Daily Development for
Friday, June 26, 1998
By: Ira Meislik
Daily Developments normally are edited and prepared by Prof. Patrick A. Randolph, who is in China until late July. Ira Meislik will file periodic developments reports in Professor Randolph's absence.
CONSTITUTIONAL LAW; INVERSE CONDEMNATION: The construction of a highway and service drive does not constitute a compensable taking of adjacent land where the landowner has not suffered damages different from that suffered by others similarly situated.
Spiek v. Michigan Dept. of Transp., 572 N.W.2d 201 (Mich. 1998).
The landowner sought to recover damages under the just compensation clause of the Michigan Constitution, claiming that dust, vibration, noise and fumes arising from the use of a newly constructed expressway and service drive so interfered with the owner's use and enjoyment of the property as to render it worthless. The court held that the landowner failed to state a claim on which relief may be granted because the effects of the highway and service drive on the landowner's property were the same as those experienced by all owners of land in similar proximity to a highway and service drive. According to the court, such common harms are incidental effects which do not amount to a taking. Under Michigan law, just compensation is due only when the effects on the claimant's land are different in kind, not simply in degree, from those suffered by other landowners similarly situated.
Courts commonly refer to the persistent passing of trains on a railroad, or planes in the air, or vehicles on the road as "legalized nuisances." The standard for compensation is that the property owner must demonstrate that its property was "detrimentally affected to a greater degree than that of the citizenry at large in conjunction with the normal use of a highway. An example given by the court was a railroad case where the complainant's property was situated so that when the train went through a tunnel, the "smoke ... cinders and gasses" from the train were expelled onto the property by "a fanning system installed in the tunnel ... ." A separate allegation that the complainant's house was damaged by track vibration was rejected because the damage was not unique to that particular property. Similarly, persistent intrusion of low flying aircraft amounts to compensable physical intrusion, but those suffering merely the normal inconvenience of air travel over their lands at higher altitudes will not.
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or firstname.lastname@example.org
Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.