Horace Arnold v. The Village of Decatur.
Eminent domain: Attempt to purchase: Condition precedent. An attempt to agree with the owner upon a purchase of the premises is a condition precedent to adverse proceedings to take private property to widen a village street.
Necessity of the taking: Jury, In such proceedings it is essential that the jury pass upon the necessity of the taking for public use.
Submitted on briefs January 28.
Decided January 29.
Certiorari to Chester H. Hopkins, justice of the peace..
This was a proceeding to take private property to widen a street in the village of Decatur.
Severens d Boudeman, for plaintiff in certiorari.
Foster d Coleman, for defendant in certiorari.
Cooley, J.
The point made in this case, that an attempt hr agree with the owner upon a purchase of the premises was a condition precedent to adverse proceedings, was ruled in Chicago &c. R. R. Co. v. Sanford, 23 Mich., 418.
That it was essential the jury should pass upon the necessity for the taking was decided in Mansfield &c. R. R. Co. v. Clark, 23 Mich., 519; Grand Rapids &c. R. R. Co. v. Van Driele, 24 Mich., 409 ; and McClary v. Hartwell, 25 Mich., 139.
On these two grounds the proceedings must be reversed* with costs.
Campbell, J., and Graves, Gil J., concurred.
Ohristiancy, J., did not sit in this case.