
    The Mansfield, Coldwater & Lake Michigan Railroad Company v. Orsamus B. Clark.
    
      Petition to acquire lands for railroad purposes: Description of premises. A petition Ry a railroad company to acquire title, for railroad purposes, to lands used and occupied as a street, wRicR does not disclose wRetRer said lands are designed to Re appropriated as tRe property of tRe respondent, or wRetRer tRey were included in tRe petition for tRe purpose of Raving an assessment of tRe respondent’s damages Ry reason of Ris ownersRip of premises fronting on tRe street, is fatally defective.
    
      Deport of jury: Title to lands sought to be condemned for railroad. An award of a jury in sucR case, wRicR discloses tRat tRe jury assessed tRe damages wRicR tRey tRougRt tRe respondent entitled to on account of Ris “claiming” to own certain land, used and occupied as a street, witRout determining wRetRer in fact Re did own it, and from wRicR it does not appear wRetRer tRe damages awarded were tRe estimated value of tRe land or only tRat of some douRtful claim tRey supposed Rim to Re setting up, cannot Re sustained.
    
      What not a finding of necessity of tahing for public use. A finding in tRe verdict ' of a jury in sucR case tRat “ it is necessary tRat said real estate and property sRould Re taken for tRe purposes of said company,” is not sucR a finding of tRe necessity for tRe taking of said property for tRe puRlic use, eitker in form or suRstance, as is required Ry tRe constitution. — Article XVIII., § 2.
    
      Dequisites of report of jury as to public use. TRe report of tRe jury or commissioners, in sucR cases, must distinctly find tRat tRe taking is necessary for tRe puRlic use and Renefit; and to make sucR a report tRey must Re satisfied not only tRat tRe particular land is needed for tRe construction of tRe work, Rut also tRat tRe work itself is one of puRlic importance.
    
      Qualifications ofjwrors: Freeholders. WRere tRe claimant was present at IRe impaneling of tRe jury, and no cfiallenge was interposed, tRe oRjection to tRe confirmation of tRe report of tRe jury, tRat tRe jurors are not affirmatively shown to be freeholders, in the absence of any showing that any of them were disqualified, is not well taken.
    
      Proper course to summon jury of particular qualification. The proper course, when a jury is required of persons possessing a particular qualification, is for the order of the court to direct the summoning of such persons.
    
      Heard October 14.
    
    
      Decided October 24.
    
    Appeal from Branch Circuit.
    This was a petition by the railroad company, against Orsamus B. Clark, to acquire title to certain lands. The description of the premises, required to be taken, in said petition, is as follows, viz:
    “That the following real estate and property in said county is required by your petitioner for the purpose of constructing and operating its said proposed road, to wit: That part of the first three lots lying on the north side of Bailroad street, and next east of Division street, in the city of Cold-water, in said county of Branch, which is within one rod of the center line of said railroad, as surveyed, located and staked across the same, said center line entering the same on the east line of Division street, at a point which is one hundred and fifty-three feet northerly of the center of the Lake Shore & Michigan Southern railroad track, at a point where the east line of Division street crosses; thence south seventy-five degrees thirty-eight minutes east, four hundred and sixty and one-half feet to the north line of the said Lake Shore & Michigan Southern railroad company’s right of way as now fenced, but the last two hundred and twenty-two and one half feet mentioned is. used and occupied as a public highway called Bailroad street aforesaid, said strip of land containing eighteen one-hundredths of an acre, excluding that part thereof used for Bailroad street aforesaid, and belongs to Orsamus B. Clark, of the city of Coldwater aforesaid.”
    The report of the jury was as follows, viz:
    “We, the undersigned jury, struck and summoned under and by virtue of .an order of said court, made tbe 12 th day of August, A. D. 1871, to ascertain and determine the necessity of said company’s taking and using, for the purpose of constructing, operating and maintaining their railroad, the following described real estate and property, to wit: That part of the first three lots lying on the north side of Railroad street, and next east of Division street, in the city of Coldwater, in said county of Branch, which is within one rod of the center line of said railroad, as surveyed, located and staked across the same, said center line entering the same on the east line of Division street, at a point which is one hundred and fifty-three feet northerly of the center of thd Lake Shore & Michigan Southern railroad took at a point where the east line of Division street crosses; thence south seventy-five degrees thirty-eight minutes east, four hundred and sixty and one-half feet to the north line of the said Lake Shore & Michigan Southern railroad company’s right of way as now fenced; but the last two hundred and twenty-two and one-half feet mentioned is used and occupied as a public highway called Railroad street afofesaid.
    “ The amount of land embraced in said description, and to which title is sought to be acquired is (excluding Railroad street) eighteen one-hundredths acres, said premises being owned by Orsamus B. Clark aforesaid, of Branch county, in the state of Michigan. The said Orsamus B. Clark also claimed before us to own that portion of said strip of land, two hundred and twenty-two and one-fourth feet in length, which is used and occupied as Railroad street aforesaid, and we have included in our award (below) the damages and compensation he is entitled to for the same being taken and used for the purpose aforesaid, and to ascertain and determine the damages and compensation to be allowed therefor, respectfully report:
    “That we met at the time and place appointed therefor by the court, and after having taken and subscribed the oath required by law, and all of the jury being present and acting together during the proceedings, and under charge of the officer appointed for that purpose, we viewed said real estate and property above described, and after hearing thn allegations and proofs of the parties, and having taken and reduced the testimony to writing (minutes of which are hereto annexed), we deem that it is necessary that said real estate and property should be taken for the purposes of said company, and we do ascertain and determine the damages and compensation which ought justly to be made by said company, on account of such taking and use of the same for the purpose of constructing and operating their railroad, to the owners of, and persons interested in, said real estate and property, to be as follows:
    “We award to Orsamus B. Clark the sum of one hundred and ten dollars and forty cents.
    “Done this 18th day of August, 187Í, in the city of Cold water, state of Michigan.”
    The respondent brought the matter to this court by appeal.
    
      John B. Shipman, for the petitioner.
    
      E. C?. Fuller and Ashley Pond, for the respondent.
   Cooley, J.

The difficulty with the description in the petition in this case, is that we are unable to determine from it whether that portion of the land described as being used and occupied as Railroad street was designed to be appropriated as Clark’s property or not. The manner in which it is referred to would rather lead to the inference that it was included in the petition, not because it was Clark’s property, but in order that his damages by reason of his ownership of premises fronting on the street might be assessed. . But if this were the purpose, the petition would be defective in not showing that he owns any such premises. The jury appear not to have fully understood the matter, but inasmuch as Clark “claimed” to own this piece of land, they assessed the damages they-thought him entitled to; but whether they gave the value of the land, or only the value of some doubtful claim they supposed him to be setting-up, we are not informed. It is not “claims” which are to be appropriated under the statute, but lands; and a party might be seriously wronged if his freehold might be taken on an award by the jury of a mere nominal compensation, because of their want of faith in the validity of his title. Questions of title to the land appropriated are not to be determined by this jury, but may come up in a proceeding to settle the right to the money awarded.

We think also that the verdict of the jury is defective in that it does not find the necessity for the taking of this property for the public use. What they say is that “ it is necessary that said real estate and property should be taken for the purposes of said company.” This is not the finding required by the constitution, either in form or substance. If the routes for railroads were prescribed by the legislature, the public necessity for their construction, and for the taking of the necessary land for the purpose, would be thereby determined; but when the associated projectors may select their own line, it is obviously possible that the company may have purposes in -which the public have no interest whatever. Indeed it is quite possible for a railroad to be as much a private way as any other, if the shortness of the line and the interests that can be accommodated by it are such only as preclude its supplying a public need. In such a case it was never contemplated by the constitution that land ■should be taken against the will of the owner, on a claim ■of public interest, 'for a road in which the public had no •concern." It would be contrary to the first principles of right to permit any seven or other number of men to lay out a road wherever they might choose, and then to appropriate lands for its purposes, without any finding by a disinterested tribunal that the road was needed.

The constitution provides that “when private property is taken for the use or benefit of the public, the necessity for using such property * * shall be determined by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record as shall be prescribed by law.” — Art. XVIII., § 2. Under this provision no use can be deemed public upon amere assumption by interested parties that it is so; and a finding that the taking is needful to the proposed enterprise is not the same as a finding that it is for the use or benefit of the public. The report of the jury or commissioners must distinctly cover this point in every case; and they cannot properly make one which will warrant the taking of the land, unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance. — See Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y., 137.

The objection to the confirmation of the report, that the jurors are not affirmatively shown to be freeholders, is not well taken. No challenge was interposed, nor has there been any showing that any of the jurors were disqualified. On the contrary, the claimant expressed himself satisfied with the jury when they were impaneled. The case of Peninsular R. R. Co. v. Howard, 20 Mich., 18, is not in point, for in that some of the persons summoned were shown to be disqualified, and the objection was taken as soon as the party became aware of the facts. Had there been no appearance of the claimant, or no facts operating as a waiver, the case would have been different. The proper course, however, when a jury is required of persons possessing a particular qualification, is for the order to direct the summoning of such persons. This is only an ordinary application of the general and very just rule, that in proceedings to take the property of the citizen against his will, all the conditions to the taking which have been prescribed by the law must affirmatively appear to have existed. —People v. Highway Comr’s of Nankin, 14 Mich., 528.

Although it was not necessary to a decision that we should do so, we have considered the whole case presented by this record, because of the frequency of these assessments, and the great public and private interests involved. The proceedings under review being void for want of a proper petition, they will be set aside, with costs.

Campbell, Oh. J., and Christiancy, J., concurred.

Graves, J., did not sit in this case.  