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Description

of property, etc.

Jury.

Proviso,

question of necessity.

tion, without the consent of the owners, for a just compensation to be made. A description of the property to be taken shall be given and, generally, the nature and extent of the use thereof that will be required in making and maintaining the property shall be stated, and also the names of the owners and others interested in the property, so far as can be ascertained, including those in possession of the premises. The petition shall ask that a jury be summoned and empaneled to ascertain and determine whether it is necessary to take for public use the absolute title in fee to such private property as it is proposed to take and to ascertain and determine the just compensation to be made therefor. The petition may state any other pertinent matters or things and may pray for any other or further relief to which the city may be entitled within the objects of this act: Provided always, That upon request of said city attorney, corporation counsel or other law officer of the city, made at any time before the empaneling of a jury, such jury shall be empaneled to try only the question of the necessity of taking the absolute title in fee to such private property for public use, and if such jury determine that it is necessary to take the absolute title in fee to such private property for such public use, that another jury be empaneled to determine the compensation to which any person or percompensation. sons may be entitled because of the taking of such property for public use, in manner and form as is hereinafter provided. SEC. 4. Upon receiving such petition it shall be the duty of the clerk of said court to issue a summons against the respondents named in said petition, stating briefly the object of said petition, and commanding them in the name of the people of the State of Michigan to appear before said court, at a time and place to be named in said summons, not less than twenty nor more than forty days from the date of the same, there to show cause, if any they have, why the prayer of said petition should not be granted.

Jury to determine

Summons to issue.

What to state.

How served.

SEC. 5. Said summons shall be served by the sheriff, under-sheriff, deputy sheriff of the county, or by any member of the metropolitan police of the city of Detroit, at least five days before the return day thereof upon all of the respondents found within the county, by exhibiting the original and delivIf respondent ering a copy to each of them. If any respondent who is a

cannot be

found.

If minor, etc., interested.

Guardian.

resident of the county can not be found, the summons shall be served by leaving a copy thereof at his or her usual or last place of abode, with some person of suitable age and discretion. If any minor or person of unsound mind is interested in the premises to be taken, service may be made upon the guardian of such person, if any, and if there is no guardian the court may appoint some discreet and proper person to be guardian of such person in such proceedings; any such guardian shall have authority to represent such person in said proceedings. The proceedings to appoint such guardian shall

be the same as in other cases provided by statute. If it shall appear on the return day of the summons that any respondent can not be found within the county and has not been served in the manner provided, or is a non-resident and has not voluntarily appeared, the court may make an order requiring such respondent or respondents to appear and show cause why the prayer of the petition should not be granted on a day

[blocks in formation]

Service by publication.

to be named in the order not less than thirty days from the Service of date thereof, and may require that a certified copy of such order. order be personally served on such respondents wherever found, if practicable, at least six days before the time named in the order for appearance, or the court may make such order for appearance and require as to any or all such respondents who shall not have been personally served and have not appeared, that service be made by publishing a certified copy of such order for three successive weeks at least once in each week in at least one newspaper published within the county, if there be one, and if not then in a paper published in the county nearest thereto, the last publication to be at least six days before the day fixed in the order for appearance. Alias and pluries summons may be issued and the court may mons. adjourn the proceedings from time to time as there shall be occasion and as in other civil cases. Service of such order for appearance in either mode prescribed shall be sufficient notice of the proceedings to bind the respondents and the property represented by them. The return of the officer upon Return of the summons and an affidavit of the due service or the publication of the order for appearance, if any, shall be filed in the clerk's office before a jury shall be empaneled and shall be sufficient evidence of service on the respondents and of the manner of service.

Alias and

pluries sum

officer.

When court

jury.

selected, etc.

SEC. 6. On the return day of the summons or on some subsequent day to which the proceedings shall have been may order adjourned, if no sufficient cause to the contrary has been shown, the court shall make an order that a jury be empaneled in the cause. Such jury shall be composed of twelve free- How holders of the county and not directly interested in said proceedings and shall be selected and empaneled as follows: The sheriff, under-sheriff or deputy sheriff of the county shall, on the same day or at an adjourned day, make a list of twentyfour resident freeholders of such county, and the city attor ney, corporation counsel or other law officer of the city, in person or by an assistant or deputy, and the respondents collectively, shall each have the right to strike six names from the list of persons written down as aforesaid, and, subject to objection for cause, the twelve persons whose names are left on the list shall compose the jury for the trial of the cause, and shall be summoned to attend at such time as the court shall direct, by a venire issued by the clerk of the court, and to be served by one of the officers aforesaid. If the respondents neglect or refuse to strike six names from said list, it shall be

If respondents neglect from list.

to strike

Talesmen.

Jurors to

be sworn.

done by the judge of the court, and in case any of the persons to be summoned can not be found in the county, or being summoned do not attend, or shall be excused for cause or otherwise, talesmen possessing the necessary qualifications may be summoned as jurors in the case by such sheriff or sheriff's officer, or other authorized person, and the practice and proceedings under this act, except as herein provided, relative to empaneling, summoning and excusing jurors and talesman, and imposing penalties or fines upon them for non-attendance, shall be the same as the practice and proceedings of the cir cuit courts of the State relative to petit jurors in civil cases in such courts.

SEC. 7. The jurors so empaneled shall be sworn or shall affirm in substance as follows: "You do solemnly swear (or affirm) that you will well and truly ascertain and determine whether it is necessary to take for public use the absolute title in fee to the private property which the petition describes and prays may be taken for such public use, and if you determine that it is necessary to take the absolute title in fee to such private property for public use, that then you ascertain, determine and award the just compensation to be made therefor, and faithfully and impartially discharge all other duties as devolve upon you in this case, and unless discharged by the court a true verdict give according to the law and the evidence, so help you God, (or under the pains and penalties Duty of jury. of perjury)." The jury shall hear the proofs and allegations of the parties and, if so ordered by the court, shall go to the place where the public utility sought to be taken for public use is situated, in the charge of an officer. They shall be instructed as to their duties and the laws of the case by the judge of the court and shall retire under the charge of an officer and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing and be signed by the foreman or by all the jurors.

Instruction.

Determination and award.

Title in fee subject to

SEC. 8. The jury shall determine by their verdict the necessity for taking the absolute title in fee to such private property for public use, and in case they find such necessity exists, they shall award just compensation therefor to the owners of the property taken as well as to the owners of any mortgage, lease, agreement or other lien, estate or other interest therein. But the petitioner may take the absolute title in fee to said mortgage, etc. property subject to any mortgage or other lien thereon whenever its intention so to do is declared in the resolution of the common council, provided for in section two of this act, as well as in the petition of the city attorney, corporation counsel or other legal representative of the city under section three of this act, and in that event no compensation shall be awarded to the holder of such mortgage or lien.

Copy of peti

SEC. 9. To assist the jury in arriving at their verdict the tion and map. court may allow the jury, when they retire, to take with them the petition filed in the case and a map showing the location

of the public utility proposed to be taken for public use and
may also submit to them a blank verdict, which may be as Blank
follows:

verdict.

PART I.

We find that it is

...

necessary to take the absolute title in fee to the private property described in the petition in this cause, for the use of the public.

PART II.

The just compensation to be paid for such private property we have ascertained and determined, and hereby award as follows:

Description of the property to be taken.

Owners, occupants and others interested in each parcel.

Compensation.

To whom
payable.

The different descriptions of the property and the names of the occupants, owners and others interested therein, may be inserted in said blank verdict, under the direction of the court, before it is submitted to the jury, or it may be done by the jury.

SEC. 10. Whenever the city attorney, corporation council Jury to be [counsel] or the law officer of the city shall request that the sworn. jury be empaneled under the proviso contained in section three of this act, such jury shall be sworn or shall affirm in substance as follows: "You do solemnly swear (or affirm) that you will well and truly ascertain and determine whether it is necessary to take for public use the absolute title in fee to the public utility which the petition describes and prays may be taken for public use, and faithfully and impartially discharge all other duties as devolve upon you in this case and unless discharged by the court a true verdict give according to the laws and the evidence, so help you God (or under the pains and penalties of perjury)." The jury shall hear the proofs To hear and allegations of the parties and if so ordered by the court proofs, etc. shall, in charge of an officer, go to the place where the public utility sought to be taken is situated and upon or as near thereto as practicable and examine the premises. They shall Instruction be instructed as to their duties and the law of the case by the by judge. judge of the court and shall retire under the charge of an officer and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing and be signed by the foreman or by all the jurors.

In case jury

finds not necabsolute title.

essary to take

In case jury finds necessity to take title.

Compensation.

Rents and profits, etc.

Writ of assistance.

Jury to determine compensation.

How jury summoned.

Oath.

To hear

proofs, etc.

Instruction by judge.

SEC. 11. If the jury find that it is not necessary to take the absolute title in fee to the public utility mentioned in the petition for public use, such finding may be set aside either on a motion for a new trial or on appeal to the supreme court, as herein provided, but such finding shall in no event be a bar to the institution of new proceedings.

SEC. 12. If the jury find that it is necessary to take for public use the absolute title in fee to such public utility, the petitioner may at once take possession of said property upon giving security to be approved by the court, after due notice to all parties concerned, to make just compensation to all persons entitled thereto for the taking the absolute title in fee to said public utility for public use by petitioner, under this act and in case said verdict is set aside said city to account to the owner or persons interested for all rents or profits derived by it from such possession and to indemnify them for all damages they may sustain thereby, and in the event said petitioner shall be entitled, on making a sufficient showing, to a writ of assistance to put it in possession of the property, as if the compensation for the taking of the absolute title in fee to such property awarded by the jury had been awarded and paid into the city treasury in accordance with section twenty of this act.

SEC. 13. If the jury find that it is necessary to take for public use the absolute title in fee to the public utility mentioned in the petition, and no motion for a new trial having been made or determined, and no appeal from such finding of said jury being pending in the supreme court, then either the petitioner or any person entitled to compensation for the taking of said property may move the court for the empaneling of a jury to determine the just compensation therefor, and thereupon a jury shall be summoned and empaneled in accordance with section six of this act. All jurors so empaneled shall be sworn or shall affirm in substance as follows: "You do solemnly swear (or affirm) that you will well and truly ascertain, determine and award the just compensation to be made for the taking for public use the absolute title in fee to the utility mentioned in the petition and faithfully and impartially discharge all other duties that devolve upon you in this case and unless discharged by the court a true verdict give according to the law and the evidence, so help you God (or under the pains and penalties of perjury)." The jury shall hear the proofs and allegations of the parties and if so ordered by the court shall, in the charge of an officer, go to the place where said public utility sought to be taken is situated, and upon or as near thereto as practicable and examine the premises. They shall be instructed in their duties and the law of the case by the judge of the court and shall retire under the charge of an officer and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing and be signed by

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