Ambs v. Kalamazoo County Road Com'n, Docket No. 230107.

• Decision Date: 15 May 2003
• Docket Number: Docket No. 230107.
• Citation: 662 N.W.2d 424,255 Mich. App. 637
• Parties: Michael L. AMBS, Joann L. Ambs, Harry B. Miller, Helen L. Miller, Billy L. Wallace And Virginia V. Wallace, Plaintiffs-Appellants, v. KALAMAZOO COUNTY ROAD COMMISSION and Kalamazoo Board of County Road Commissioners, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

662 N.W.2d 424

255 Mich. App. 637

Michael L. AMBS, Joann L. Ambs, Harry B. Miller, Helen L. Miller, Billy L. Wallace And Virginia V. Wallace, Plaintiffs-Appellants, v. KALAMAZOO COUNTY ROAD COMMISSION and Kalamazoo Board of County Road Commissioners, Defendants-Appellees.

Docket No. 230107.

Court of Appeals of Michigan.

Submitted February 18, 2003, at Detroit.

Decided March 13, 2003, at 9:00 a.m.

Released for Publication May 15, 2003.

Wright & Phillips, P.C. (by Julie K. Phillips), Portage, for the plaintiffs.

Lewis Allen, P.C. (by Anne M. Fries), Kalamazoo, for the defendants.

Before: COOPER, P.J., and BANDSTRA and TALBOT, JJ.

BANDSTRA, J.

Plaintiffs Michael L. and Joann L. Ambs, Harry B. and Helen L. Miller, and Billy L. and Virginia V. Wallace appeal as of right from the trial court's opinion and order declaring Cooks Drive, a one-quarter mile stretch of dead-end road in Comstock Township, to have been abandoned by defendants Kalamazoo County Road Commission and Kalamazoo Board of County Road Commissioners and, therefore, no longer a public road.¹ We affirm.

I. Basic Facts and Procedural History

Before construction of I-94 in 1951, Cooks Drive was a public road that extended approximately one-half mile north from ML Avenue to what is presently known as L Avenue.² After being severed by the construction of the interstate, that portion of Cooks Drive located north of the new highway was abandoned by defendants through a resolution adopted and recorded pursuant to the procedures set forth in M.C.L. § 224.18. Although no similar resolution abandoning Cooks Drive south of the interstate exists in the county records, it is not disputed that after 1951 defendants no longer certified that portion of Cooks Drive for purposes of receiving state maintenance funds and performed little, if any, maintenance along that strip of road.

Following construction of I-94, the property abutting Cooks Drive south of the highway³ consisted solely of wooded or open fields until February 1969 when plaintiffs Harry and Helen Miller broke ground on construction of a new home, despite being informed by defendants that Cooks Drive had been decertified and would not be maintained. Plaintiffs William and Virginia Wallace, with similar knowledge, constructed their home on Cooks Drive in April 1988.⁴

In September 1989, the Wallaces and the Millers joined with Lon and Lou Ann Grovers, who owned a large, vacant parcel located at the end of Cooks Drive near the highway right-of-way, in seeking a variance from a Comstock Township ordinance that prohibits construction of a single-family home on property that does not have frontage on a publicly maintained road. After learning that defendants' considered Cooks Drive to have been abandoned and no longer a public road, the Comstock Township Zoning Board of Appeals denied the variance requests.

In July 1994, the Grovers sold their parcel on Cooks Drive to plaintiffs Michael and Jo Ann Ambs. After the Ambses' request for a similar variance was peremptorily denied, plaintiffs met with defendants' representatives to discuss recertification of Cooks Drive. At that time plaintiffs were informed that unless they could prove that Cooks Drive remained a public road, they would have to share in the cost of bringing the road up to current county standards before it would be recertified. Relying on the absence of any record indicating that the southerly portion of Cooks Drive had been formally abandoned after its acceptance into the county road system under the McNitt Act⁵ in 1935, plaintiffs claimed that Cooks Drive remained a public road and, therefore, declined to participate in the financing of any improvements. The instant suit, seeking an order declaring Cooks Drive to be a public road and requiring recertification, followed.

Before trial, plaintiffs moved to preclude defendants from asserting abandonment of Cooks Drive under the common-law theory of abandonment by nonuse, arguing that M.C.L. § 224.18 provides the exclusive means by which a board of county road commissioners may affirmatively abandon a road. Plaintiffs argued, among other things, that although the common-law theory of abandonment by nonuse may remain viable as a tool to quiet title to a roadbed in favor of a private person or organization, it was clear that by enacting and repeatedly amending M.C.L. § 224.18 to afford additional protections to private interests, the Legislature intended to abrogate use of that theory by governmental entities such as defendants. In support of this claim, plaintiffs noted that in no case recorded since the enactment of M.C.L. § 224.18 in 1909,⁶ had the theory of common-law abandonment by nonuse been asserted by a governmental entity. The trial court, however, denied that motion, stating:

It's very disappointing that a body that's supposed to debate public policy... doesn't even mention what they're doing with a doctrine that's been in existence for a hundred years. So I'm waiting for the roof to open and the light to shine through and enlighten me. But I don't think it's going to happen. So, hence, I think you have a controversy.

True, the cases are in the context of private citizens; but does that necessarily mean that that theory only applies to private citizens? I don't think so.

The concept came up in the context of a private citizen, but the theory is a theory. And if the Legislature said, okay, we have decided that it's better public policy that the road commission or governmental entities follow this specific procedure to the exclusion of all others, they could have said so. They didn't say it; so, consequently, in Kalamazoo County at 10:00 a.m. on February 21 of 2000, we're addressing the question.

* * *

But until some court says that common law abandonment is no longer a viable option—and when I say court, I mean some appellate court—then I'm not going to declare myself to be the Legislature and say, here, I'm going to step in and fill in the blanks that they left; and I'm going to ignore all these cases that recognize the common law doctrine; and I today, am going to decide that I'm going to stand all this law on its head. I'm not going to do that.

So I guess that's a simple way of telling you that the ... motion to strike a defense, I'm not going to strike it because it's viable, according to the reported authorities.⁷

Defendants were thus permitted at the ensuing trial to present both evidence and argument concerning common-law abandonment by nonuse. Following closing arguments, the trial court found that Cooks Drive became a public road upon acceptance into the county road system under the McNitt Act in 1935, and if not then, by highway by user after ten years of public use and maintenance under M.C.L. § 221.20a. However, relying on the common-law theory of abandonment by nonuse, the trial court further concluded that defendants had abandoned Cooks Drive as a public road "following its bisection by I-94." It is from this latter decision that plaintiffs now appeal.

II. Common-Law Abandonment and M.C.L. § 224.18

Plaintiffs argue that the trial court erred in failing to conclude that the procedures set forth in M.C.L. § 224.18 provide the exclusive means by which defendants could affirmatively abandon Cooks Drive. In doing so, plaintiffs first assert that while the common-law theory of abandonment by nonuse may remain viable as a tool to quiet title to a roadbed in favor of a private person or organization, it is clear that by enacting and repeatedly amending M.C.L. § 224.18 to afford additional protections to private interests, the Legislature intended to deny use of that theory by governmental entities. We disagree.

Whether the procedures set forth in M.C.L. § 224.18 provide the exclusive means by which defendants could affirmatively abandon Cooks Drive is a matter of statutory interpretation and is, therefore, a question of law reviewed de novo. Etefia v. Credit Technologies, Inc., 245 Mich.App. 466, 469, 628 N.W.2d 577 (2001). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature, Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998), and the first criterion in determining such intent is the specific language of the statute, In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v. Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002).

At the time defendants claim to have abandoned Cooks Drive under the common-law theory of abandonment by nonuse, specifically, when that road was bisected by construction of I 94 in the early 1950s,⁸ M.C.L. § 224.18 provided, in relevant part:

The board of county road commissioners of any county which has adopted the county road system is hereby authorized and empowered to, at any time, either relinquish jurisdiction of or absolutely abandon and discontinue any county road, or any part thereof, by a resolution adopted by majority vote. The vote of the county road commissioners in respect to either such relinquishment of jurisdiction or absolute abandonment and discontinuance shall be taken and entered, and notice thereof be given, in the same manner as required in this section, in cases in which county roads are adopted.... Said board shall, at the time of the passage of any resolution to absolutely abandon and discontinue any portion of any highway under its jurisdiction, determine in said resolution that it is to the best interests of the public that said highway or portion thereof shall be absolutely abandoned and discontinued. Said board shall cause a true copy of every resolution or other proceeding, containing an accurate description of the lands comprising the highway or portion thereof which has been absolutely abandoned and discontinued thereby, to be recorded in the office of the register of deeds for the county...