Roscommon Circuit Court LC No. 06-725893-CH
The opinion of the court was delivered by: O'connell, J.
Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ.
This case involves a dispute regarding the use of and property rights attached to a 20-foot by 120-foot strip of property at the end of Hitchcock Road along Higgins Lake in Gerrish Township, Roscommon County. After a bench trial, the trial court determined that the disputed strip of property was part of Hitchcock Road and, therefore, subject to the same restrictions regarding its use as those set forth in Jacobs v Lyon Twp (After Remand), 199 Mich App 667; 502 NW2d 382 (1993). We reverse and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
A. OVERVIEW AND DESCRIPTION OF THE SITE
The property in dispute is a 20-by-120-foot strip of land along the shore of Higgins Lake. Both plaintiff and the Road Commission claim that Hitchcock Avenue is 50 feet wide at this point, while defendants claim that the property in dispute is not part of Hitchcock Avenue, so Hitchcock Avenue is only 30 feet wide at this point. The northern 20 feet of Hitchcock Avenue are located in Section 9 of Township 24 North, Range 3 West, in Gerrish Township, while the southern 30 feet are located in Section 16, Township 24 North, Range 3 West in Gerrish Township. Accordingly, the road straddles the section line as it runs in an east-to-west direction.
Hitchcock Avenue dead-ends near the shore of Higgins Lake. In particular, the 50-foot wide paved public roadway ends approximately 120 feet east of the shore of Higgins Lake. The 120-foot by 50-foot parcel of property west of the Hitchcock Avenue terminus, known as DeWitt's Landing, has long been used by property owners in the area (specifically, "back-lotters") and by the public as an access site for Higgins Lake. Because the road commission did not appear to maintain this parcel of land, area residents created the DeWitt Landing Association and the DeWitt Dock Association to maintain the property and a public seasonal dock on the site.*fn1
Photographs of the site taken in 2006 indicate that Hitchcock Road is paved to approximately the eastern edge of DeWitt's Landing. On approximately the southern half of the property (corresponding to the portion of the property in Township Section 16), a paved cement boat ramp leads to the water.*fn2 The northern portion of the property (corresponding to the portion of the property in Township Section 9) consists of a mowed grassy area, a concrete retaining wall and patio, and a beach. In particular, a mowed grassy area is located on the easternmost two-thirds of the northern portion of the property. The mowed area ends at a low concrete retaining wall, located approximately two-thirds of the way down the strip of property toward the water. Past the retaining wall is a paved area that is wide enough for two picnic tables and a sandy beach leading to the water. At the northern edge of the property, a long dock stretches out into the water. Fences stretching to the water line the entire 50 feet to both the north and south.
The photographs also show that a guardrail is located at the eastern edge of DeWitt's Landing, stretching along the northern half of the eastern boundary of the property. The guardrail is approximately 20 feet wide, and it separates the roadway from the grassy area to the west. A "Road Ends" sign and a red diamond are posted immediately behind the guardrail. Another photograph depicts a sign posted by the DLDA on the property, which reads in part, "No tax dollars are spent on upkeep of this road end. Our volunteer organization keeps the dock, beach, ramp and grassy hill in a safe and sanitary condition for the public to enjoy."
The southern 30 feet of DeWitt's Landing (the 30-foot strip) is located in Section 16 of Gerrish Township and is part of the platted community of Pine Bluffs. The Pine Bluffs plat indicates that the northernmost 30 feet of the platted property, stretching approximately 400 feet from Higgins Lake to Pine Bluffs Drive, was originally identified as "North Street." The westernmost 120 feet of "North Street" corresponds to the 30-foot strip. This plat dedicated the streets shown on the plat "to the use of the public."
Although the 30-foot strip was never used as a road per se, it has been used for some time to take boats in and out of the water. Over half a century ago, DLDA members installed a cement boat ramp on the 30-foot strip, and over the years they have continued to maintain the boat ramp on behalf of the public.*fn3 Apparently both DLDA members and the public have used this area consistently as a lake access point.
In separate litigation in the late 1990s, the Roscommon Circuit Court determined that the 30-foot strip was a platted road dedicated to the public and, accordingly, it limited certain shore activities on the 30-foot strip, precluded the erection of private docks, boat hoists, and other anchorage devices, and permitted the erection and maintenance of one common public dock. The use of the 30-foot strip is not in dispute in this case.
C. PROPERTY TRANSFERS INVOLVING THE 20-FOOT STRIP
Specifically, this case concerns the use and ownership of the northern 20 feet of DeWitt's Landing (the 20-foot strip). Both parties acknowledge that this property is not located within the plat of Pine Bluffs, but is adjacent to the plat to the north. Unlike the 30-foot strip, which appears to consist primarily of the boat ramp, the 20-foot strip functions more as a small park. The underlying dispute in this case concerns whether this 20-foot strip is a public road and, therefore, whether the use restrictions that apply to the 30-foot strip also apply to the 20-foot strip.
At the turn of the 20th century, the land north of the Pine Bluffs plat, including the 20-foot strip, was also platted. This plat, known as the Kenwood plat, was dedicated and registered in 1901.*fn4 The platters designed the Kenwood plat to consist of 18 blocks, arranged in three groupings of six blocks each along the shore of Higgins Lake. The plat indicates that blocks one through six were located in Lot 2, blocks seven through 12 were located in Lot 3, and blocks A*fn5 and 14 through 18 were located in Lot 4. Each block contained 80 lots, arranged in two rows of 40 lots each.*fn6 Each lot measured approximately 32 by 65 feet. None of the lots stretched to the water. Instead, a large road known as Chicago Boulevard stretched along the shore of Higgins Lake for the length of the plat. Platted roads separated each grouping of blocks, and each block was separated by alleys that ran parallel to the shore of Higgins Lake. Another alley of undetermined width stretched along the southern edge of the plat to Chicago Boulevard on the lakeshore. At the time, the northern 20 feet of Hitchcock Avenue was part of this plat, and the westernmost portion of this alley appears to correspond with the 20-foot strip.*fn7 The plat specified that "the Streets as shown on said pl[at] are hereby dedicated to the use of the Public."
Between 1903 and 1909, Myrtle E. Hellen purchased either all or a substantial portion of the property in the Kenwood plat. After acquiring this property, Hellen petitioned the circuit court to vacate the Kenwood plat. The portion of Hellen's petition for vacation included in the lower court record indicates that she sought vacation of the plat, in part, because the plat was badly conceived. According to the petition, the widths of the streets and alleys were not clearly laid out and, apparently, the property had never been marked to show the layout of the plat, making it impossible for Hellen to resell the property and artificially increasing the taxable value of her land. Finally, Hellen requested "that the court may vacate the said plat and its lots, blocks, streets, and alleys . . . ." The Roscommon Circuit Court, recognizing that there appeared to be no opposition to Hellen's petition, entered an order vacating the Kenwood plat on September 9, 1909, which was recorded by the register of deeds on August 13, 1912.
In its initial motion for summary disposition, plaintiff submitted an affidavit from the owner of a local title search company, who claimed that according to a title search that she conducted, Hellen never conveyed the 20-foot strip of land at the southern edge of her property (which included the 20-foot strip at issue in this case) when she sold her land years after vacating her property. However, both parties later agreed that the information provided in this affidavit was incorrect, because Hellen did include the 20 feet at the southern edge of her property in her subsequent sale of this land.
Further, the parties submitted deeds detailing the subsequent property transfers that included the 20-foot strip. On February 17, 1922, Hellen sold to William J. Tenney a 400-square-foot parcel of property that included the 20-foot strip. On April 28, 1924, Tenney sold a portion of the property, including the 20-foot strip, to Charles H. DeWaele. On May 19, 1924, DeWaele sold a portion of the property, including the 20-foot strip, to Charles T. Hayden. On July 4, 1924, Hayden sold the property to Osain and Hulda Anderson, with the guarantee that the property was free from encumbrances. The property deeded to the Andersons included the 20-foot strip.*fn8
In February 1931, the Andersons sold some of their property to Francis and Faith Ross. The parcel that the Andersons sold to the Rosses excluded the 20-foot strip in question.*fn9 The Andersons continued to own this strip, along with a 1561/2 -foot parcel north of the Ross parcel and the land described in the exception to the 1931 deed. No subsequent transfers of the 20-foot strip were discovered, and the Andersons are the last owners of record of the strip.*fn10
The Rosses owned the property they purchased from the Andersons for the rest of their lives.*fn11 In 1973, Francis and Faith Ross created a trust, in which Francis was trustee, and transferred ownership of the property to the trust. In 1995, the property was sold to Paul and Nancy Rose. In July 2000, the Roses sold approximately half their property to Thomas and Claudia McLellan. None of these property transfers included the 20-foot strip.
D. PUBLIC DEDICATION OF HITCHCOCK AVENUE
Although the Kenwood plat dedicated all the streets and alleys depicted therein to the use of the public, the parties provided no evidence that the county accepted this dedication before the Kenwood plat was vacated. In fact, the parties provide no evidence that the county road commission took formal steps to accept dedications of any streets and alleys in the county before the 1930s. Plaintiff submitted copies of county maps from 1931 through the present that depicted Hitchcock Road as going to the edge of Higgins Lake, although a road commission employee admitted that the maps did not indicate the widths of the roads depicted. Plaintiff also submitted the minutes of an April 2, 1937, meeting of the Roscommon County Road Commission indicating that the county road commission had resolved to take over maintenance of all dedicated streets and alleys in all recorded plats in the county and a later resolution (apparently from 1953) designating these streets and alleys as county roads. Although the minutes of the 1937 meeting do not provide a list of the recorded plats in question, a handwritten note from this time written by a county official includes Kenwood among the list of recorded plats, even though the plat had been vacated for over 25 years at this point. A 1953 road commission resolution reaffirming under 51 P.A. 1951 the commission's prior takeover of roads pursuant to the McNitt Act did not include the plat of Kenwood among the recorded plats whose streets and alleys were taken over as county roads. The plat of Pine Bluffs was included.
At its April 16, 1940 meeting, the road commission resolved to incorporate particular metes-and-bound roads into the county road system. The roads listed for incorporation into the county road system included the road located on the north side of Section 16, but did not include a road located on the south side of Section 9.
In its answer to a discovery request, the road commission admitted that although it had historically considered the 20-foot strip to be part of Hitchcock Avenue, it could not find any information in its records indicating that there was "any dedication or conveyance which created this 20 [foot] portion of the road." Instead, the road commission averred that because there was continuous public use of the 20-foot strip for nearly a century, the 20-foot strip would be a road pursuant to the highway-by-user doctrine. At the trial in this case, Gloria Burns, a long-time employee and administrator of the Roscommon County Road Commission, testified that although it was the road commission's position that it had jurisdiction over the 20-foot strip and some maps depicted a part of Hitchcock Avenue as falling north of the section line, the road commission was unable to find any documentation confirming that it had accepted and certified the 20-foot strip as part of Hitchcock Avenue. Burns explained that "McNitt roads were accepted listing everything by plat" and that because mapmakers drawing a road on a section line tended to draw the road down the middle of a section line, the fact that part of Hitchcock Avenue was depicted as being north of the section line at the water's edge did not mean anything.
When asked if the road commission had ever performed maintenance on either the 20-foot or the 30-foot strips, Burns replied,
Not that we can find in our records and not to anyone that I have asked. In fact, I asked someone just yesterday when I went to visit the site, Clint Stauffer, worked for the road commission for thirty-nine years, hiring in about sometime in the Fifties, I thought maybe he would know if we put that ramp in or we did some type of work, you know, on the other side. He said we have ...