The case law from this Court relevant to the common-understanding question will be dealt with in chronological order. All of this case law was decided before 1963. There is a clear pattern that Michigan construes its just compensation provision liberally. Further, it has long been the case that where there is a partial taking, the owner is entitled to the full market difference between the value of the entire property before the taking and the market value of the remainder after the taking. This includes considerations of how the taken property will or might be used.

There are also some instances where a landowner received full market value damages where there was not at least a partial taking, implying that Spiek might need to be re-examined.

Justice Cooley authored Pontiac v Carter, 32 Mich 164 (1875). In this case, the grade to a street was altered. This point is not entirely clear in the Pontiac v Carter opinion itself, but was discussed two years later in Ashley v Port Huron, 35 Mich 296 (1877), wherein this Court, in another opinion by Justice Cooley, described Pontiac v Carter as "a case of an incidental injury to property caused by the grading of a street." Ashley, 35 Mich at 297. This Court explained:

The plaintiff’s premises were in no way invaded, but they were rendered less valuable by the grading, and there was this peculiar hardship in the case, that the injury was mainly or wholly owing to the fact that the plaintiff’s dwelling had been erected with reference to a grade previously established and now changed.

Id.

In Pontiac v Carter, Justice Cooley discussed damages. He clearly indicated that diminution in value is a proper claim when land is first taken:

Highways, * * when rightfully laid out, are to be considered as purchased by the public of him who owned the soil, and by the purchase the right is acquired of doing everything with the soil over which the passage goes which may render it safe and convenient; and he who sells may claim damages not only on account of the value of the land taken, but for the diminution of the value of the adjoining lots, calculating upon the future probable reduction or elevation of the street or road; and all this is a proper subject for the inquiry of those who are authorized to lay out, or of a jury, if the parties should demand one.

Carter, 32 Mich at 166 (emphasis added). Thus, where land was taken for a road, Justice Cooley believed that diminution-in-value claims were proper not only for current uses, but potential future uses.

Justice Cooley also authored Grand Rapids & Indiana RR Co v Heisel, 38 Mich 62 (1878). In Heisel, the plaintiff landowner sought compensation where a street in front of her home was occupied by a railroad track. She claimed "special damages… for the discomfort occasioned by the smoke, dust, noise, etc., from the engines and carriages." Id. at 64. The landowner contended that the operation of the railroad made the "neighborhood unhealthy and unpleasant." Id. (emphasis added). She also claimed that "the market value of her premises was greatly decreased in consequence of the use of the street by the railroad company." Id. (emphasis added).

In deciding whether the landowner was entitled to damages, Justice Cooley considered it critical whether a portion of plaintiff’s property had been taken. He stated that when an abutting owner does not have a property interest in the street, "the mere laying of the track in the street ... is no wrong to [the owner] whatever." Id. at 69. Such an owner may bring a nuisance claim, but not a takings claim:

But other principles must be applied when the abutting owner is not the owner of the soil in the street. In that case his freehold is not appropriated, and the mere laying of the track in the street — in the absence of any statute giving him redress therefore — is no wrong to him whatever. He is not wronged until the use of a street becomes a nuisance to him, or specially incommodes him in the enjoyment of the public easement. He is entitled to no assessment of damages, because none of his land is taken, and he has no action at the common law unless upon such grounds as would enable one land proprietor to sue an adjoining proprietor for failing to observe the maxim that every one must so use his own property as not unreasonably to incommode his neighbor.

Id. at 69-70. A diminution-in-value claim where no land is taken is damnum absque injuria. Id. at 71. Justice Cooley concluded, "It is clear therefore, that the principles governing the recovery must be quite different when the plaintiff’s freehold is appropriated and when it is not." Id. at 72. Because plaintiff’s freehold did not extend to the street, her damages claim was reversed. Thus, Justice Cooley considered the damnum-absque-injuria concept limited to situations where there was no partial taking. But where a physical portion of an estate was taken, the landowner was entitled to diminution-in-value damages for the remainder of the estate. In determining those damages, the current use and potential future uses to which the taken property would have been put could be considered.

The Heisel taking came before this Court a second time. Grand Rapids & Indiana RR Co v Heisel, 47 Mich 393 (1882). On remand, the trial judge had been "instructed to give no damages for permanent diminution of value." Id. at 400. But because of the manner in which the railroad obtained the railway,[14] plaintiff was still allowed to bring suit on different grounds. In deciding the case, this Court, via Justice Campbell, discussed some general rules governing damages:

It need hardly be said that nothing can be fairly termed compensation which does not put the party injured in as good a condition as he would have been in if the injury had not occurred. Nothing short of this is adequate compensation. In the case of land actually taken, it includes its value, or the amount to which the value of the property from which it is taken is depreciated.… In cases where damage is by injury aside from actual taking of property, the rule has been to make the party whole as nearly as practicable, and where it affected the rental value or enjoyment the same principle has been applied as in other cases. There is no reason and so far as we can discover no law which allows the wrong-doer to cast any portion of an actual and appreciable loss on the party whom he injures.

Id. at 398-99 (emphasis added).

In Port Huron & South-Western Ry Co v Voorheis, 50 Mich 506 (1883), this Court held that the commissioners[15] erred by considering only the damage caused by a taking to a portion of a landowner’s property and not considering the effect on the remainder. The landowner owned six contiguous lots numbered 4, 5, 6, 13, 14, and 15. His home was situated on lots 4 and 5. Id. at 508-09. The land that was condemned was a forty-foot strip of lot 15. Id. at 509.

The railway contended, "[T]he compensation or damages to be awarded should be confined to the value of the land taken from, and injury to, that lot." Id. The landowner argued, "[T]he running of cars on the proposed right of way in so near proximity to his buildings would cause great, permanent and continually increasing injury and damage to the entire homestead." Id. According to this Court, he contended:

[H]e is not limited in damages to that lot, but the land taken being part of his homestead, and used and occupied by him as such, he was entitled not only to compensation for the land taken but also for such other actual damages to his homestead as he sustained by reason of the taking, and necessarily arising from the use to be made of the parcel taken.

Id. at 509-10. This Court held that the landowner was entitled to compensation for the loss in value of the remainder of the homestead. Id. at 510. It is somewhat unclear whether this Court viewed this result as mandated by the Michigan Constitution. There was a passing reference to a statute, id. at 510, but later language in the opinion, including a reference to "just compensation," implies a constitutional holding:

We cannot avoid the conclusion that no compensation or damages were allowed the respondent by the commissioners for the injury done to any portion of this homestead, except to lot 15, and that the same was not considered by them in making their award. The respondent cannot be compelled to give up his property without full compensation for his injury, and we are satisfied, through a misapprehension of the law on the part of the commissioners just compensation for the land taken and damages to the owner has not been made.

Id. at 513.

In Barnes v Michigan Air Line Ry, 65 Mich 251 (1887), this Court was faced with a landowner who sought continuing compensation for injuries from modifications to a railroad built on property that had already been condemned. This Court denied that claim and noted, "[I]t is the business of the jury to compensate the owner for what his landed interest will suffer from the use proposed to be made of it by the railroad company." Id. at 253 (emphasis added). Once that compensation had been paid, no further compensation was possible. Nevertheless, this Court clearly indicated that when property is first taken, a jury could consider the uses to which land taken would be put in assessing damages to the owner’s entire "landed interest."

In Schneider v Detroit, 72 Mich 240 (1888), the plaintiff had previously lost sixteen feet from two of his lots for a street. A bridge over a nearby railroad track was later built on this street, and that bridge obstructed the plaintiff’s view.

The plaintiff sought damages related to the construction of the bridge. The trial court held that the plaintiff was entitled to the diminution in value of his lots. This Court agreed and held, "[T]he city is liable to him for the injury for which he has complained in damages," even though construction of the bridge did not require the taking of any more of his lots. Id. at 248. Thus, in this case, this Court allowed a diminution-in-value claim where there was not even a partial taking. This case is contrary to Spiek.

In Grand Rapids, Lansing & Detroit RR Co v Chesebro, 74 Mich 466 (1889), this Court discussed damages in a partial-takings case. The property owner had forty acres, and a railroad sought a right-of-way over four of them. This Court held that mere payment for the value of the four acres was insufficient:

An owner has a right to be indemnified for anything that he may have lost.... [A]nd the mere taking of four acres for a right of way could not be regarded, in any sensible point of view, as compensated by one-tenth of the value of the forty acres, taking acre for acre. The damages in such a case must be such as to fully make good all that results, directly or indirectly, to the injury of the owners in the whole premises and interests affected, and not merely the strip taken.

Id. at 474 (emphasis added).

In Pearsall v Eaton Co Bd of Supervisors, 74 Mich 558 (1889), a road bisecting the owner’s property was vacated, leaving her without highway access. This Court discussed what constitutes a taking leading to damages and stated:

[T]he term "taking" should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only; but it should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto.

Id. at 561. This implies that diminution-in-value claims should be allowed even when there is not a partial taking, which is contrary to Spiek.

In Detroit v Moesta, 91 Mich 149 (1892), this Court considered the proper damages where there was a partial taking for the widening of a boulevard. The trial court had instructed the jury that the plaintiffs "were entitled to compensation for the value of the land to be taken, for the diminution in value of the piece remaining, and [the trial court] was asked [and refused] to charge that [plaintiffs] were likewise entitled to recover for the loss of profits arising from the loss of business." Id. at 154. This Court held that the failure to instruct on business-interruption damages was grounds for reversal. But it did not find the diminution-in-value instruction to be erroneous.

In Detroit v Chicago, Detroit & Canada Grand Trunk Junction RR Co, 91 Mich 291 (1892), this Court held that a railroad was entitled to diminution-in-value damages when a portion of its property was taken for a crossing. In particular, the railroad claimed that a warehouse near the taken crossing lost value, and this Court held that question should have been submitted to the jury. Id. at 292-93.

In Buhl v Fort Street Union Depot Co, 98 Mich 596 (1894), the plaintiff sought compensation for the closing of a street. The plaintiff’s property did not abut the portion of the street that was closed, and he still had ingress and egress to his property. This court indicated that it would allow some abutting owners a cause of action, but would not allow a cause of action for those whose property did not abut the vacated street:

A distinction may well be held to exist between the injury which results to an abutting owner, or another so situated that the means of ingress and egress to and from his premises are cut off by a discontinuance of a street, and one owning land upon another street or on the same street at a distance from the part of the highway discontinued.

Id. at 604. The injury that the plaintiff suffered here "is one which he suffers in common with the general public, and damnum absque injuria." Id. at 607 (Latin phrase not italicized in original).

In Phelps v Detroit, 120 Mich 447 (1899), this Court held that a landowner could recover damages from the construction of a bridge over some railroad tracks, even though there was no partial taking: "and in such cases, where damage is by injury aside from actual taking of property, the rule is to make the party whole as far as practicable." Id. at 451. Thus, this case is contrary to this Court’s later holding in Spiek.

In Tomaszewski v Palmer Bee Co, 223 Mich 565 (1923), plaintiffs sought to challenge the vacation of a street despite none of them owning property that abutted the street in question. This court clarified that the plaintiffs did not have a property interest at stake. Id. at 569. Where ingress and egress are not cut off, but only rendered less convenient,
"[S]uch consequence is damnum absque injuria." Id. at 570 (Latin phrase not italicized in original).

In In re Rogers, 243 Mich 517 (1928), this Court indicated, "The landowner [in a takings case] must yield to public necessity, but is entitled to just compensation, and this means no sacrifice." Id. at 526 (emphasis added).

In Fitzsimons & Galvin, Inc, v Rogers, 243 Mich 649 (1928), this Court discussed the constitutional requirements of just compensation and stated: "Adequate compensation is such only as [it] puts the injured party in as good condition as he would have been in if the injury had not been inflicted. It includes the value of the land, or the amount to which the value of the property from which it is taken is depreciated. [G R & I Ry Co v Heisel, 47 Mich 393 (1882)]." 243 Mich at 664.

In Johnstone v Detroit G H & M Ry Co, 245 Mich 65 (1928), this Court allowed a takings claims from property owners whose lots did not abut property taken for a highway right-of-way and were at least sixty-six feet from the right-of-way. This right-of-way ran through a subdivision wherein the property owners all had mutual building restrictions limiting the manner in which the lots could be used. Id. at 69. This Court defined the question presented:

The principal question is whether, because of the proposed violation of the restrictions, the state must pay compensation to the owners of other lots in the subdivision, whose land is not actually and physically taken, under our Constitution, art. 13, § 1, which prohibits the taking of private property for public use without just compensation therefor.

Id.

This Court indicated that ensuring proper damages for takings is necessary before individual citizens will confidently improve their property:

Nor is there anything in our laws, system of government, or the spirit of our institutions which curtails the genius of a citizen in creating or enhancing values in his property in any lawful way, by physical improvement, psychological inducement, contract, or otherwise. His obligation to recognize the power of eminent domain and the possibility of its exercise in no wise restricts his right to legitimate profit. He may view the power in its constitutional entirety, with its comitant requisite of just compensation, and order his affairs within the law with assurance that, if the state takes his property it will pay him the value of what it takes, of whatever that value may consist, so it is measured by the market. Anything less is confiscation.

Id. at 74-75.

This Court then discussed the proper measure of damages:

It is the rule that, where the whole of land is taken, the compensation to be made is the fair value of the land. Where only part of a parcel is taken, just compensation is not measured by proportionate acreage but by the amount to which the value of the property from which it is taken is diminished. Grand Rapids & Indiana R Co v Heisel, 47 Mich 393 (1882). The value of the part actually taken is allowed as direct compensation; but the decreased value of the residue of the parcel, on account of the use made of the land taken, is also allowable as compensation, even though it is strictly consequential damage in nature.

Id. at 81 (emphasis added). And this Court concluded:

It is therefore held that owners of property in a subdivision in which, under a general plan, the property is restricted to specified uses, and in which the restrictions are valid, subsisting, and enforceable against the lands in the hands of private owners, are entitled to compensation upon the taking of any part of such subdivision for public use in violation of such restrictions; that, aside from nominal damages for destruction of the easement, the compensation is measured by the actual diminution in value of the premises of such owner as a result of the use to which the property taken is put, and that, in determining such diminution, the effect, by way of benefit as well as by way of injury, of such use is to be taken into account.

Id. at 84-85 (emphasis added). This case may be in tension with Spiek, since compensation was provided to the landowners even though no portion of their land was taken.

In In re Bagley Avenue in City of Detroit, 248 Mich 1 (1929), this Court discussed the proper measure of damages in the context of the widening of a road:

In the case of land actually taken, just compensation awards its value, or the amount which the value of the property from which it is taken is depreciated. Grand Rapids & Indiana RR Co v Heisel, 47 Mich 393(1882). Where the whole of a parcel of land is taken, the compensation to be made is the fair value of the land so taken. Where only part of a parcel is taken, just compensation is to be determined by the amount which the value of the parcel from which it is taken is diminished. The value of the part actually taken is allowed as direct compensation, but the decreased value of the residue or parcel on account of the use made of the land taken is also allowable as compensation. Port Huron & South Western Ry Co v Voorheis, 50 Mich 506 (1883); Fitzsimmons & Galvin, Inc, v Rogers, 243 Mich 649 (1928); Johnstone v Detroit, G H & M Ry Co, 245 Mich 65 (1928).

Id. at 5 (emphasis added).

In Grand Rapids v Barth, 248 Mich 13 (1929), Grand Rapids condemned a sixteen-foot-wide strip of land along a street to broaden the street. The trial court instructed the jury, "As regards the land taken, therefore ... you will award to the owners the fair market value of the 16 feet proposed to be taken, and if the value of the remainder of the property is decreased by reason of cutting off the 16 feet, also whatever you may find to be the decrease in the value." Id. at 18. This Court held that the instruction was proper. It discussed the proper method of determining just compensation in partial-takings cases:

The rule for compensation has been announced by this court as follows: ‘Where only a part of a parcel is taken, just compensation is not measured by proportionate acreage but by the amount to which the value of the property from which it is taken is diminished.’ Johnstone v Detroit, etc, R Co, 245 Mich 65 (1928).

‘Adequate compensation is such only as puts the injured party in as good condition as he would have been in if the injury had not been inflicted. It includes the value of the land, or the amount to which the value of the land from which it is taken is depreciated.’ Fitzsimmons & Galvin Inc v Rogers, 243 Mich 649 (1928).

Id. at 20.

In In re Widening of Michigan Avenue, 280 Mich 539 (1937), this Court discussed partial takings and indicated that diminution in value related to the use to which the taken property would be put is a proper measure of damages:

Where only part of a parcel is taken, just compensation is to be determined by the amount which the value of the parcel from which it is taken is diminished. The value of the part actually taken is allowed as direct compensation, but the decreased value of the residue of the parcel on account of the use made of the land taken is also allowable as compensation. Port Huron, etc, R Co v Voorheis, 50 Mich 506 (1883); Fitzsimons & Galvin, Inc, v Rogers, 243 Mich 649 (1928); Johnstone v Detroit, etc, R Co, 245 Mich 65 (1928), 67 ALR 373; In re Widening of Bagley Avenue, 248 Mich 1 (1929).

Id. at 548 (emphasis added).

In Case v Saginaw, 291 Mich 130 (1939), the plaintiffs owned businesses on a street where a railroad viaduct over the Saginaw River was going to be built. They alleged that the construction of the viaduct would "substantially impair the value of their properties and result in great damage to them." Id. at 134. This Court held that because plaintiffs did not have a property interest in the street, the damage they suffered was not a taking.

In In re Gratiot Avenue, 294 Mich 569 (1940), this Court discussed its general interpretive rule regarding the just compensation clause: "This provision has been given a liberal interpretation in this state. ‘Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred.’ " In re Gratiot Ave, 294 Mich at 573 (citing In re Bagley Ave, 248 Mich 1 (1929), and emphasis added).

In In re Ziegler, 326 Mich 183 (1949), this Court departed from, but did not discuss, the longstanding precedent established in the cases discussed above. The state had acquired 1.15 acres of the Buschs’ seventeen-acre farm to widen highway M-119, and 870 feet of the Busch farm fronted the eastern portion of the highway. Id. at 185. The landowners’ home was in the southwest corner of their lot and just three feet from the state’s pre-existing right-of-way. They maintained a shade tree and a lawn on that right-of-way.

The condemnation involved a 745-foot-by-67-foot strip of their lot. This strip was along M-119 north of their house. The Buschs’ neighbor to the south also had some property taken for the highway. As a result, the Buschs’ home was surrounded on three sides by state property.

Three court-appointed commissioners awarded the landowners $2,500 in damages. The Buschs had sought compensation for the strip taken, the shade tree and lawn, and the fact that their neighbors’ land to the south was going to be taken. Id. at 186. After the trial, affidavits of the commissioners indicated that damages were given for all three reasons.

This Court first held that the landowners had no property right in the right-of-way and that the landowners were due no compensation for either the tree or the lawn. This Court also held that plaintiffs could not recover due to their neighbor’s taking:

The defendants had no property rights in the land adjoining their farm on the sough [sic]. The consequential damage inflicted by the taking of a portion of the neighbor’s realty was clearly separable from that occasioned by the loss of the strip of their own tract. Had the road improvement project ended at the south boundary of defendants’ farm, they could not have obtained redress for the depreciation in the value of their realty due to the proximity of the highway to the house. It was only for the taking of a part of their own land that they would be entitled to receive just compensation for the damage to the remainder, and the extent of recovery may not be thereby enlarged so as to include items otherwise not compensable. Campbell v United States, 266 US 368 (1924). The general rule applied when part 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.

Id. at 188-89.

In Ziegler, this Court cited the federal case Campbell v United States, 266 US 368 (1924),[16] as support and did not discuss the long line of Michigan cases allowing for diminution-in-value damages where a partial taking occurred.

In In re Slum Clearance, 332 Mich 485 (1952), this Court considered the costs of moving an electrolytic-plating business from a neighborhood that had been condemned for blight. This business involved numerous chemicals that would have to be specially transported. The question presented was whether the condemning authority was going to have to pay to move "chemical solutions and molten metal." Id. at 490. This Court noted that the just-compensation clause has been given a "liberal interpretation in this state." Id. at 491 (citation omitted). But this Court noted a couple of recent decisions had denied "consequential damages" (which in other cases could include compensation for the full diminution in market value traceable to the taking):

While so-called consequential damages are allowable under some circumstances, In re Widening of Bagley Avenue, 248 Mich 1 (1929); In re Widening of Michigan Avenue, 280 Mich 539 (1937); In re Widening of Michigan Avenue, 298 Mich 614 (1941), it does not necessarily follow that such damages are invariably allowable under all conditions in the taking of private property for public use. See In re Petition of State Highway Commissioner, 326 Mich 183 (1949); [In re Slum Clearance, 331 Mich 714 (1951)].

Id. at 492-93.

In In re John C Lodge Highway, 340 Mich 254 (1954), this Court held that a condemning authority must pay lessees the costs of removing trade fixtures from condemned property. This Court held that the term "just compensation" has been given a liberal construction in this state. Id. at 262. Further, this Court stated, "Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred." Id. (citing In re Bagley Avenue, 248 Mich 1, 5 (1929)).

In In re Ziegler, 357 Mich 20 (1959), MDOT condemned a strip of a five-acre property owned by a business. The company sought damages to the land and buildings, business-interruption damages, and the cost of relocating machinery and equipment. In discussing the damage to the land, this Court indicated that the diminution in value was the proper damages remedy and that the use to which the taken land would be put could be considered. Id. at 27. This Court indicated that it has consistently sought to make landowners whole:

This Court has repeatedly construed what is meant by the words ‘just compensation’ and has steadfastly held to the holdings in [In re Rogers, 243 Mich 517 (1928)], that while, in condemnation proceedings, the landowner must yield to public necessity, he should receive just compensation and that this means at no sacrifice, and in [In re Bagley Avenue, 248 Mich 1 (1929)], ‘Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred.’

Id. at 28. This Court also allowed the business-interruption and relocation claims, which is another indication of this Court’s generally liberal construction of the just compensation provision.

There is a strong line of cases extending nearly a century before the adoption of art 10, § 2, indicating that just compensation is to be liberally construed. Particularly where a partial taking has occurred, an owner is entitled to the full diminution in property value, including losses due to the use to which the taken property will be put.


[14] This Court indicated that the railroad may not have followed the proper procedures to occupy the street, and thus it allowed the damages award to stand as a remedy for some sort of tort.

[15] In some instances, it used to be proper to have court-appointed commissioners, rather than a jury, determine just compensation.

[16] Again, Campbell will be discussed below.