Kraus v. Gerrish Tp.

• Citation: 517 N.W.2d 756,205 Mich.App. 25
• Decision Date: 02 May 1994
• Docket Number: 144999,154036 and 157571,144763,Nos. 144762,144998,s. 144762
• Parties: Otto KRAUS, v. GERRISH TOWNSHIP. Peter APOSTILE v. GERRISH TOWNSHIP. Isabelle M. ZIOLA v. GERRISH TOWNSHIP. Randolph P. LUCK v. LYON TOWNSHIP.
• Court: Court of Appeal of Michigan (US)

Page 756

517 N.W.2d 756

205 Mich.App. 25

Otto KRAUS, v. GERRISH TOWNSHIP.

Peter APOSTILE v. GERRISH TOWNSHIP.

Isabelle M. ZIOLA v. GERRISH TOWNSHIP.

Randolph P. LUCK v. LYON TOWNSHIP.

Nos. 144762, 144763, 144998, 144999, 154036 and 157571.

Court of Appeals of Michigan.

Submitted Feb. 10, 1994, at Grand Rapids.

Decided May 2, 1994, at 9:40 a.m.

Released for Publication June 30, 1994.

Law Offices of William L. Carey by William L. Carey, Pamela Stefan, Robert K. Huber, and Roberta L. Eckert, Grayling, for plaintiffs.

Hess & Hess, P.C. by Robert A. Hess, Roscommon, for Gerrish Tp.

Douglas Dosson, Roscommon, for Lyon Tp.

James R. Deamud, Prudenville, for Roscommon County Road Com'n.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Thomas J. Emery, Asst. in Charge, and James E. Riley, Asst. Atty. Gen., for state defendants.

William H. Horton, Troy, for certain individual defendants in Nos. 144762, 144998, 144763, 144999, and 157571.

Before NEFF, P.J., and MURPHY and M.R. STEMPIEN, ^* JJ.

NEFF, Presiding Judge.

These consolidated appeals arise from four distinct actions brought by private individuals, who own real property on or near the shoreline of Higgins Lake, to secure the vacation of various platted but unimproved "paper streets" that abut their respective properties. In Docket Nos. 144762 and 144998, the State of Michigan and various fee or beneficial title holders of real property located in the Whittington Park Subdivision, Gerrish Township, Roscommon County, appeal as of right from a judgment that vacated portions of Newman, Walnut, and Chestnut Avenues. In Docket Nos. 144763 and 144999, the State of Michigan and various fee title holders of real property located in the Almeda Beach Subdivision, Gerrish Township, Roscommon County, appeal as of right from a judgment that vacated a portion of Don M. Boulevard. In Docket No. 154036, plaintiff Isabelle M. Ziola, a fee title holder of real property located in the Whittington Park Subdivision, appeals as of right from an order that denied her request to vacate a portion of Oak Avenue, but that quieted title in Ziola to the real property occupied by her home and outbuildings to the extent that those structures encroached upon the avenue as originally platted. Finally, in Docket No. 157571, plaintiffs Luck appeal as of right from a judgment that rejected their request for the vacation of a portion of Michigan Central Park Boulevard, which is located in the Michigan Central Park Boulevard Subdivision, Third Addition, Lyon Township, Roscommon County.

I

A

Plaintiffs Kraus, Kutz, Stoye, and Mueller own lakefront property in the Whittington Park Subdivision, which was platted in 1903. Plaintiffs' property abuts the platted but unimproved portions of Newman, Walnut, or Chestnut Avenues that run east from the platted and improved Burrows Avenue to the shoreline of Higgins Lake.

The portion of Newman Avenue that is the subject of the instant appeal separates plaintiff Stoye's property, which is located immediately adjacent to and north of the avenue, from plaintiff Mueller's property, which is located immediately adjacent to and south of the avenue. The avenue consists of level ground covered with grass that is maintained as a lawn by the Stoyes. Trees with trunks measuring from six inches to two feet in diameter stand in the avenue, as do ornamental trees planted by the Stoyes. The avenue terminates where the ground abruptly drops ten to fifteen feet to the rocky shoreline below. Neither Gerrish Township nor the Roscommon County Road Commission has expended any resources to open the avenue to either pedestrian or vehicular traffic as evidenced by their failure to remove trees from the avenue or grade or pave the avenue. Nor have these governmental units added such improvements as storm drains, curbs, or ditches.

While public improvements have not been made to the avenue, improvements made to the private property abutting both sides of the avenue have encroached onto and across the avenue over the years. In 1931, a fence existed approximately eight to ten feet east of Burrows Avenue and ran parallel to that avenue from the Stoyes' property to Mueller's property. This fence was replaced in 1962 with another fence. The Stoyes intended the fence to serve as a barrier to public access to the avenue. Mueller, on the other hand, only intended the fence to beautify the property. Beneath this fence, Frederick Stoye's father constructed a concrete curb that runs parallel to Burrows Avenue. Further, Mueller's garden house encroaches four feet into the southeast corner of the avenue. The garden house was constructed in 1959. On the southwest corner of the avenue sits a portion of Mueller's concrete walkway. A concrete and cobblestone pillar stands on either side of the walkway; only the pillar standing to the north of the walkway encroaches upon the avenue, however.

The portion of Walnut Avenue that is in question exists in a natural state similar to that of Newman Avenue. Walnut Avenue is wooded with oak and pine trees. Some of the trees have trunks measuring eighteen inches in diameter and stand thirty to forty feet tall. The avenue terminates on a plateau that rises between six and fifteen feet above the shoreline, which is composed of glacial debris. Plaintiffs Kraus and Kutz, who own property abutting Walnut Avenue, maintain the avenue by raking leaves, removing fallen branches and twigs, mowing the grass, planting and trimming trees, and removing poison ivy that grows near the shoreline. Neither the township nor the road commission has expended monies or manpower to open, improve, or maintain the avenue.

Also like Newman Avenue, Walnut Avenue has been encroached upon by the adjoining property owners. A cobblestone and cement planter stands in the avenue. The year 1925 is etched in the cement at the base of the structure. However, the most prominent features appearing in the avenue are an eight-foot-tall cement and cobblestone barbecue pit and a cement picnic table with a cement bench. Several cement steps are located near the barbecue. These structures were built by plaintiff Kutz and his father in 1942. Further, in the late 1930s or early 1940s, a wire fence with a wooden gate ran the length of Walnut Avenue, bisecting it, from Burrows Avenue to the lake. The fence slowly rotted away and ceased to exist by the 1950s or 1960s.

Chestnut Avenue, like Newman and Walnut Avenues, runs through stands of pine and oak; its surface is covered with grass. The avenue terminates on a plateau that rises approximately fifteen feet above the level of the lake. The shoreline is covered with glacial debris and undergrowth. The avenue has never been opened for pedestrian or vehicular traffic by the township or the road commission. Further, neither governmental authority has expended resources to improve or maintain the avenue.

Plaintiff Kraus owns property that is immediately adjacent to and north of Chestnut Avenue. His neighbors across the avenue and to the south have made numerous encroachments onto the avenue. Their home encroaches eight feet into the avenue. Additionally, the neighbors built a split-rail fence in the 1970s that runs from Burrows Avenue to the lake, bisecting the avenue. The split-rail fence replaced a badly deteriorated woven-wire fence. The neighbors' driveway and landscaping also encroach onto the avenue.

Plaintiffs Kraus, Kutz, Stoye, and Mueller commenced an action in the circuit court in 1989 that sought the vacation of those portions of Newman, Walnut, and Chestnut Avenues that are contiguous to their respective properties. Plaintiffs also sought a declaration that they had extinguished through adverse possession any easement interests held in the avenues by the other property owners in the platted subdivision.

The trial court dismissed plaintiffs' adverse possession claim, but granted their vacation request, opining that neither the township nor the road commission had accepted the dedication of the three avenues and, therefore, that vacation of the requested portions of the avenues was appropriate. In reaching its decision to vacate the avenues, the trial court rejected defendants' claim that the road commission had formally or informally accepted the dedication of the avenues to public use as evidenced, in part, by its incorporation of the avenues into the county road system by resolutions passed on April 2, 1937, and April 16, 1940, pursuant to 1931 P.A. 130, commonly referred to as the McNitt Act, repealed by 1951 P.A. 51, and by its March 16, 1953, resolution that "formally acknowledge[d] and confirm[ed] and reaffirm[ed]" the road commission's prior taking over as county roads "all streets, roads and alleys, whether named or not, and whether called avenues, boulevards, courts, streets or alleys," and by its filing of notices of encroachment with the county registrar of deeds and serving such notices upon property owners who placed encroachments on the unimproved portions of platted ways.

B

Plaintiffs Apostile, Grinell, Fritz, Fryfogle, and Rimarcik hold fee interests in parcels of real property located in Blocks 1 through 3 of the Almeda Beach Subdivision, which was platted in 1907. Plaintiffs' parcels face Higgins Lake, but are separated from the lake by the platted but unimproved Don M. Boulevard, which runs parallel to the shoreline.

The boulevard extends across irregular, grass-covered terrain that, at points, slopes steeply to the shoreline. Ornamental trees dot the boulevard, as do trees with trunks measuring one foot in diameter and standing thirty to seventy feet tall. No actions have been taken and no money has been spent by either the township or the road commission to improve the boulevard for pedestrian or vehicular traffic. Nor has either governmental authority removed the numerous encroachments placed on the boulevard by plaintiffs. These encroachments include an underground sprinkler system, several pumps...