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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6336

January 17, 1986

CONDEMNATION:

Procedures for condemnation of rights-of-way for drain purposes

DRAINS AND DRAINAGE:

Procedures for condemnation of rights-of-way

Proceedings for the condemnation of rights-of-way for drain purposes must be brought under the Uniform Condemnation Procedures Act.

Dr. Paul Kindinger

Director

Department of Agriculture

Ottawa Building, North

Lansing, Michigan

My opinion has been requested on a question relating to the Uniform Condemnation Procedures Act and the Drain Code of 1956. The question may be stated as follows:

Does the Uniform Condemnation Procedures Act control the procedures for the condemnation of rights-of-way for drain purposes or may such condemnation proceedings be also brought under the Drain Code of 1956?

The Uniform Condemnation Procedures Act, MCL 213.51 et seq; MSA 8.265(1) et seq, provides in its title that it is an 'Act to provide procedures for the condemnation, acquisition, or exercise of eminent domain of real or personal property by public agencies or private agencies; . . ..'

As stated in MCL 213.52(1); MSA 8.265(2)(1), the Act provides standards for the acquisition of property, the conduct of condemnation actions, and the determination of just compensation, but it does not confer the power of eminent domain upon any public or private agency. It is noted that for purposes of the Act, MCL 213.51(c); MSA 8.265(1)(c), defines the term 'agency' to mean 'a public agency or private agency' and subsection (i) thereof defines the term 'public agency' to mean 'a governmental unit, officer, or subdivision authorized by law to condemn property.'

Condemnation proceedings are to be commenced in the circuit court in the county where the property is located. MCL 213.55(1); MSA 8.265(5)(1).

As originally enacted, MCL 213.75; MSA 8.265(25), provided:

'(1) Except as otherwise provided by subsections (2) and (3), effective May 1, 1980, all actions for the acquisition of property by an agency under the power of eminent domain shall be commenced pursuant to and be governed by this act.

'(2) Actions for the acquisition of property by an agency under Act No. 149 of the Public Acts of 1911, as amended, being sections 213.21 to 213.41 of the Michigan Compiled Laws, Act No. 238 of the Public Acts of 1923, as amended, being sections 486.251 to 486.254 of the Michigan Compiled Laws, and Act No. 295 of the Public Acts of 1966, as amended, being sections 213.361 to 213.391 of the Michigan Compiled Laws, may be commenced pursuant to and be governed by this act, effective May 1, 1980.

'(3) All actions for the acquisition of property by an agency under Act No. 149 of the Public Acts of 1911, as amended, being sections 213.21 to 213.41 of the Michigan Compiled Laws, Act No. 238 of the Public Acts of 1923, as amended, being sections 486.251 to 486.254 of the Michigan Compiled Laws, and Act No. 295 of the Public Acts of 1966, as amended, being sections 213.361 to 213.391 of the Michigan Compiled Laws, shall be commended pursuant to and be governed by this act, effective April 1, 1983.' (Emphasis added.)

The Legislature amended MCL 213.75; MSA 8.265(26), to add a subsection (4) thereto and to make certain deletions from subsection (3) by means of 1980 PA 309, effective December 4, 1980. These amendments are not pertinent to your question.

MCL 213.76; MSA 8.265(26), provides:

'The following acts and parts of acts are repealed, effective April 1, 1983:

'(a) Sections 6 to 21 of Act No. 149 of the Public Acts of 1911, being sections 213.26 to 213.41 of the Compiled Laws of 1970.

'(b) Sections 6 to 30 of Act No. 295 of the Public Acts of 1966, as amended, being sections 213.366 to 213.390 of the Compiled Laws of 1970.'

In MCL 213.77; MSA 8.265(27), it is provided:

'Sections 2a to 2j of Act No. 238 of the Public Acts of 1923, being sections 486.252a to 486.252j of the Compiled Laws of 1970, are repealed effective April 1, 1985.'

The Uniform Condemnation Procedures Act contains no other specific provision for the repeal of condemnation procedures in any other act.

The Drain Code of 1956, MCL 280.73; MSA 11.1073, empowers a drain commissioner to secure from the owners of each parcel or tract of land to be transversed or damaged by a proposed drain or drains an easement or release of right-of-way and all damages on account thereof. Upon failure of the drain commissioner to secure such releases of rights-of-way within 60 days of the entry of the first order of determination, the drain commissioner may apply to the probate court in the county where the lands are situated for the appointment of three special commissioners for determination, if necessary, for the taking of the property for the use and benefit of the public and the just compensation to be made therefor. MCL 280.75-280.88; MSA 11.1075-11.1088.

The failure of the Uniform Condemnation Procedures Act to contain an express provision for the repeal of the procedural provisions of the Drain Code of 1956, MCL 280.75-280.88; MSA 11.1075-11.1088, is not determinative of your question. In MCL 213.75; MSA 8.265(25), the Legislature has clearly stated that with certain exceptions listed in subsection (2) through (4), 'all acquisitions of property by an agency under the power of eminent domain shall be commenced pursuant to and be governed by this act.' (Emphasis added.) The procedural provisions of the Drain Code of 1956, MCL 280.75-280.88; MSA 11.1075-11.1088, are not listed in subsections (2) through (4).

The meaning and intent of MCL 213.75(2), (3), and (4); MSA 8.265(25)(2), (3), and (4), MCL 213.76; MSA 8.265(26), and MCL 213.77; MSA 8.265(27), when read together, is clear. For limited periods of time only, the Legislature permitted actions for acquisition also to be commenced under the statutes enumerated therein and provided for the repeal of the enumerated statutes on dates certain. Thus, after the respective date certain, the acquisition of property under the enumerated statute was no longer available as an alternate procedure for the condemnation of property by an agency.

That this was the intent of the Legislature is confirmed by a review of the legislative history of the Uniform Condemnation Procedures Act and the Legislative Analyses attendant to its passage. These are appropriate sources relied upon by the courts to ascertain legislative intent. Liquor Control Commission v Fraternal Order of Eagles, Aerie No 629, 286 Mich 32, 43; 281 NW 427 (1938); Groveland Township v Jennings, 419 Mich 719, 728-729; 358 NW2d 888 (1984).

Introduced as 1979 HB 4652, Sec. 30 provided that '[a]fter April 1, 1980, all actions for the acquisition of property by a public agency or private agency under the power of eminent domain shall be commenced pursuant to and governed by this act.' The House Committee on Judiciary reported favorably a substitute (H-2) to HB 4652. 3 HJ 2811 (1979). Substitute (H-2) retained the substance of Sec. 30 under a renumbered Sec. 25 that all condemnation proceedings were to be commenced under the act but enumerated certain exceptions, not including the condemnation procedures contained in MCL 280.75-280.88; MSA 11.1075-11.1088, which were to be operative for limited time periods only and in Sec. 26 provided for the repeal of the excepted statutes on dates certain. 4 HJ 4434-4435 (1980). Although the Senate made minor changes in Sec. 26 and added Sec. 27, 1 SJ 277, 472 and 517 (1980), House Substitute (H-2) to HB 4652 was enacted without significant change.

House Legislative Analysis of HB 4652 as enrolled, Second Analysis (6-19-80), in pertinent part, states:

'THE APPARENT PROBLEM:

'Michigan has a number of condemnation statutes which authorize various public agencies and private agencies such as power companies, phone companies, and railroads, to acquire private property for public use. The procedures in these statutes are not uniform. The bill would create a single condemnation procedures act for use by both public and private agencies in acquiring property under the power of eminent domain. It would replace all other condemnation statute procedures on April 2, 1980.

. . .

'THE CONTENT OF THE BILL:

'The bill would create a single condemnation procedures act for use by both public and private agencies in acquiring property under the power of eminent domain where the agency has been granted that power by another statute.

. . .

'ARGUMENTS:

'Against:

'In some cases condemnation procedures are operating smoothly now. Public Act 295 of 1966, used chiefly by the Department of Transportation, is an effective and tested law with a good deal of case law to support it. The same is true of Public Act 149 of 1911, which is used chiefly by the Department of Natural Resources. It would be foolish to abandon an effective system.

'Response:

'There is some predictable resistance to the institution of new ways of doing things. Public Act 295 of 1966 is adequate for those agencies which can use it, as is Public Act 149 of 1911, but the problem of lack of uniformity remains. It is an obviously practical step to take the best portions of existing laws, correct their deficiencies and come up with the best possible law to apply to all agencies. Of course any new law must do without the benefit of interpretation of the courts at first. This bill would permit a three-year overlap (five years in the case of water and power companies) of the uniform act with existing laws so that the new law can be tested without fear that there will be no other means to take land should the law be crippled by court decisions. By the time existing statutes are repealed in 1983 the new law should have undergone whatever refining may be necessary in the courts.'

The legislative intent is manifest that the Legislature intended by enactment of the Uniform Condemnation Procedures Act that effective May 1, 1980, proceedings for the condemnation of rights-of-way for drain purposes be instituted under the Uniform Condemnation Procedures Act in the absences of any express exception enumerated in MCL 213.75(2), (3), or (4); MSA 8.265(25)(2), (3), or (4).

Because the Uniform Condemnation Procedures Act is a complete act in itself and does not confuse or mislead, it repeals by implication the condemnation procedures of the Drain Code of 1956, MCL 280.75-280.88; MSA 11.1075-11.1088, and is not a violation of Const 1963, art 4, Sec. 25. Charter Twp of Meridian v City of East Lansing, 101 Mich App 805, 808; 300 NW2d 703 (1980), lv den, 411 Mich 962 (1981).

It is my opinion, therefore, that proceedings for condemnation of rights-of-way for drain purposes must be conducted in accordance with the provisions of the Uniform Condemnation Procedures Act.

Frank J. Kelley

Attorney General


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