Opinion
Docket No. 2,275.
Decided March 14, 1967. Leave to appeal granted June 8, 1967. See 379 Mich. 768.
Appeal from Kalamazoo; Sweet (Lucien F.), J. Submitted Division 3 December 9, 1966, at Lansing. (Docket No. 2,275.) Decided March 14, 1967. Leave to appeal granted June 8, 1967. See 379 Mich. 768.
Western Michigan University Board of Trustees brought condemnation proceedings against lands owned by Leon Slavin and Ruth Slavin. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.
Hardy, Starr Ferency and Ford, Kriekard, Brown Staton, for plaintiff.
Badgley, Domke, Morrison, McVicker Marcoux and Bauckham Reed, for defendants.
This appeal arises out of eminent domain proceedings initiated by the board of trustees of Western Michigan University. Appellants own undeveloped and wooded land adjacent to the University's land. There is dispute whether the parcel comprises approximately 40.09 acres or approximately 38 acres of land; however, this difference is not as serious as it could be, as the adjoining land of the acquiring university is also undeveloped and wooded. In May, 1964, the University was granted authority by the legislature to construct residence halls and a food service center to accommodate 1,100 students. In November of 1964, the board of trustees adopted a resolution declaring it would be necessary to take the subject parcel for public purposes.
During the 14-1/2-day trial, which produced a voluminous record, there was introduced widely divergent expert testimony as to the value of the parcel. The appellee introduced two expert witnesses who both testified the highest and best use for the land was for single-family residences, and set the value at $29,200 and $30,000 respectively.
Appellant introduced two expert witnesses who set the highest and best use of the land as for development of multifamily apartment buildings, and set the value at $414,000 and $476,500 respectively. The appellants were prohibited by the trial judge from introducing into evidence a purported sales contract between the appellants and an Ohio corporation, wherein the subject parcel would be sold for apartment-house development for $620,000 less costs of streets, sewers, and water lines on the property.
The jury returned a verdict declaring the necessity of taking the property and set just compensation of $145,000. Judgment was entered confirming that verdict.
This appeal was filed after appellants' motions for judgment notwithstanding the verdict and for a new trial were denied.
This appeal proceeds on several claims of error and theories. Appellants claim error in that the purported sales contract with the Ohio corporation was refused admission by the trial judge, that there was insufficient evidence from which the jury could determine the necessity of taking the subject parcel, that the appellee lacked the necessary authority to condemn the subject parcel, that instructions to the jury on the credibility of witnesses was inadequate, and that the verdict of the jury was inadequate and without evidentiary support.
Evidence of sales contracts or offers traditionally have been suspect as tools in condemnation evaluations. See Annotation, 7 ALR2d 781 (1947). Such evidence is prone to fraud and uncertainty. Sharp v. United States (1903), 191 U.S. 341 ( 24 S Ct 114, 48 L ed 211). Certainly such offers must be bona fide and the parties capable of performance. City of Kalamazoo v. Balkema (1930), 252 Mich. 308; City of Grand Rapids v. Ellis (1965), 375 Mich. 406. In this case, an Ohio corporation purportedly entered into the contract of purchase; however, there was insufficient proof that the corporation could fulfill its obligation under the contract. There is only the unsupported testimony of a witness, who claimed to be an officer of the aforesaid corporation, that he had seen the reports of the corporation and that it had the necessary funds or capital-raising potential to carry out the purchase. The trial court did not abuse its discretion in refusing to allow the admission of the proffered sales agreement, as there was insufficient foundation laid by the appellant to insure the reliability of the evidence.
The argument was presented by the appellants that the board of directors of Western Michigan University did not present sufficient evidence of the necessity of taking the subject parcel for the question to go to the jury. Appellants argued that the board did not show the necessity of approving a campus development plan encompassing the appellants' land and maintaining land owned by the university, adjacent to the subject parcel, as a recreational and nature-study area. Appellants' counsel argued that today's youth are no longer interested in the "birds and the bees", thus the proposed nature park is foolhardy. It is this Court's opinion that such an argument is unfortunate and ill-informed. The board of trustees of Western Michigan University has the responsibility of maintaining an institution to educate several thousand students. Const 1963, art 8, § 6, PA 1963 (2d Ex Sess), No 48, as amended (Stat Ann 1965 Cum Supp § 15.1120[1] et seq.). Its determination of necessity is prima facie evidence of necessity. City of Allegan v. Vonasek (1932), 261 Mich. 16; In re Acquisition of Land for Civic Center (1953), 335 Mich. 582. There was testimony by the members of the board of trustees and the faculty of the university that the park and recreational areas planned are important to the physical and psychological well-being of the students. The board of trustees declared, and supported with testimony, that it is necessary to the well-being of the students to provide grouped student residential facilities, with open spaces and recreational and park areas close to student dormitories. Such testimony was competent evidence to go to the jury on the question of necessity.
The appellants seem to argue that the proper course for university development is to place future buildings by considering only where there is physical room for them and where the ground is proven capable of supporting such buildings. There was testimony of experts on drainage and sewer facilities that supports the proposition that the proposed park area would be undesirable for dormitories even under the appellants' limited criteria for adequate construction sites. Thus, under the theories of both the appellants and appellee, we find the jury had sufficient basis for the finding that it was necessary for the subject parcel to be taken for a public purpose.
As to the argument that the board of trustees lacked the requisite legal authority to condemn the subject parcel, we find that it had the necessary authority by virtue of PA 1963 (2d Ex Sess), No 48, as amended by PA 1964, No 14 (Stat Ann 1965 Cum Supp § 15.1120[8]); House Concurrent Resolution No 61 (1962), House Journal, pp 1302, 1934; and House Concurrent Resolution No 58 (1964), House Journal, pp 850, 1824, which specifically authorized the construction of the new dormitories for Western Michigan University.
The appellants claim that there was an improper instruction as to the credibility of witnesses in that there should have been an instruction that, if the testimony of a witness was false in one regard, it was false in the whole. Appellants' attorney noted his exception to the charge in this regard immediately after the charge. The trial judge refused to modify his charge on the grounds that it was adequate as given. We agree. The proposed charge would have been incorrect. If the testimony is false in one aspect, the jury may in its discretion, disregard the entire testimony, or it may give credence to other testimony supported by other witnesses or evidence. People v. Johns (1953), 336 Mich. 617; People v. Hunter (1963), 370 Mich. 262. It is the opinion of this Court that reversible error was not committed by the trial court in charging the jury.
The precedent in Michigan is that condemnation awards are not disturbed on appeal if within the range of competent evidence. Department of Conservation v. Connor (1947), 316 Mich. 565. The decision of the lower court is affirmed, as within the range of what was presented as competent, expert testimony. No costs, a public question being involved.
T.G. KAVANAGH, P.J., and J.H. GILLIS, J., concurred.