoining land is put, the effect of the whole improvement is properly to be

considered in estimating the depreciation in value of the remaining land.”4 While

retaining jurisdiction, the Court of Appeals remanded the case to the trial court for

the court to determine whether there was an issue of fact with regard to whether

the Kenowa Avenue overpass, for which the defendants’ strip of land was taken,

was “integral [to] and inseparable” from the M-6 construction project. On

remand, the trial court concluded that there was an issue of fact. Thereafter, the

Court of Appeals again remanded the case to the trial court to determine

defendants’ just compensation, taking into account all factors relevant to the

market value of defendants’ remaining property.

Plaintiff sought leave to appeal in this Court, and this Court granted leave.5

II. STANDARD OF REVIEW

Questions concerning the constitutionality of a statutory provision are

subject to review de novo. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163

(2001).

4
Id. at 168, quoting Andrews v Cox, 129 Conn 475, 482; 29 A2d 587
(1942).
5
478 Mich 903 (2007).

4

 III. THE CONSTITUTIONALITY OF MCL 213.70(2)

Article 10, § 2 of the 1963 Michigan Constitution secures the right of

property owners to just compensation when the government takes land for public

use. At the time of the instant condemnation suit, Const 1963, art 10, § 2

provided:6

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.

This Court has held on a number of occasions that the just compensation provided

in Const 1963, art 10, § 2 “must put the party injured in as good position as he

would have been if the injury had not occurred.” State Hwy Comm’r v Eilender,

362 Mich 697, 699; 108 NW2d 755 (1961).7

In the instant case, plaintiff MDOT sought to directly take part of the

defendants’ property. In cases involving claims of partial taking, this Court has

held that “just compensation” entitles the property owner to direct compensation

for the value of the property taken, and consequential damages for the diminution

6
Const 1963, art 10, § 2 has since been amended by ballot initiative in
2006, but that amendment is not at issue in this case.
7
See also Wayne Co v Britton Trust, 454 Mich 608, 622; 563 NW2d 674
(1997); In re Edward J Jeffries Homes Housing Project, 306 Mich 638, 650; 11
NW2d 272 (1943); In re Widening of Bagley Ave, 248 Mich 1, 5; 226 NW 688
(1929); Fitzsimons & Galvin, Inc v Rogers, 243 Mich 649, 664; 220 NW 881
(1928).

5

in value of the remainder of the property owner’s property.8 “[A]ny evidence that

would tend to affect the market value of the property as of the date of

condemnation is relevant.” Dep’t of Transportation v VanElslander, 460 Mich

127, 130; 594 NW2d 841 (1997). The determination of value is not a matter of

formulas or artificial rules, but of sound judgment and discretion considering all

the relevant facts in a particular case.9

The UCPA prescribes the manner in which just compensation is “first made

or secured” pursuant to Const 1963, art 10, § 2. Section 20(2) of the UCPA, MCL

213.70(2), precludes property owners from including the general effects of a

taking in the calculation of just compensation. The statute provides:

The general effects of a project for which property is taken,
whether actual or anticipated, that in varying degrees are
experienced by the general public or by property owners from whom
no property is taken, shall not be considered in determining just
compensation. A special effect of the project on the owner’s
property that, standing alone, would constitute a taking of private
property under section 2 of article X of the state constitution of 1963
shall be considered in determining just compensation. To the extent
that the detrimental effects of a project are considered to determine
just compensation, they may be offset by consideration of the
beneficial effects of the project.

The Court of Appeals correctly held that MCL 213.70(2) violated Const 1963, art

10, § 2.

8
Johnstone v Detroit, G H & M R Co, 245 Mich 65, 81; 222 NW 325
(1928); In re Widening of Fulton Street, 248 Mich 13, 20-21; 226 NW 690 (1929).
9
In re Widening of Bagley Ave, 248 Mich at 4.

6

 Article 10, § 2 guarantees that a landowner will receive “just

compensation” for a taking of that landowner’s property. MCL 213.70(2), by

partially limiting the compensation a landowner may receive in certain situations,

decreases the amount of just compensation for landowners and, thus, it conflicts

with the mandate of art 10, § 2 that “[c]ompensation shall be determined in

proceedings in a court of record.” The Legislature does not have the authority to

take away, or limit, the right of just compensation that the Constitution has

guaranteed to landowners.

The majority errs by ruling that MCL 213.70(2) is constitutional. The

majority does not cite any authority the Legislature has to limit “just

compensation.” The majority states that acts of the Legislature are presumed

constitutional. Instead of examining the text of the Constitution other than the

words “just compensation,” the majority looks only to pre-1963 cases interpreting

“just compensation.” By basing its opinion on the lack of precedent that would

conflict with MCL 213.70(2), the majority ignores the language in the

Constitution stating that the amount of compensation to be paid is a matter for the

courts to decide. Furthermore, the majority disregards this Court’s precedent

stating that just compensation is designed to return landowners to the position they

were in before the taking took place.

With regard to the Court of Appeals remand order to the trial court to

determine whether the Kenowa Avenue overpass was “integral [to] and

inseparable” from the M-6 project, the Court of Appeals correctly decided the

7

issue. The “integral and inseparable” method, adopted from the Connecticut

Supreme Court’s Andrews decision,10 is a method of “sound judgment and

discretion” that allows owners of land that was directly, but partially, taken to

prove that their remaining property suffered diminution in value as a result of the

taking.11

10
See n 4, supra.
11
The “integral and inseparable” test offers courts a method of sound
judgment and discretion in determining who may collect general-effects damages
for partial takings because it ensures that compensation will only be awarded when
a court finds that the general effects felt by the landowner arose from the taking of
the landowner’s property. Under the test, if the land taken was separable from the
larger project, and thus did not contribute to the effects felt by the owner, then the
owner will not be compensated for those effects not directly related to the taking.
Also, while the majority may claim it unfair that a landowner whose property is
partially taken may recover general-effects damages while neighboring
landowners, whose property remains intact, will not recover the damages even
when the neighbors feel the same or worse general effects, the test does not
involve a question of fairness, but rather a determination of who may recover for
the general effects under the Constitution. The Michigan Constitution draws a line
by only providing that just compensation be awarded to the landowners whose
property was taken. There is no mention of compensation for landowners whose
property was not taken by the government. Furthermore, the “integral and
inseparable” test does not create a taking claim where none existed. As this Court
held in Spiek v Dep’t of Transportation, 456 Mich 331; 572 NW2d 201 (1998),
general effects cannot be used as the basis for a claim of a taking. However, once
a direct taking has been established, just compensation is required to return the
injured landowner to the position he or she enjoyed before the taking. In sum, the
“integral and inseparable” test allows a jury to follow the Constitution by
awarding just compensation to those whose property was partially and directly
taken, and the test allows the jury, in determining the amount of just
compensation, to award damages that arise from the taking, in order to return the
landowner to the same position the landowner enjoyed before the taking.

8

 In this case, the proper question in determining the amount of money

required to return the defendants to their position before the taking is whether the

project for which the defendants’ land was taken contributed to the diminution of

value of the remainder of the defendants’ property.

Accordingly, I vote to affirm the Court of Appeals decision remanding the

case for trial, and I support the reasons for the Court of Appeals decision.

IV. “JUST COMPENSATION” AS A TERM OF ART

In Silver Creek, a majority of justices held that the Constitution’s term “just

compensation” was a legal term of art that only those learned in the law could

have understood when the Michigan Constitution was adopted in 1963.12 I

dissented from that holding because it wrongly limited the analysis of the term

“just compensation” to the understanding of those learned in the law, even though

the constitutions throughout Michigan’s history left the determination of just

compensation to other “freeholders” (landowners).13 The majority’s constitutional

analysis in this case reveals the flaws inherent in an analysis limited to the

understanding of those learned in the law.

The majority, sticking to the “learned in the law” form of analysis, looks

only to past cases interpreting the “just compensation” provision of the Michigan

12
468 Mich at 375-376.
13
See my discussion of “just compensation” in previous constitutions, id. at
385-386.

9

Constitution. The majority holds that, because this Court had not interpreted “just

compensation” with regard to “general effects” damages, a person sophisticated in

the law in 1963 would not have understood “just compensation” to include

“general effects” damages. The majority then reasons that, because a person

sophisticated in the law in 1963 would not have understood “just compensation” to

include “general effects” damages, the Constitution’s term “just compensation”

does not include such damages. Thus, the majority concludes that the provision in

MCL 213.70(2) precluding general-effects damages does not conflict with the

Constitution and the statute is constitutional. I find the majority’s reasoning to be

deeply flawed because the majority only looks for a pre-1963 case on point, and

when it finds that there is no case on point, it ignores the plain language of the

Constitution and marginalizes other cases interpreting “just compensation.”

In my Silver Creek dissent, I noted the long-established condemnation rule

that “‘[j]ust compensation’ has long been readily and reasonably understood to be

that amount of money that puts the property owner whose property is taken in as

good, but not better, a financial position after the taking as the property owner

enjoyed before the taking.”14 In the instant case, the majority disregards this rule

because this Court had never specifically used it with regard to “general effects”

damages. However, common sense dictates that if compensation for the “general

14
468 Mich at 384-385, citing Britton Trust, 454 Mich at 622; In re
Edward J Jeffries Homes Housing Project, 306 Mich at 650; and In re Widening
of Bagley Ave, 248 Mich at 5.

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effects” damages would serve to place the landowner in the position he or she was

in before the taking, then “general effects” damages would be includable in “just

compensation.” But the majority’s “legal term of art” analysis only looks to the

understanding of those “learned in the law.” It does not look to the “common”

understanding of the people who ratified the Constitution.

Rather than adhere to the majority’s “legal term of art” analysis of “just

compensation,” this Court should return to Michigan’s longstanding rule for

interpreting the Michigan Constitution, as described by Justice Cooley, under

which

[t]he interpretation that should be given [the Constitution] is that
which reasonable minds, the great mass of the people themselves,
would give it. “. . . [T]he intent to be arrived at is that of the people,
and it is not to be supposed that they have looked for any dark or
abstruse meaning in the words employed, but rather that they have
accepted them in the sense most obvious to the common
understanding . . . .”[15]

As I stated in my partial dissent in Silver Creek, 468 Mich at 383, “this Court

should not engage in a method of constitutional construction that unnecessarily

sidesteps the long-established primary rule of constitutional construction.”

Accordingly, I continue to dissent from the majority’s “legal term of art” analysis

of “just compensation.”

15
Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185
NW2d 9 (1971), quoting Cooley, Constitutional Limitations, p 81 (emphasis in
Traverse City).

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 V. CONCLUSION

I dissent from the majority opinion reversing the Court of Appeals

judgment and holding that MCL 213.70(2) is constitutional. I would hold that the

Legislature, by enacting MCL 213.70(2) and imposing limits on what

compensation a property owner could receive upon a partial direct taking, violated

the Michigan Constitution’s guarantee of just compensation for property taken by

the government, because the proper process for determining the amount of just

compensation is left to a trier of fact. Accordingly, I would affirm the Court of

Appeals judgment remanding the case to the trial court.

Furthermore, I dissent with regard to the majority’s constitutional analysis

of the term “just compensation,” because the majority’s interpretation of “just

compensation” as a legal term of art creates a circular analysis that abrogates the

common understanding of just compensation before this Court’s first analysis of

“just compensation” as a legal term of art in Silver Creek.

Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly

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