4. The instant case at the Court of Appeals

The Court of Appeals distinguished Spiek from the instant case primarily by observing that this case involved a physical invasion. The court then held that under Michigan law, whenever there is a physical taking, the landowner is entitled to full compensation for the portion taken and damage inflicted on the remaining estate. Tomkins, 270 Mich App at 158-59. In other words, the court argued that a landowner should receive full market value for his or her loss.

The Court of Appeals explained:

In a partial taking case, considerations that will affect the price that a willing buyer would offer for the land include any changes in utility or desirability of what is left after the taking, which is logically dependent on the use intended for the property acquired by the government and the related effects of that use on the owner’s remaining property. Stated in another way, in a partial taking case the only way to fulfill the objective of just compensation for reductions in the value of the remainder parcel is to determine the damages traceable to the creation of the project for which the land was condemned.

Id. at 166-67 (footnotes omitted).

The Court of Appeals did note that the United States Supreme Court had held that generally no compensation is due under the federal Fifth Amendment for the diminution in value to the remaining estate in partial-takings cases. Id. at 167 (citing Campbell v United States, 266 US 368 (1924)). The Court of Appeals remanded this case to the trial court to resolve a factual issue that would determine whether this case presented an exception to the general rule that no compensation is due for a diminution of value. Tomkins, 270 Mich App at 170.