Christiansen v. GERRISH TP.

• Decision Date: 04 April 2000
• Docket Number: Docket No. 211216.
• Citation: 239 Mich. App. 380,608 N.W.2d 83
• Parties: Russell G. CHRISTIANSEN and Evelyn A. Christiansen, Plaintiffs-Appellants, v. GERRISH TOWNSHIP, Roscommon County Road Commission, and Michigan Department of Treasury, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

608 N.W.2d 83

239 Mich. App. 380

Russell G. CHRISTIANSEN and Evelyn A. Christiansen, Plaintiffs-Appellants, v.GERRISH TOWNSHIP, Roscommon County Road Commission, and Michigan Department of Treasury, Defendants-Appellees.

Docket No. 211216.

Court of Appeals of Michigan.

Submitted October 5, 1999, at Lansing.

Decided January 11, 2000, at 9:25 a.m.

Released for Publication April 4, 2000.

Carey & Jaskowski, P.L.L.C.(by William L. Carey and Kathleen Kaufman), Grayling, for Russell G. and Evelyn A. Christensen.

Hess & Hess, P.C. (by Scott L. Hess), Roscommon, for Gerrish Township.

Law Offices of Deamud & Bennett (by James R. Deamud), Prudenville, for Roscommon County Road Commission.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and James E. Riley, Assistant Attorney General, for Department of Treasury.

Before: HOEKSTRA, P.J., and McDONALD and METER, JJ.

METER, J.

In this action under the Subdivision Control Act, M.C.L. § 560.101 et seq.;MSA 26.430(101)et seq.,plaintiffs appeal as of right from an order denying their request to vacate a portion of road next to their property.We affirm.

Factual Background

Plaintiffs' property, located in the Whittington Park subdivision of Gerrish Township and Roscommon County, borders Higgins Lake on its northern edge.A road—Grand Boulevard—runs along the western edge of the property toward the lake.Grand Boulevard is approximately 505 feet long.¹Although the lower segment (approximately 280 feet) of the road is paved, Grand Boulevard remains undeveloped from about the mid-point of plaintiff's property to the shore of Higgins Lake.

In August 1996, plaintiffs filed a complaint in which they alleged, among other things, that although the entire length of Grand Boulevard was set forth in the 1903 plat of the Whittington Park subdivision and thereby offered to be dedicated for public use, no public entity had ever accepted the offer of dedication either formally (by resolution or ordinance) or informally (through public improvements or use) with respect to the undeveloped portion of the road.Plaintiffs thus argued that the undeveloped portion of the road should be vacated and that they should be given title to the land.

Following a bench trial, the trial court denied plaintiffs' request to vacate the northern portion of Grand Boulevard, indicating that (1) the offer of dedication had been formally accepted by the Roscommon County Road Commission under a 1940 McNitt resolution² that specifically referred to Grand Boulevard; (2) even though the 1940 McNitt resolution referred to Grand Boulevard as being only 472 feet long, the circumstances indicated that the road commission meant to accept the entire length of the road; (3) the span of thirty-seven years between the offer of dedication in 1903 and the acceptance in 1940 was not so long that the offer was presumed withdrawn, given the sparse population in the area and the corresponding lack of the need for quick acceptance; and (4) that even disregarding any formal acts of acceptance, the offer of dedication was nevertheless presumed accepted under M.C.L. § 560.255b;MSA 26.430(255b), which indicates that offers of dedication for public use shall be presumed accepted ten years after the plat is first recorded, as long as certain acts of withdrawal have not taken place.

Dedication of Land for a Public Purpose

The general rule regarding the dedication of land for a public purpose was set forth by the Michigan Supreme Court in Kraus v. Dep't of Commerce,451 Mich. 420, 424, 547 N.W.2d 870(1996).As stated in Kraus, a valid dedication requires two elements: (1) a recorded plat clearly offering the land for public use and (2) a subsequent acceptance of the offer by a public authority.Id.The acceptance must be timely, and it must be accomplished by a public act "`either formally confirming or accepting the [offer of] dedication, and ordering the opening of such street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation.' "Id.,quotingTillman v. People,12 Mich. 401, 405(1864).In the instant case, plaintiffs do not dispute that the disputed portion of Grand Boulevard was properly offered for public use in a recorded plat.Rather, they focus on element 2, arguing that a proper public authority did not timely accept the offer of dedication.

Acceptance by the Township

Plaintiffs first argue that the Roscommon County Road Commission could not have accepted the offer of dedication by way of the 1940 McNitt resolution because Gerrish Township did not initially accept the offer.They essentially argue that before a county could take over a road under the McNitt act in 1940, the road first must have been accepted as a township road.This argument presents a question of law.We review questions of law de novo.In re Lafayette Towers,200 Mich.App. 269, 273, 503 N.W.2d 740(1993).

In support of their argument, plaintiffs cite Salzer v. State Treasurer,48 Mich.App. 34, 39, 209 N.W.2d 849(1973), in which this Court stated:

A county road commission has no power to incorporate a private street into the county road system.Therefore on retrial if the facts disclose Montgomery Boulevard [which had been offered for dedication in a recorded plat] was a private road by reason of the township's failure to accept it, the county road commission could not incorporate the boulevard into the county road system at any date.On the other hand in the event the facts disclose Montgomery Boulevard was accepted by the township and thereby became a public road, only then must it be ascertained whether the road commission's resolution ... was timely....

We agree that this language supports plaintiffs' position in the instant case, because there was no evidence that Gerrish Township had ever accepted Grand Boulevard as a public road.We conclude, however, that this language represents a misinterpretation of the law, and we therefore reject it.

As authority for the proposition that a road must first have been accepted by a township in order to be accepted by a county, the Salzer Court cited the McNitt act, 1931 PA 130.While it is true that the McNitt act referred to the taking over of township roads by counties, it also stated that "all dedicated ³ streets and alleys in recorded plats and outside of incorporated cities and villages shall be taken over and become county roads."See former M.C.L. § 247.2; MSA 9.142 and 1931 PA 130, as amended by1935 PA 132.Accordingly, the act provided for the taking over by a county of streets designated as public in recorded plats, without the requirement that the streets be first accepted by the township.Therefore, a county could accept a road as public under the McNitt act even if the relevant township had not previously accepted it, as long as the road was offered for public use in a recorded plat.⁴Cf.Missaukee Lakes Land Co. v. Missaukee Co. Rd. Comm.,333 Mich. 372, 378, 53 N.W.2d 297(1952)(private road that had not been offered for dedication in a recorded plat could not be taken over by county under the McNitt act), and seeKraus v. Gerrish Twp.,205 Mich.App. 25, 46, 517 N.W.2d 756(1994), affirmed in part and remanded in part on other grounds451 Mich. 420,547 N.W.2d 870(1996)(distinguishing a "private" road from "a dedicated street or alley within the meaning of the McNitt act").This conclusion accords with the Supreme Court's Kraus opinion, in which the Court indicated that offers to dedicate could be accepted by a township or county and in which the Court analyzed whether a county had sufficiently accepted several roads, even though there had been no acceptance of the roads by the relevant township.Kraus v. Dep't of Commerce, supra at 424, 432-438, 547 N.W.2d 870.The relevant question in the instant case, therefore, is whether Roscommon County sufficiently accepted Grand Boulevard as a public road, even though there had been no prior acceptance by Gerrish Township.

Acceptance by the County

Plaintiffs argue that the Roscommon County Road Commission did not accept the offer of dedication, despite the 1940 McNitt resolution, because (1) a McNitt resolution, by itself, is insufficient to establish acceptance, and there was no evidence of any informal acts of acceptance; (2) even if a McNitt resolution, alone, is sufficient to establish acceptance, the length of time between the offer and the resolution in the instant case caused the offer to lapse; and (3) even if a McNitt resolution, alone, is sufficient to establish acceptance, part of Grand Boulevard must nonetheless be vacated because the 1940 resolution referred to the road as being only 472 feet long, when the road, in actuality, is approximately 505 feet long.

We first address whether the 1940 McNitt resolution, which specified the length of Grand Boulevard as 472 feet, evidenced an intent to take over the entire length of the road.This issue concerns a factual finding, which we review for clear error.SeeVivian v. Roscommon Co. Bd. of Comm'rs,164 Mich.App. 234, 238, 416 N.W.2d 394(1987), aff'd.433 Mich. 511, 446 N.W.2d 161(1989)."A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed."Id. at 238-239, 416 N.W.2d 394.After reviewing the record, we are not left with a definite and firm conviction that the trial court erred in concluding that the 1940 resolution purported to accept the entire length of Grand Boulevard.Defendant's surveyor indicated that the measurement of 472 feet was likely made by a nontechnical person and that such a person could have obtained the 472 feet measurement by adding up the map dimensions on both sides of the road and dividing by two.The trial court accepted this potential explanation, noting that "the record [was] devoid of any logical explanation to explain the ...