Grand Rapids Gravel Co. v. William J. Breen Gravel Co.

I cannot concur in the opinion of Mr. Justice CLARK.

I speak of the Breen Gravel Company as defendant. 1 Compiled Laws 1929, § 4022, gives the State highway commissioner no power to authorize an underpass on one man's property for private use by another. Private interest is never a public requirement. Constructing a tunnel through land constitutes a taking. 1 Elliott, Roads and Streets (4th Ed.), § 228. It is settled law in this State, as stated in plaintiff's brief, that:

"The ownership of the fee of lands used for highway purposes remains in the owner of the property over which the way…