City of Kentwood v. Estate of Sommerdyke, Docket No. 109646
| Decision Date | 31 July 1998 |
| Docket Number | Docket No. 109646,No. 7,7 |
| Citation | 458 Mich. 642,581 N.W.2d 670 |
| Parties | CITY OF KENTWOOD, a Michigan municipal corporation, Plaintiff-Appellant, v. ESTATE OF Paul J. SOMMERDYKE (Charles B. and Luciana Waddell), Defendants-Appellees. Calendar |
| Court | Michigan Supreme Court |
In this case we granted leave to appeal to determine whether a highway created by use under the highway-by-user statute 1 is limited to the area of actual public use, or to the statutory four-rod width. If the latter, we then must determine whether the four-rod-wide rebuttable presumption is constitutional under the Michigan and United States Constitutions. In accordance with United States Supreme Court case law, we hold that the state has the authority to condition the retention of certain property rights on the performance of an affirmative act within a reasonable statutory period. To that end, we hold that the highway-by-user statute is constitutional and does not create a "taking" of property without just compensation.
The plaintiff, city of Kentwood, and defendants, Fernando Cioni and Charles and Luciana Waddell stipulated the following facts.
The city of Kentwood is a Michigan municipal corporation located in Kent County, Michigan. On May 20, 1994, the city brought a condemnation action pursuant to M.C.L. § 213.51 et seq.; M.S.A. § 8.265(1) et seq., the Uniform Condemnation Procedures Act. The city, by resolution dated March 21, 1994, determined that it was necessary for the health, safety, and welfare of the public to acquire certain property interests for the purpose of widening and improving 52nd Street in the city. On May 20, 1994, the city recorded a declaration of taking with the Kent County Register of Deeds.
One of the parcels affected by the condemnation action is the property purportedly owned by the defendants. The city took from the defendants' parcel a total of 64,610 square feet of land area. The city also acquired an additional thirty-foot wide temporary grading permit.
As of May 20, 1994, 52nd Street was improved on the south side of the centerline with a ten-foot wide asphalt street, together with an additional six-foot wide shoulder and ditch area. The property owners concede that the sixteen-foot area had become a highway by user as of May 20. 2 The city claimed, and the property owners denied, that the entire area within thirty-three feet of the centerline of 52nd Street had become a highway by user as of May 20. The land between sixteen and thirty-three feet from the centerline of 52nd Street is the area in dispute.
The property owners mowed the grass and planted trees within the area in dispute. However, the property owners did not maintain any structure within the disputed area. On October 25, 1979, Michigan Consolidated Gas Company applied for a highway permit from the Kent County Road Commission to lay a two-inch gas line within the area in dispute. The application was approved by the road commission on November 5, 1979. On November 9, 1983, the gas company applied for an additional permit to lay a 1-1/4 inch gas line along the defendants' property. This application was also approved by the road commission. These gas lines were installed twenty-six feet from the centerline of 52nd Street. On May 20, 1982, Wolverine Paving, Inc., applied for a highway permit to install a residential driveway approach at the defendants' property.
During all relevant times, 52nd Street was under the sole jurisdiction of the city, but the road commission acted as the city's agent for permit applications and maintenance purposes. The property owners have not pursued any action against the road commission or Michigan Consolidated Gas Company for trespass or damages relating to the installation of the gas lines.
On August 1, 1995, the city filed a motion for summary disposition, arguing that its highway right of way was presumptively thirty-three feet wide on either side of the centerline of 52nd Street. On August 7, 1995, the property owners filed a cross-motion in limine, asserting that a highway created by the highway-by-user statute is limited to the area of actual use. The trial court so held.
As a result of the trial court's ruling, the parties waived their rights to a jury trial and submitted the case for decision on the stipulated facts. The trial court issued its written opinion on March 20, 1997, holding that a highway created in accordance with the highway-by-user statute applies only to the extent of actual use. Rejecting the city's argument that the underground gas line expanded the width of the highway, the trial court found in favor of the property owners and awarded $26,210 as just compensation for the land taken.
The city appealed to the Court of Appeals and in this Court. This Court granted leave to appeal, bypassing the Court of Appeals, to address this jurisprudentially significant issue.
First, we must determine whether the state has the authority to create a statute that conditions the retention of a property right on performance of conditions that indicate a present intention to retain the property interest. If the state has the authority to do so, we next must determine whether the highway-by-user statute authorizes an unconstitutional "taking" of property without just compensation.
Appellees do not contest the establishment of a highway by use; rather, they contest the extent of the road to which the state is entitled. They claim that the state is entitled only to that portion of the highway actually used by the public. While the statute gives the state the right to assert ownership over the full four-rod width of a road, the appellees contend that to the extent it gives the state the right to property not actually used by the public, the statute creates an unconstitutional "taking" of property under the United States and Michigan Constitutions. Therefore, appellees assert, the state must pay just compensation for the portion of the road the state wishes to widen. We disagree.
Before we address appellees' arguments about the constitutionality of the highway-by-user statute, it is appropriate to consider whether the state has the power to provide that property rights of this character shall be extinguished if their owners do not assert a right to them by performing reasonable conditions within the ten-year period required by the statute. In accordance with case law from the United States Supreme Court, we hold that a state may condition the retention of a property right on performance of an affirmative action within a reasonable statutory period.
The highway-by-user statute, M.C.L. § 221.20; M.S.A. § 9.21 provides:
All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width [sixty-six feet], and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods [thirty-three feet] in width on each side of such lines.
The first version of the highway-by-user statute was enacted in 1838, the year after Michigan became a state. 1838 RS, tit. 6, chap. 4, § 42. While the statutory period for retention of the property right has changed over the years, the statute has remained substantially similar to the one enacted as first written.
At oral argument, the appellees asserted that because property is a fundamental right, the state cannot put the burden on the landowner to do an affirmative act in order to retain the property right. This assertion has been rejected by the United States Supreme Court.
In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the United States Supreme Court stated:
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an...
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