a. Justice Cooley’s scholarly writings

In Hathcock, this Court paid particular attention to the views expressed by Justice Cooley, who was described as Michigan’s "patron saint of constitutional interpretation." 471 Mich at 469 n. 48.[8] Writing between the 1850 and 1908 constitutions, Justice Cooley discussed takings at length in his treatise Constitutional Limitations (5th ed 1998), a practitioner’s guide seeking to harmonize federal and state constitutional law.[9]

Justice Cooley explained the rationale for requiring compensation when an owner’s property interest is taken:

Eminent domain differs from taxation in that, in the former case, the citizen is compelled to surrender to the public something beyond his due proportion for the public benefit. The public seize and appropriate his particular estate, because of a special need for it, and not because it is right, as between him and the government, that he should surrender it. To him, therefore, the benefit and protection he receives from the government are not sufficient compensation; for those advantages are the equivalent for the taxes he pays, and the other public burdens he assumes in common with the community at large. And this compensation must be pecuniary in its character, because it is in the nature of a payment for a compulsory purchase.

Constitutional Limitations (5th ed 1998) at 693-94 (footnotes omitted).[10] This passage supports the payment of damages in both partial-takings cases and inverse-condemnation cases. Without compensation to both groups, the community at large would be able in essence to tax unjustly those living near a public project, such as a highway.

This point can be demonstrated. Recognizing, of course, that complexities in state tax law and highway finance make a precise figure difficult, an extremely rough estimate still demonstrates the point. Assume that the $650,000,000 M-6 construction figure is purely state dollars, that the state collects taxes only from individuals, and that the cost of the project is spread evenly among Michigan’s personal income tax returns. Under these circumstances, the average cost per Michigan income tax return — usually representing one or two taxpayers — would have been around $148 for the M-6 project ($650,000,000/4,400,000 tax returns). But defendants have, according to their appraiser, paid another $48,200 due to loss of value from highway effects. One presumes that all residents who are within a certain distance of the highway have suffered similar monetary loss. Without all who have been damaged being compensated, the public at large gets something quite valuable at a relatively modest expense to them as individuals, but at a significant expense to a small subset of the population.

But Cooley clearly differentiated partial takings from inverse condemnation. In describing what constitutes a taking, Cooley stated:

Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action.... So if by ... a change in the grade of a city street the value of adjacent lots is diminished, — in these and similar cases the law affords no redress for the injury.

Id. at 671-73 (footnotes omitted). Cooley had lengthy footnotes for these two sentences, but cited no Michigan cases in support of the first sentence and a single Michigan case, Pontiac v Carter, 32 Mich 164 (1875), for the second.[11] Cooley continued:

It must frequently occur that a party will find his rights seriously affected, though no property to which he has lawful claim is actually appropriated. As where a road is laid out along the line of a man’s land without taking any portion of it.... [n]o property being taken in this case, the party has no relief unless the statute shall give it. The loss is damnum absque injuria... So where a railroad company, in constructing their road in a proper manner on their own land, raised a high embankment near to and in front of the plaintiff’s house, so as to prevent his passing to and from the same with the same convenience as before, this consequential injury was held to give no claim to compensation.

Constitutional Limitations (5th ed 1998) at 673-74 (footnotes omitted). In the footnote for the last sentence quoted above, Cooley cited Grand Rapids & Indiana RR Co v Heisel, 38 Mich 62 (1878).[12]

In its brief in this case, the Michigan Department of Transportation cited Cooley’s General Principles of Constitutional Law in the United States of America, which was published in 1880. The section cited by MDOT states:

The rule by which compensation shall be measured is not the same in all cases, but is largely affected by the circumstances. If what is taken is the whole of what the owner may have lying together, it is clear that he is entitled to its value, ... and that this, except in extraordinary cases, must be the full measure of his injury. This rule will apply in all cases where the whole of any article or thing of value is taken, and not a part only, to the injury of what remains. But when less than the whole is taken, the question of just compensation becomes a question of damages merely; and in determining these the benefit to what is left may be offset against the damages, and the question to be determined will be to what extent the owner’s interest in that a part of which is to be taken will be diminished thereby. If the taking is of some right in an easement, or exclusive franchise, or other intangible right, the question will also be one of damages merely. But in any case mere incidental injuries or benefits, like those suffered and received by the community at large, — such as the greater facility in travel when the taking is for a railway, or the greater danger of fright to teams when making use of the highway, — are to be excluded altogether from the computation.

General Principles of Constitutional Law at 341-42 (footnote omitted and emphasis added by amicus curiae). There were no citations to Michigan cases in that excerpt.

It should be noted that the passage MDOT cites is taken from a hornbook meant to introduce law students to important constitutional issues, and that this hornbook is far less thorough than Constitutional Limitations.[13] Still, it is fair to note that Justice Cooley’s scholarly writings are somewhat contradictory. He recognizes that the costs of societal improvements should be spread proportionally amongst its citizens, yet he requires a physical taking before a citizen can constitutionally demand redress, creating the possibility that a citizen may be "compelled to surrender to the public something beyond his due proportion for the public benefit."

Cooley’s view on partial takings and damnum absque injuria, the type of damage obliquely referred to in the excerpt from General Principles of Constitutional Law, are more fully set out in Michigan case law. This case law deserves attention, since Cooley’s views as a justice of the Michigan Supreme Court are more important here than his views as a scholar trying to harmonize takings decisions from the various state and federal courts.

[8] It is not only the Michigan courts that admire Cooley’s work: The United States Supreme Court has called him a “great constitutional scholar.” Plaut v Spendthrift Farm, Inc, 514 US 211, 225 (1995).

[9] Justice Cooley wrote and edited five editions of “A Treatise on Constitutional Limitations.” Other editors compiled an additional three editions. Thus, there are eight total editions of this work, but the last edition that Cooley himself edited was the fifth, which was published in 1888. The fifth edition was republished in 1998 by the Lawbook Exchange, and that edition is used by amicus curiae, since it is the edition not clouded by other authors’ thoughts and analysis.

[10] This excerpt is also found verbatim in the eighth edition. 2 Constitutional Limitations (8th ed) at 1201.

[11] Pontiac v Carter will be discussed below.

[12] Heisel will be discussed below.

[13] For example, the eminent domain section in the 5th edition of Constitutional Limitations covers 59 pages, while the eminent domain section in General Principles of Constitutional Law covers 12 pages.