Benninghoff v. Tilton, No. 284637 (Mich. App. 11/12/2009), No. 284637.
| Decision Date | 12 November 2009 |
| Docket Number | No. 284637.,No. 284736. |
| Parties | MICHAEL BENNINGHOFF, LAURIE BENNINGHOFF, KRIS KALLEMBACH, DERMOT PUTNAM, GAIL KAPLAN, and FRIENDS OF 121ST AVENUE, Plaintiffs-Appellants, and GANGES TOWNSHIP, Plaintiff/Counter-Defendant-Appellant, v. JOHN D TILTON, MARY E TILTON and HAROLD A STEGE and SUZANNE B STEGE, as trustees of the HAROLD A STEGE TRUST, Defendants/Counter-Plaintiffs-Appellees, and ALLEGAN COUNTY ROAD COMMISSION, Defendant. MICHAEL BENNINGHOFF, LAURIE BENNINGHOFF, KRIS KALLEMBACH, DERMOT PUTNAM, GAIL KAPLAN, and FRIENDS OF 121<SUP>st</SUP> AVENUE, Plaintiffs-Appellees, and GANGES TOWNSHIP, Plaintiff/Counter-Defendant-Appellee, v. JOHN D TILTON, MARY E TILTON and HAROLD A STEGE and SUZANNE B STEGE, as trustees of the HAROLD A STEGE TRUST, Defendants/Counter-Plaintiffs-Appellants, and ALLEGAN COUNTY ROAD COMMISSION, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Allegan Circuit Court, LC No. 06-039595-CH.
Before: M. J. Kelly, P.J., and K. F. Kelly and Shapiro, JJ.
UNPUBLISHED
In this real property dispute, both plaintiffs and defendants appeal as of right various actions taken by the trial court. On appeal, the primary issues are whether the general public can obtain a prescriptive right to use private land as a public park or beach and whether the public has in fact established the right to use the land at the point where 121st Avenue intersects Lake Michigan as a public beach.1 We conclude that, under Michigan law, the general public can obtain prescriptive rights to use private land as a public beach. However, in this case, we conclude that there are questions of fact as to whether and when the public might have established a prescriptive right to use the end of 121st Avenue as a public beach. For that reason, we conclude that the trial court erroneously granted summary disposition on this claim. Similarly, because there are questions of fact as to whether and when the public might have obtained such a prescriptive right, the trial court erred to the extent that it concluded that defendants' inverse condemnation claim was untimely. The timeliness of defendants' inverse condemnation claim cannot be ascertained absent resolution of these fact questions. Accordingly, we reverse in part, affirm in part, and remand for further proceedings.
This case involves a dispute over the public's right to use the beach at the point where 121st Avenue intersects with Lake Michigan in Allegan County, Ganges Township. In the late nineteenth century, 121st Avenue, which was then called Plummerville Road, led up to the shoreline and then turned south to cross a creek that currently sits on the north end of the property owned by Defendants/Counter-Plaintiffs John D. Tilton and Mary E. Tilton. The road then proceeded into the small logging community of Plummerville. After the area was completely logged, the people of Plummerville abandoned the town. The bridge over the creek was eventually lost and Plummerville Road was thereafter shown to end in Lake Michigan. Eventually, the owners of the land on either side of 121st Avenue erected private residences.
The disputed road end was formerly under the jurisdiction of defendant Allegan County Road Commission (the Road Commission).2 However, during the course of this litigation, the Road Commission transferred jurisdiction to Ganges Township.
Defendants/Counter-Plaintiffs John D. Tilton, Mary E. Tilton, and the Harold A. Stege Trust (the Stege Trust) own properties adjacent to the point where 121st Avenue ends at the Lake Michigan shoreline. John and Mary Tilton own the property immediately south of 121st Avenue on Lake Michigan. At the north end of the Tilton's property there is a creek—called Plummerville Creek—that flows into Lake Michigan. The Stege Trust owns the roughly triangular shaped property to the north of 121st Avenue. Harold A. Stege and Suzanne B. Stege are the trustees for the Stege Trust. The Stege Trust's property narrows as it approaches Lake Michigan. As a result, the Stege Trust's property contains a very narrow strip of shoreline.3
The following map depicts the Tilton property—including the position of Plummerville Creek—and the Stege Trust property in relation to each other and 121st Avenue:
Plaintiffs Michael Benninghoff, Laurie Benninghoff, Kris Kallembach, Dermot Putnam, and Gail Kaplan are owners of lots near the disputed area of shoreline. They do not have direct access to Lake Michigan. As a result, they and their lessees use the beach at the end of 121st Avenue for swimming, picnicking and general recreation. Friends of 121st Avenue is an organization formed during the course of this litigation to support the general public's right to use the beach at the end of 121st Avenue for swimming, picnicking and general recreation.4
Although the suit underlying this litigation began in 2006, this is not the first time that the public's use of the end of 121st avenue resulted in litigation. In June 1962, Kenneth and Teresa Marshall sued Ganges Township, the Road Commission, and various private persons over the public's use of 121st Avenue.5 The case was assigned to Judge Raymond Smith.
In their complaint, the Marshalls alleged that they purchased the land that was to the north of the creek that is currently on the Tilton's property and which included the end of 121st
Avenue. The Marshals further alleged that, in the Spring of 1960, Ganges Township or the Road Commission cleared 121st Avenue westward from the point where it turned south all the way to the beach and made a parking area right in front of the Marshalls' home. The Marshalls stated that the general public used the road and parking area to access the beach and as a "lover's lane." The Marshalls also indicated that they complained to law enforcement agencies, but stated that such complaints proved "no deterrent to drinking parties in plaintiffs' front yard and on their beach during daylight hours and evenings into the wee hours of the morning."
The Marshalls also alleged that, because neither Ganges Township nor the Allegan County Road Commission maintained the "road" in the preceding thirty years, the disputed section was not a public road. For that reason, the Marshalls asked the trial court to decree that the portion of 121st Avenue west of the point where the road turns south is private property and that neither Ganges Township nor the Road Commission has any right or title to the property. The Marshalls explained that a contrary ruling would undermine their enjoyment of their land:
That the value of land purchased by plaintiffs is of little value if the road is a public one from the point where [the] road turns south across the creek west to the beach, as the beach in front of plaintiffs' house would be public beach with no privacy for plaintiffs, and the home built by plaintiffs will have little value as a summer home.
In his March 15, 1963 opinion, Judge Smith noted that whether the disputed portion of 121st Avenue was a public road depended on whether it had been impliedly dedicated to the public. Judge Smith noted that dedication must first be implied by public use:
The dedication, if any, must be implied from the public use of the property under [MCL 221.20]. The record discloses that the public used the road to travel to Plummerville and later to the fish house which remained for a number of years before it was destroyed by fire. There is also evidence that the public used the road to haul gravel from the beach, to launch their boats, and to fish for smelt in the early Spring. A somewhat more extensive use was made by the public to provide access to the beach for picnics, outings and bathing. For these purposes the public used the beach which would have been the extension of the road in a straight line westerly. That notice was made of public use of the road is evidenced by the attempts to discourage such use and the persistence of public officials to keep the road open. Naturally the road was not intended for year around use so that the work that was done on it was only commensurate with its limited use, until 1960, when it appears that the Township of Ganges desired to dispel all doubt and ordered the work which resulted in these suits. In the opinion of the court the public use was sufficient to put private interests on notice.
Judge Smith then explained that, since at least 1946, the Allegan County Road Commission had worked the road section at issue. Judge Smith stated that the work done on the road was to "allow access to the beach," which he noted was the "desired goal of the public users." Because the public had used the road and the Road Commission had accepted the road through improvements and maintenance, Judge Smith concluded that the road was dedicated to the public by use.
On March 27, 1963, Judge Smith signed a partial judgment in favor of Ganges Township and the Allegan County Road Commission. The judgment dismissed the Marshalls' suit against Ganges Township and the Road Commission and decreed that "the road commonly referred to as Plummerville Road is a public highway" through "to Lake Michigan."
The present litigation has its origins in the efforts by the Tiltons and Steges to limit the public's use of the beach at the end of 121st Avenue. The Tiltons and Steges have acknowledged that 121st Avenue is a public highway that ends in Lake Michigan and have recognized that this gives the general public the right of ingress and egress to Lake Michigan. However, the Tiltons and Steges have also sought the help of municipal authorities in restraining the public from using the beach for purposes other than ingress and egress to Lake Michigan. The Tilton and Stege...
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