STATE HIGHWAY COMMISSIONER
v.
HAHN.
Calendar No. 22, Docket No. 51,605.
Supreme Court of Michigan.
Decided February 17, 1968.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Louis J. Caruso, Assistant Attorney General, and Thomas D. Stone, Special Assistant Attorney General, for plaintiff.
Robert D. Mandenberg, for defendants.
SOURIS, J.
Article 10, § 2, Constitution of 1963 provides that private property shall not be taken for public use without just compensation therefor. CL 1948, § 213.171 (Stat Ann 1958 Rev § 8.171) authorizes the State highway commissioner to take, by exercise of the power of eminent domain, certain private property for public use, including "gravel, rock, sand, dirt and any and all other materials that may be needed for the proper construction, improvement or maintenance of a highway."
In 1963, acting pursuant to the cited statute, the highway commissioner asserted the right to enter upon 12-1/2 acres of the 23-acre Arthur Hahn farm in Alpena county; to occupy it with machinery and *117 equipment; and to remove therefrom rock, sand, gravel, and earth in any quantity for highway construction purposes. The commissioner and the owners were unable to agree upon a mutually satisfactory price and condemnation proceedings were commenced.
Ultimately, after determination of necessity, occupation of the land and actual taking of sand therefrom, the Honorable Philip J. Glennie, Alpena county circuit judge, confirmed a report by commissioners appointed to determine the compensation to be paid the Hahns. The commissioners determined that the Hahns were entitled to receive compensation for the sand taken, valued as is and in place, and for the public's temporary use of the land. On appeal by the State highway commission to the Court of Appeals, that Court affirmed. 4 Mich. App. 225. The issue presented by this appeal, on our grant of leave (378 Mich. 743), is whether compensation payable to the Hahns should be limited to the difference between the value of the land affected before the taking of minerals therefrom and its value after the taking, or whether compensation should be determined by the value of the minerals taken, determined as is and in place.
In State Highway Commissioner v. Fegin (1966), 2 Mich. App. 698, the facts of which are remarkably similar to those of this case of Hahn,[*] the Court of Appeals decided that if the right to remove minerals is condemned, as was done here, the value of the minerals in place determines the compensation which must be paid the owner. We approve and expressly adopt the conclusion of the Court of Appeals in Fegin and the reasoning on which it is based.
*118 Fegin did not decide whether in such cases the owner would be entitled, as well, to receive compensation for the public's temporary occupancy of his land for the purpose of removing minerals and for any consequential damages thereto. While the commissioners in the case at bar awarded the Hahns compensation for the State's temporary occupancy of their land, in addition to compensation for the minerals removed, no issue with reference thereto was presented to this Court for decision.
Affirmed. Appellees may tax their costs.
DETHMERS, C.J., and KELLY, BLACK, T.M. KAVANAGH, O'HARA, ADAMS, and BRENNAN, JJ., concurred with SOURIS, J.
BRENNAN, J. (concurring).
I concur with Justice SOURIS because as I read the statute, the highway department is not permitted to condemn the fee for the purpose of acquiring the right to take borrow from the land. I do not, however, think this case should pass through our Court without some comment being made upon this unfortunate statutory loophole. Mr. Hahn is getting something in excess of $10,000 for a farm which is worth less than $2,300, and he still gets to keep the farm, though admittedly it is not of much value anymore. Any schoolboy can see that such a state of law is most undesirable, not only because it represents an utter waste of tax dollars, but also because it represents the kind of windfall which can stir the dormant larceny in all but the most noble breast. So long as goodies like this flow from the highway department's cornucopia, it can be expected that competition among prospective condemnees will be keen. And the decision as to which farmer will receive the bonanza will not be made in a vacuum.
NOTES
[*] See, also, State Highway Commissioner v. Green (1967), 5 Mich. App. 583.