Boone v. Antrim County Bd. of Road Com'rs

• Citation: 442 N.W.2d 725,177 Mich.App. 688
• Decision Date: 27 July 1989
• Docket Number: Docket No. 106387
• Parties: Daniel M. BOONE, Kay D. Boone, Leonard Franseen, Karen J. Franseen, J.W. Unger, Katherine M. Unger, Richard Schoenberg, Edith Schoenberg, Donald F. Laramie, Rose M. Laramie, Delbert L. Griffin, and Twila J. Griffin, Plaintiffs-Appellants, v. ANTRIM COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 725

442 N.W.2d 725

177 Mich.App. 688

Daniel M. BOONE, Kay D. Boone, Leonard Franseen, Karen J Franseen, J.W. Unger, Katherine M. Unger, Richard Schoenberg, Edith Schoenberg, Donald F. Laramie, Rose M Laramie, Delbert L. Griffin, and Twila J. Griffin Plaintiffs-Appellants, v. ANTRIM COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellee.

Docket No. 106387.

Court of Appeals of Michigan.

Submitted March 14, 1989.

Decided June 19, 1989.

Released for Publication July 27, 1989.

Daniel M. Boone, Bellaire, pro se.

James G. Young, Bellaire, and Law, Weathers & Richardson, P.C. by John M. Huff, Grand Rapids, for defendant-appellee.

Before WEAVER, P.J., and MURPHY and GRIFFIN, JJ.

WEAVER, Presiding Judge.

Plaintiffs appeal as of right from a circuit court order dismissing their complaint for no cause of action. We affirm.

I

Plaintiffs sought to subdivide their real property known as the Plat of Four-Way Lodge, which property extends to the middle of East Torch Lake Drive in Antrim County. On appeal, it is the defendant road commissioners' plat requirement of a fifty-foot half-width road right-of-way which plaintiffs dispute. At trial, plaintiffs and defendant stipulated to the following facts upon which the trial court relied in rendering its decision.

East Torch Lake Drive is a "county primary road ... directly adjacent to the Plat of Four-Way Lodge" and is "the only public road" providing access to the plat. Before approval of the plat, East Torch Lake Drive had a statutorily presumptive half-width right-of-way of thirty-three feet, there being "no previous deed, dedication or court proceeding which formally established the right-of-way."

In order to get subdivision plat approval, the plat proprietors (plaintiffs) dedicated a fifty-foot half-width right-of-way to the public because this was a stated road commission requirement. Such requirement arose under rules lawfully promulgated by the road commission and applied uniformly pursuant to Sec. 183 of the Subdivision Control Act, 1967 P.A. 288, M.C.L. Sec. 560.101 et seq.; M.S.A. Sec. 26.430(101) et seq., to all plats involving primary county roads. Plaintiffs would not have dedicated the fifty-foot half-width right-of-way to the public had it not been asserted as a requirement to obtain plat approval.

After hearing the parties' arguments based on their stipulated facts, the trial court rendered its findings and a decision of no cause of action. Plaintiffs appealed.

II

Under the parties' stipulated facts, East Torch Lake Drive had not previously undergone a formal dedication to public use. However, such stipulation would not foreclose a determination that the road may have been previously dedicated to public use at common law under the doctrine of "highway by user."

If the road had been previously dedicated by user at common law, then we would agree with plaintiffs' argument that they were not required to include their portion of East Torch Lake Drive in the subdivision plat proposal and dedicate a fifty-foot half-width right-of-way along the road. However, this is an issue which should have been resolved before plaintiffs agreed to include the road on their plat. Plaintiffs' acceptance of the road commission requirement to include the road on their plat bound them to the rules lawfully promulgated pursuant to the Subdivision Control Act.

Necessity for compliance with the road commission rules (inclusion of the road and dedication of the fifty-foot right-of-way) promulgated pursuant to M.C.L. Secs. 560.105(c), ¹ 560.181, ² and 560.183; ³ M.S.A. Secs. 26.430(105)(c), 26.430(181), and 26.430(183), is only triggered where abutting roads falling within the proprietor's land have "not previously been dedicated to public use." (Emphasis added.) M.C.L. Secs. 560.134 ⁴ and 560.136; ⁵ M.S.A. Secs. 26.430(134) and 26.430(136). Therefore the need to follow commission rules mandating inclusion of the road and the fifty-foot right-of-way would have been obviated by proof, before plaintiffs agreed to include the road on their plat, that a previous dedication to public use had occurred.

"Dedication" is an appropriation of land to some public use made by the owner of the fee and accepted for such use by or on behalf of the public. DeWitt v. Roscommon Co. Rd. Comm., 45 Mich.App. 579, 581, 207 N.W.2d 209 (1973). Dedication may occur by statute or at common law, with common-law dedication creating not fee title but only an easement in the public. Gunn v. Delhi Twp., 8 Mich.App. 278, 282, 154 N.W.2d 598 (1967). There need be no formal dedication of public streets, and dedication may occur without a grant or even written words. DeWitt, supra; Sharkey v. Petoskey, 30 Mich.App. 640, 644, 186 N.W.2d 744 (1971). See also Petoskey Chamber of Commerce v. Petoskey, 372 Mich. 483, 127 N.W.2d 363 (1964). However, there must be a clear and positive intent to dedicate, as unequivocally demonstrated by the actions of the owners. Laug v. Ottawa Co. Rd. Comm., 37 Mich.App. 757, 761, 195 N.W.2d 336 (1972), lv. den. 387 Mich. 767 (1972). Chene v. Detroit, 262 Mich. 253, 258, 247 N.W. 172 (1933). If intent is established, there must also be either an express declaration or some acts by a public authority indicating acceptance. DeWitt, supra 45 Mich.App. at 582, 207 N.W.2d 209; Chene, supra; Sharkey, supra 30 Mich.App. at 644, 186 N.W.2d 744.

Common-law dedication may occur under the "highway-by-user" statute, M.C.L. Sec. 221.20; M.S.A. Sec. 9.21. Mere use of a road, however, is insufficient to make it a public highway. Indian Club v. Lake Co. Rd. Comm'rs, 370 Mich. 87, 89, 120 N.W.2d 823 (1963). Such use by the public must be open, notorious, and exclusive for a period of eight or ten consecutive years, depending upon when the highway came into existence. Id.; DeWitt, supra 45 Mich.App. at 582, 207 N.W.2d 209; Dryfoos v. Maple Grove Twp., 363 Mich. 252, 255, 109 N.W.2d 811 (1961). This use must also include an acceptance by public authorities with the way taken and maintained as other highways. Indian Club, supra 370 Mich. at 90, 120 N.W.2d 823. The acceptance need only be such as to keep the road in a reasonably passable condition. Id. at 91, 120 N.W.2d 823.

The highway-by-user statute applies a presumptive half-width right-of-way of thirty-three feet. However, this presumption may be rebutted upon proof that the width of the easement was expressly or impliedly restricted. Eyde Bros. Development Co. v. Eaton Co. Drain Comm'r, 427 Mich. 271, 297-298, 398 N.W.2d 297, 398 N.W.2d 297 (1986), reh. den. 428 Mich. 1206 (1987); St. Ignace v. McFarlane, 45 Mich.App. 81, 84, 206 N.W.2d 226 (1973); Laug, supra at 37 Mich.App. 766, 195 N.W.2d 336. Under the highway-by-user doctrine, therefore, such easement could be proven less than the presumed thirty-three feet, depending on the facts of each case.

In interpreting the provisions of the Subdivision Control Act at issue, our aim is to give effect to legislative intent. Hiltz v. Phil's Quality Market, 417 Mich. 335, 343, 337 N.W.2d 237 (1983). In assessing legislative intent, the statute is to be construed as a whole, in light of history and common sense, and its provisions so construed as to harmonize rather than conflict with each other. Arrowhead Development Co. v. Livingston Co. Rd. Comm., 413 Mich. 505, 516, 322 N.W.2d 702 (1982). Every word, sentence, and section of a statute should be given effect, if possible, in an effort to arrive at a harmonious and consistent interpretation of the act as a whole. Workman v. DAIIE, 404 Mich. 477, 507, 274 N.W.2d 373 (1979); Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 738, 330 N.W.2d 346 (1982).

Here, the commission was authorized to require compliance with its duly promulgated rules in order to carry out the provisions of the Subdivision Control Act. M.C.L. Sec. 560.105(c); M.S.A. Sec. 26.430(105)(c). However, the Subdivision Control Act specifically exempts from plat inclusion any previously dedicated highways, including highways dedicated by user at common law. M.C.L. Secs. 560.134 and 560.136; M.S.A. Secs. 26.430(134) and 26.430(136). Therefore it must be concluded that the Legislature did not intend for such previously dedicated highways to come within the road commission's statutory jurisdiction. Workman, supra. If East Torch Lake Drive had undergone previous common-law dedication as a highway by user, the commission would have been unauthorized to make final plat approval contingent upon inclusion of the plaintiffs' portion of the road. Accordingly, the road would have been merely "adjacent" to the plat and would not have been a highway "required to be shown on a plat." M.C.L. Sec. 560.181; M.S.A. Sec. 26.430(181). Therefore the commission would not have been empowered to require compliance with its general rule of a fifty-foot right-of-way dedication under authority of M.C.L. Sec. 560.183; M.S.A. Sec. 26.430(183), since such requirement would conflict rather than harmonize with the overall statutory scheme setting forth a specific exception for which plaintiffs would have qualified. Arrowhead, supra.

A review of the record and briefs suggests that a dedication to public use may have occurred, not statutorily but at common law, before plaintiffs undertook to enter the plat approval process in 1976. ⁶ However, because plaintiffs agreed to include the road on their plat, the trial court correctly found that plaintiffs were required to dedicate the fifty-foot half-width right-of-way. CPW Investments No. 2 v. City of Troy, 156 Mich.App. 577, 582-583, 401 N.W.2d 864 (1986), lv. den. 428 Mich. 912 (1987). ⁷ Accordingly, the trial court's finding of no cause of action was not clearly erroneous. MCR 2.613(C); Laug, supra 37 Mich.App. at 760, 195 N.W.2d 336.

Similarly, the trial court correctly found the holding in Arrowhead, supra, unsupportive of plaintiffs' position because Arrowhead dealt with off-site construction. In Arrowhead, the Michigan Supreme Court...