Amicus Brief

MDOT v Rodney Tompkins and Darcy Tompkins

Case Year: 2007
Case Forum: Michigan Supreme Court
Keywords: Uniform Condemnation Procedures Act, condemnation, "just compensation" taking
Amicus Counsel:

William J. Danhof | Jeffrey S. Aronoff | Miller, Canfield, Paddock and Stone, P.L.C. | 150 W Jefferson Rd Suite 2500 | Detroit, MI 48226

CoAmicus Parties:

1. Michigan Association of Counties (MAC)
2. Michigan Townships Association (MTA)
3. County Roads Association of Michigan (CRAM)
4. Michigan Municipal Electric Association (MMEA)


The doctrine of eminent domain, i.e,, the power of the government to take private property for a public use for just compensation, is firmly established in both the federal and state constitutions. The power of eminent domain has been reserved in all Michigan constitutions dating back to the earliest days of statehood. The UCPA sets out the procedures governing the exercise of eminent domain. The UCPA cannot, however, lower the constitutional minimum of “just compensation” as understood at the time of the ratification of the 1963 constitution.

To be required to award “general effects” damages to landowners in partial takings cases would have considerable impact upon government’s financial ability to condemn property for public purposes and would fly in the face of established procedures for determining “just compensation” as established by the 1963 constitution.


In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR and Justices CORRIGAN and MARKMAN, the Supreme Court held:
The presumption of constitutionality of MCL 213.70(2), the statutory provision specifically excluding compensation for the general effects of a project for which property is taken that are experienced by the general public or by property owners from whom no property is taken, has not been overcome in light of the paucity of evidence indicating that, before 1963, those sophisticated in the law understood that just-compensation damagesinc:luded “general effects” damages and given contrary indications from caselaw and secondary sources predatingthe present state constitution. Thus, the circuit court properly relied on MCL 213.70(2) to exclude evidence of “general effects” damages attributable to the M-6 highway.
1. The phrase “just compensation” is a complex legal term of art and, as such, cannot be interpreted merely by construing it carefully. Rather, the entire taking provision of the Michigan
Constitution has a technical meaning that must be discerned by examining the purpose and history of the power of eminent domain. Accordingly, the phrase “just compensation” must be
given the same meaning that those sophisticated in the law gave it when the 1963 constitution was ratified. The fact that, before 1963, juries were entrusted with the task of determining just compensation does not mean that jurors had the unfettered discretion to define the term rather than applying the technical , legal meaning of the term in accordance with the court’s instructions.
2. The general principle that a court should leave the individual whose land was taken in as good a position as if the land had not been taken when awarding just compensation does not
settle the specific question whether those sophisticated in the law when the 1963 constitution was ratified relied on that principle to include “general effects” damages in just compensation awards. There is no clear indication in any reported Michigan case that such damages were ever
awarded before 1963. On the contrary, pre-1963 caselaw holding that a property owner in a partial taking is not entitled to consequential damages arising from the taking of another person’s property, together with secondary sources concerning the scope of damages recoverable for a partial taking, indicates that those sophisticated in the law before 1963 understood that the “general effects” of a taking that are felt by the public are not compensable in a partial taking.
The cases on which the defendants rely do not explicitly endorse the principle that “general effects” damages are compensable in such cases; rather, they focus on diminution or severance damages that were specific and unique to the remaining parcel, not effects that were felt generally by the public. Accordingly, because there is no clear indication that “just compensation” included “general effects” damages before the 1963 constitution was ratified, and because statutes are presumed constitutional, the statutory provision excluding such damages when determining just compensation is not unconstitutional.
Reversed and remanded to the circuit court.

MSC requested LDF amicus brief? No

The Michigan Department of Transportation (MDOT) brought an action under the Uniform Condemnation Procedures Act, MCL 213.51 el seq., in the Kent Circuit Court against Rodney and Darcy Tomkins, seeking to take a small strip of their land for use in a county road overpass to be constructed above a new state highway. The parties agreed that the strip of land
was valued at $3,800, but the defendants sought additional damages that resulted from the project, such as dust, dirt, noise, vibration, smell, and proximity to the highway. The court ruled on MDOT’s motion in limine, that MCL 213.70(2), which excludes compensation for the general effects of a project for which property is taken that are experienced by the general public or by property owners from whom no property is taken, is clear and constitutional, and precludes the defendants from presenting evidence of the general effects of the project in determining just compensation for the property taken. The defendants appealed. The Court of Appeals, WHITBECK, C.J., and BANDSTRA and MARKEY, 11., held that MCl
213.70(2), as applied in partial taking cases, impermissibly conflicts with the established constitutional meaning of “just compensation,” which requires consideration of all factors
affecting the market value of the remaining parcel. The Court of Appeals remanded the case to determine whether the land taken was used in an integral and inseparable part of the highway construction project, which would entitle the defendants to just compensation that accounts for all relevant factors affecting the market value of the remaining parcel. 270 Mich App 153 (2006). After the circuit court determined on remand that a question of fact existed regarding this issue, the Court of Appeals again remanded for the trier of fact to consider expert testimony regarding the proper just compensation for the diminution in value of the remaining property, and denied the plaintiff’s motion for reconsideration. The plaintiff filed an application for leave to appeal with the Supreme Court, which the Supreme Court granted. 478 Mich 903 (2007).

Case Number: 2007-02
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