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Township of Grayling v. Berry

Court of Appeals of Michigan

July 23, 2019

TOWNSHIP OF GRAYLING, Plaintiff/Third-Party Defendant-Appellee,
v.
ALAN BERRY and LOUIS SCARPINO, Defendants, and JOHN GUTKOWSKI, JAMES BOKHART, ROBERT BUCHHOLZ, NANCY CHARTIER, and DOUGLAS ELSWORTH, Defendants/Third-Party Plaintiffs-Appellants, and CAROL BUCHHOLZ, DANIEL BUJALSKI, RENEE BUJALSKI, BETTY BOKHART, KATHERINE CHESNEY, MICHELE GUTKOWSKI, DON HOLLIS, MATT LATUSEK, KATIE LATUSEK, KAREN MARTELLA, MICHAEL SAHR, SALLY SAHR, TIM SCARPINO, CHRISTINA SCARPINO, CONNIE STEVENS, MICHAEL STEVENS, JUDY MERMEESCH, PAUL WAGNER, JOANNE WAGNER, DAN WHITNEY, SHERRY WHITNEY, and MARJORIE WHITNEY, Third-Party Plaintiffs-Appellants, and DIRECTOR OF THE DEPARTMENT OF ENERGY, LABOR, & ECONOMIC GROWTH, CHAIRPERSON OF THE BOARD OF CRAWFORD COUNTY ROAD COMMISSION, CRAWFORD COUNTY DRAIN COMMISSIONER, DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION, DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES, GREAT LAKES ENERGY, MICHAEL MITCHELL, and JILL MITCHELL, Third-Party Defendants-Appellees, and FRONTIER COMMUNICATIONS, CHARTER COMMUNICATIONS, MICHAEL BUSHRE, KELLY BUSHRE, RAYMOND CONFER, WENDY CONFER, DAVID CONSTANTINE, DEANNA CONSTANTINE, MICHAEL KOLKA, HARRY & LUELLA KOLKA TRUST, CHARLES THIEL, and MONIQUE THIEL, Third-Party Defendants.

          Crawford Circuit Court LC No. 15-009657-CH

          Before: O'Brien, P.J., and Fort Hood and Cameron, JJ.

          Cameron, J.

         The Township of Grayling (hereinafter "Grayling") sued seven residents of Grayling, seeking declaratory and injunctive relief regarding the scope of the dedications of three specific platted roads located in a subdivision of Grayling known as Portage Lake Park. After this lawsuit was filed, those seven residents, along with 22 other residents (hereinafter referred to collectively as "the residents"), filed a third-party claim against Grayling and the Crawford County Road Commission (hereinafter "Road Commission"), among others. The residents appeal the trial court's order granting partial summary disposition under MCR 2.116(C)(4) (lack of subject-matter jurisdiction) and (C)(10) (no genuine issue of material fact) on the residents' amended counterclaim in favor of the Road Commission and a March 26, 2018 order granting summary disposition in favor of Grayling on its claims. Because we agree that the trial court properly granted summary disposition of the residents' claims, we affirm.

         I. BACKGROUND

         At the center of this case is a dispute involving three platted roads, Walnut Plaisance, Lincoln Park Boulevard, and portions of Portage Lake Drive, which are located in Portage Lake Park. The three roads were recorded in 1901 under three separate additions-the first, second, and fourth additions of Portage Lake Park. The roads were dedicated to and for the public's use. The Road Commission formally accepted Walnut Plaisance[1] and Lincoln Park Boulevard[2] in 1937, by way of a resolution under the McNitt Act, MCL 247.1 et seq., [3] which specifically incorporated the two roads into the county road system.

         The original plat was recorded as shown:

         (Image Omitted)

         A survey performed in February 2018 depicts the improved portion of Lincoln Park Boulevard:

         (Image Omitted)

         Portage Lake Drive, much of which has since been vacated by the Road Commission, runs parallel with and along the shoreline of what is now known as Lake Margrethe-originally named Portage Lake. Walnut Plaisance runs north and south, intersecting Portage Lake Drive at the shoreline. Lincoln Park Boulevard runs east and west, intersecting where Portage Lake Drive and Walnut Plaisance meet. The area where the three roads converge is the area in dispute in this case.

         Although there are large portions of the three roads that were intended to be developed as indicated in the 1901 plat, areas of Walnut Plaisance, Portage Lake Drive, and Lincoln Park Boulevard have remained undeveloped since being platted, and therefore, large portions of the roads that were intended to be developed do not actually exist. For instance, much of Walnut Plaisance is actually forested area, including the area that was intended to reach the shoreline. In response to a 1956 petition signed by 30 owners of real estate located in two of the additions, the Road Commission passed a resolution abandoning a portion of Portage Lake Drive for residential development. Although the original plat indicated that the two roads would meet at the shoreline-Walnut Plaisance was to extend to the shoreline, and Portage Lake Drive was to extend along the shoreline-the two were never developed and do not actually meet. However, a portion of Lincoln Park Boulevard was opened in the 1960s and is the only road in dispute that was developed and reaches the shoreline of the lake. The end of Lincoln Park Boulevard-the area the three roads as platted intersect-is now a dirt turnaround near the lake's edge and makes up the disputed area at issue.

         Owners of backlots in Portage Lake Park have historically used the disputed area for recreational purposes including swimming and picnicking, and they have also placed a dock for the mooring of their boats. Grayling sought declaratory and injunctive relief regarding the scope of the dedications of the roads, streets, alleys, and boulevards at issue. Grayling maintained that the recreational activities of the residents exceeded the scope of the dedications and, therefore, Grayling sought a declaration as to the scope of the dedications. Grayling also maintained that the activities of the residents violated MCL 324.30111b, and Grayling sought to enjoin the individual residents from violating both the scope of the dedication and MCL 324.30111b. The residents have continually maintained that Grayling does not have an actual property interest or right in the disputed area because Walnut Plaisance and Lincoln Park Boulevard are not public roads, the roads do not terminate at the water's edge, and the residents' activities do not occur at the end of a public road.

         II. ACCEPTANCE OF DEDICATIONS

         The residents first argue that the Road Commission did not accept the dedications of Walnut Plaisance and Lincoln Park Boulevard platted in 1901, and therefore, they are not public roads. We disagree.

         This Court reviews de novo a trial court's decision on a motion for summary disposition. Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "Jurisdictional questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo." Travelers Ins Co v Detroit Edison Co, 465 Mich. 185, 205; 631 N.W.2d 733 (2001). Whether an offer of dedication has been accepted is a question of law. Christiansen v Gerrish Twp, 239 Mich.App. 380, 388; 608 N.W.2d 83 (2000). The question of timeliness amounts to a factual determination by the trial court because it depends on the circumstances of each individual case. Kraus v Dep't of Commerce, 451 Mich. 420, 427; 547 N.W.2d 870 (1996). The trial court's factual findings are reviewed for clear error. Vivian v Roscommon Co Bd of Comm'rs, 164 Mich.App. 234, 238; 416 N.W.2d 394 (1987) (Vivian I), aff'd 433 Mich. 511 (1989).

         MCL 560.226(1)(b) and (c) provide that before a court may consider vacation, correction, or revision of a platted roadway dedicated to a county or township, the governmental unit must relinquish its rights. The residents maintain that the Road Commission does not have rights over the roads at issue because the Road Commission did not timely accept the dedications. Thus, the residents claim that the Road Commission did not accept the offers of dedication, despite the 1937 McNitt resolution, because (1) the 1937 McNitt resolution, without further action by the Road Commission ordering that Walnut Plaisance or Lincoln Park Boulevard be opened, was insufficient to establish acceptance, and (2) the length of time between the offers and the resolution in this case caused the offer to lapse. They also argue that even if a McNitt resolution is sufficient to establish acceptance, parts of Walnut Plaisance and Lincoln Park Boulevard, specifically, the road ends, must nonetheless be vacated because the 1937 resolution referred to (1) Walnut Plaisance in the first addition as being only 1, 050 feet long, when the road, in actuality, is 1, 320 feet long; (2) Walnut Plaisance in the fourth addition as being 1, 150 feet long, when the road, in actuality, is 1, 320 feet long; and (3) Lincoln Park Boulevard in the second addition as being 1, 750 feet long, when the road, in actuality, is 1, 900 feet long.

         A. ACCEPTANCE UNDER THE McNITT RESOLUTION

         For a road to become public property there must be (a) a statutory dedication and an acceptance on behalf of the public, (b) a common-law dedication and acceptance, or (c) a finding of highway by public user. Village of Grandville v Jenison, 84 Mich. 54, 65-68; 47 N.W. 600 (1890), aff'd 86 Mich. 567 (1891). The roads at issue here were dedicated by statute. To create a public road by statutory dedication, two elements are required: (a) "a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use," and (b) "acceptance by the proper public authority." Kraus, 451 Mich. at 424.[4]Public acceptance must be timely and must be disclosed through a manifest act by the proper public authority either formally confirming or accepting the dedication and ordering the opening of the street, or informally by exercising authority over it, in some of the ordinary ways of improvement or regulation. Kraus, 451 Mich. at 424.

         The residents assert that the 1937 McNitt resolution standing alone, without the Road Commission ordering the opening of the roads, is insufficient to constitute acceptance. In support of their argument, the residents cite Higgins Lake Prop Owners Ass'n v Gerrish Twp, 255 Mich.App. 83; 662 N.W.2d 387 (2003), aff'd 469 Mich. 907 (2003). However, Higgins Lake did not hold, as the residents claim, that "in addition to a timely acceptance, something more than a McNitt Act Resolution is required to perfect the acceptance." Rather, this Court stated, "We need not consider whether the McNitt resolutions in this case were sufficient to constitute formal acceptance of Montrose Avenue" because the Court resolved the issue "on the basis of MCL 560.255b, the 1978 amendment of the Subdivision Control Act (formerly the Land Division Act) that creates a presumption of acceptance." Id. at 114-115.

         In Rice v Clare Co Rd Comm, 346 Mich. 658, 664; 78 N.W.2d 651 (1956), the county road commission adopted a resolution in 1937 and "[r]esolved that the streets and alleys in the several plats of the county described below" "are taken over by the County" under the McNitt Act. The plats were described as "Plat of Tompkins Resort, part of Government Lots 6-7, Section 17, Township 18 North, Range 5 West, Clare [C]ounty Michigan, total mileage of the streets and roads, 1.3792." Id. The Supreme Court held that the McNitt resolution, by itself, constituted a valid acceptance of the offer to dedicate. Id. at 665.

         In Kraus, 451 Mich. at 427-430, the Court held that a McNitt resolution cannot suffice to accept a road if it is a general resolution purporting to take over all dedicated roads in a county. Id. Instead, a McNitt resolution must expressly identify the platted road in dispute or the recorded plat in which the road was dedicated "to effect manifest acceptance of the offer to dedicate the road to public use." Id. at 430.

         In Christiansen, 239 Mich.App. 380, the plaintiffs owned property in a subdivision in Gerrish Township that was bordered on the northern edge by Higgins Lake and bordered on the western edge by Grand Boulevard, which ran toward the lake. Id. at 382. The entire 505-foot length of Grand Boulevard was set forth in a 1903 plat of the subdivision and was offered to be dedicated for public use. Id. at 382. Approximately 280 feet of the boulevard was paved; the remainder of the boulevard was undeveloped from the mid-point of the plaintiffs' property to the shore of the lake. Id. The plaintiffs argued that a McNitt resolution, by itself, was insufficient to establish acceptance of the undeveloped portion of the boulevard. Id. at 386-387. This Court, despite describing one footnote in Kraus, 451 Mich. at 429 n 5, as "a wavering by the Kraus Court regarding whether a McNitt resolution that specifically identifies the road in question is sufficient evidence of a formal acceptance," noted that "the Kraus Court did not reject Rice but merely clarified its holding." Christiansen, 239 Mich.App. at 389. This Court found that Rice, as clarified by Kraus, remained good law and that "the current state of the law, until such time as the Supreme Court overrules Rice, is that such a resolution does suffice to accept the road." Id. This Court held, "Therefore, as long as a McNitt resolution expressly identifies the street in question, the resolution suffices as evidence of a formal acceptance of the street." Id. at 390. This Court concluded that the 1940 resolution specifically identifying Grand Boulevard was sufficient evidence of a formal acceptance by the county. Id.

         The 1937 McNitt resolution in this case expressly identified Walnut Plaisance and Lincoln Park Boulevard. This is sufficient evidence of a formal acceptance of the dedication of both roads by the Road Commission. Accordingly, the trial court did not err in concluding that the Road Commission formally accepted Walnut Plaisance and Lincoln Park Boulevard by way of resolution.

         B. TIMELINESS OF THE ACCEPTANCE

         The residents argue that the 1937 acceptance of the 1901 offers to dedicate were untimely. "[T]imely acceptance of dedicated lands in a plat requires that the acceptance of the dedication 'must take place before the offer lapses or before the property owner withdraws the offer.' "[5] Pine Bluffs Ass'n v Dewitt Landing Ass'n, 287 Mich.App. 690, 715; 792 N.W.2d 18 (2010), quoting Marx v Dep't of Commerce, 220 Mich.App. 66, 78; 558 N.W.2d 460 (1996). As long as the original proprietor or his successor takes no steps to withdraw the offer, the offer must be considered as continuing. Kraus, 451 Mich. at 427; White v Smith, 37 Mich. 291, 295-296 (1877). In White, the Court opined, "There is no doubt but that an acceptance must be made within a reasonable time, but what shall be considered such time must be largely governed by the surrounding circumstances in each case. And so long as the original proprietor, or those claiming through him, take no steps to withdraw the offer, we think it must be considered as continuing." White, 37 Mich. at 295-296. Similarly, the Kraus Court held that "whether an offer to dedicate lapsed or continued depends on the circumstances of each case." Kraus, 451 Mich. at 427. The Kraus Court noted, "While the outer limit for acceptance within a reasonable time has not been set, we note that this Court has held that a 1961 acceptance of an 1874 grant (eighty-seven years later) was unreasonably late." Kraus, 451 Mich. at 427.

         In this case, the residents did not present evidence of any attempts to withdraw the offers to dedicate Walnut Plaisance and Lincoln Park Boulevard before the Road Commission's acceptance in 1937. Accordingly, under Kraus, 451 Mich. at 425-427, the offers remained open at the time of the acceptance.

         In Christiansen, 239 Mich.App. at 391, this Court found that the 37-year span between the offer and acceptance was more in line with Ackerman v Spring Lake Twp, 12 Mich.App. 498, 501; 163 N.W.2d 230 (1968) (holding that a 26-year time span was not unreasonable) than with Kraus, 451 Mich. at 435 (holding that an 86-year time span was unreasonable). In this case, the 36-year time span between the offer and acceptance is similar to that in Christiansen, and therefore, was not unreasonable.

         The residents point to Vivian, 433 Mich. 511; 446 N.W.2d 161 (1989) (Vivian), and the cases cited therein, to support their argument that a 36-year time span between dedication and acceptance is excessive. In Vivian II, the plaintiff brought an action against the Roscommon County Board of Road Commissioners and others seeking to vacate an alley, street, and boulevard dedicated to public use in a 1901 plat. Id. at 513. The plaintiff had fenced, cared for, and maintained the property for over 40 years. Id. at 517. The dedication had not been accepted by any of the defendants. Id. The Supreme Court granted leave limited to the issue whether a 1978 amendment of the Subdivision Control Act of 1967, [6] 1967 PA 288, MCL 560.101 et seq., [7]was applicable to the case. Id. at 513. The Court found that there was sufficient evidence to show that the plaintiff had withdrawn the dedication before the effective dates of either the act or the 1978 amendment. Id. at 516. The cases cited in Vivian II involved situations where a substantial period of time had elapsed between an offer of dedication and an attempted acceptance, the use of the dedicated property was inconsistent during that time period, and ultimately the ...


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