Defendant in 1930 constructed sewers and water mains across properties owned by the respective plaintiffs and continues to maintain these municipal structures. Defendant has not obtained from plaintiffs title to the portions of their respective properties occupied by these sewers and water mains either by grant or condemnation, nor has it by any other means obtained the right to construct or maintain these sewers or water mains on plaintiffs' lands. Instead, without legal right defendant has imposed a servitude on each of these parcels. Plaintiffs' suits primarily are for recovery of alleged resultant damages for which they have not been compensated. Clearly for such damages as they may show they have sustained, if any, they are entitled to compensatory damages. But the trial court instructed the jury to assess these damages on the theory that the city had taken and acquired title to a portion of the land of each plaintiff. In part his instruction reads: *Page 653
"Where only a part of a parcel of land is taken, as is the case here, just compensation is to be determined by the amount which the value of the parcel from which it is taken is to be diminished."
This was error because the measure of damages was the depreciation, if any, in the value of the respective parcels caused by defendant having unlawfully imposed the servitude thereon.
Upon trial before a jury plaintiffs (except in the Orr Case) were permitted to have further recovery of damages on the theory that after the construction of these sewers and water mains their respective properties were assessed at excessive valuations which resulted in the payment of larger amounts of taxes than plaintiffs should have been required to pay. This was error. The taxes were paid without protest, and are not recoverable in a proceeding of this character. If plaintiffs suffered a wrong in this particular, the remedy is provided in the tax statute.
The judgments entered in the circuit court are reversed and new trials ordered in the respective cases. Costs to appellant.
BUTZEL, C.J., and WIEST, BUSHNELL, POTTER, CHANDLER, and McALLISTER, JJ., concurred with NORTH, J.