STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5494

May 30, 1979

CONDEMNATION:

Condemnation of property belonging to a public body corporate

COLLEGES AND UNIVERSITIES:

Condemnation of property belonging to a state university by a city

CONSTITUTION OF MICHIGAN:

Art 8, Sec. 6 (autonomy of state universities)

Despite the provisions of 1957 PA 288 which authorizes the taking of property of a state university for a use that is 'more necessary,' the City of Kalamazoo may not condemn property acquired by Western Michigan University from the state conditioned upon its use for public parks, recreation or open space.

The Board of Control of Western Michigan University, however, may grant a sewer easement to the City of Kalamazoo across such property and the granting of the easement is subject to legislative approval only if the easement would materially interfere with the use of the property for a public park, recreation or open space purposes.

Honorable Robert A. Welborn

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on two questions which may be stated as follows:

1977 PA 158 authorized the State Administrative Board to convey to a certain parcel of state-owned land to Western Michigan University. The conveyance was to be subject to the condition that a lease between the state and the Board of Trustees of Michigan State University be continued. This lease provided that Michigan State University have and hold the land for as long as its department of entomology conducts experimental fruit pest research on the land. 1977 PA 158 further required that the conveyance provide that Western Michigan University utilize the property solely for public park, recreation, or open space purposes, except that the legislature, by statute, may authorize its use for some other public purpose.

Pursuant to 1977 PA 158, the property was conveyed to the Board of Trustees of Western Michigan University by the State Administrative Board by quit-claim deed on September 22, 1978. The deed specifically provides that the property is subject to the lease previously entered into between the state and Michigan State University and that the conveyance is upon the condition that Western Michigan University utilize the property solely for public parks, recreation or open space purposes unless otherwise authorized by public act.

The power of eminent domain is an inherent attribute of sovereignty. A city, however, is not a sovereign but rather a municipal corporation and creature of the state; thus, it has no inherent power of eminent domain and may condemn property only if the legislature has so provided. Sinas v City of Lansing, 382 Mich 407; 170 NW2d 23 (1969).

The power of eminent domain is normally exercised against private property. In the question posed, however, the City of Kalamazoo seeks to condemn property belonging to a public body corporate and already being used for a public purpose. In such a case, the Court in State Highway Commission v Township of St. Joseph, 48 Mich App 230, 238-239; 210 NW2d 251 (1973), quoted the following from 1 Nichols, Eminent Domain (3d ed), Sec. 2.2, pp 203-211:

See also, City of Detroit v Judge of Recorder's Court of the City of Detroit, 253 Mich 6; 234 NW 445 (1931), which held that, if the proposed use materially interferes with the existing use, specific legislation is needed authorizing the condemnation in question.

The legislature has authorized the taking of property of public hospitals and public colleges and universities for public use under the conditions provided for in 1957 PA 288, Sec. 2; MCLA 213.302; MSA 8.40(2), as follows:

A question which must be considered is whether this statute may be applied to institutions of higher education having the authority to grant baccalaureate degrees.

Under Const 1963, art 8, Sec. 6, the Board of Control of Western Michigan University:

The Board of Control is a constitutional body corporate. Const 1963, art 8, Sec. 6 confers the same constitutional powers and rights regarding the general supervision of Western Michigan University upon its Board of Control as is conferred upon the governing boards of the University of Michigan, Michigan State University and Wayne State University by Const 1963, art 8, Sec. 5. Board of Control of Eastern Michigan University v Labor Mediation Board, 384 Mich 561; 184 NW2d 921 (1971).

It has long been settled that:

See also, e.g., Sterling v Regents of the University of Michigan, 110 Mich 369; 68 NW 253 (1896); People, for use of Regents of the University of Michigan v Brooks, 224 Mich 45; 194 NW 602 (1923); State Board of Agriculture v Auditor General, 226 Mich 417; 197 NW 160 (1924); and Regents of the University of Michigan v State of Michigan, 395 Mich 52; 235 NW2d 1 (1975).

As discussed above, a municipal corporation may condemn property already owned by another public entity only if so authorized by the legislature. In the case of a state university or college, however, under Const 1963, art 8, Secs. 5 or 6, its property is 'beyond the control of the Legislature' and cannot be taken away without the consent of its governing board. Weinberg, supra. The legislature thus has no authority to authorize the condemnation of property owned by a state university or college.

It is, therefore, my opinion, in answer to your first question, that the City of Kalamazoo may not condemn property owned by Western Michigan University.

Addressing your second question, the conveyance to Western Michigan University, pursuant to 1977 PA 158, expressly provides that the land is to be used solely for public park, recreation or open spaces purposes, except that the legislature may authorize its use for some other public purpose. The granting of a sewer easement across the property would not necessarily interfere with the land's use for park or open space purposes. If the easement would not seriously interfere with this use, its granting would clearly be a property management decision within the discretion of the university's board of control.

While a university's governing board has exclusive management and control of the institution which the legislature may not interfere with, the legislature may appropriate state funds for a special purpose and if the university accepts the appropriation, it must use the funds for that purpose. Weinberg, supra; State Board of Agriculture v Auditor General, supra; Regents of the University of Michigan v State of Michigan, supra. The same result obtains when the legislature authorizes the conveyance of state property. Pursuant to 1977 PA 158, property was conveyed to Western Michigan University for a special purpose. The University accepted the property with full knowledge of the condition attached by the legislature. Any use of the property for a purpose which would materially interfere with the authorized use must, thus, be approved by the legislature pursuant to the specific requirements of 1977 PA 158.

As noted above, the land is subject to a lease to the Board of Trustees of Michigan State University which has a right to use of the land for the purpose for which it was leased. The owner may not destroy or materially interfere with this use nor may the owner authorize or permit anyone else to do so. Grinnell Bros v Asiuliewicz, 241 Mich 186; 216 NW 388 (1927); Royal Oak Wholesale Company v Ford, 1 Mich App 463; 136 NW2d 765 (1965). Consequently, if the sewer easement would materially interfere with Michigan State University's use of the land, its Board of Trustees must also agree to the granting of the easement.

It is my opinion, in answer to your second question, that if the Board of Control of Western Michigan University wishes to grant a sewer easement to the City of Kalamazoo across property conveyed to the University pursuant to 1977 PA 158, the granting of the easement is subject to legislative approval only if the easement would materially interfere with the use of the property for a public park, recreation or open space purposes.

Frank J. Kelley