Clark v. City of Grand Rapids

• Decision Date: 06 October 1952
• Docket Number: No. 27,27
• Citation: 334 Mich. 646,55 N.W.2d 137
• Parties: CLARK et al. v. CITY OF GRAND RAPIDS et al.
• Court: Michigan Supreme Court

Page 137

55 N.W.2d 137

334 Mich. 646

CLARK et al. v. CITY OF GRAND RAPIDS et al.

No. 27.

Supreme Court of Michigan.

Oct. 6, 1952.

L. H. Grettenberger, Grand Rapids, for plaintiffs and appellants.

Fred N. Searl, City Atty., George R. Cook, Asst. City Atty., Grand Rapids, for defendant and appellee.

Before the Entire Bench, except NORTH, C. J.

BUTZEL, Justice.

Jacob Aman, a widower, in 1926 quitclaimed a 264 acre tract in Ottawa county about five miles west of Grand Rapids, Michigan, to the Grand Rapids Park and Boulevard Association, a private non-profit corporation. The provisions of such deed material here are as follows:

'This deed is given upon the following conditions:

'1. This conveyance is made with the understanding that the above described property shall be turned over to the City of Grand Rapids, Michigan, for Park and recreation purposes subject to the below conditions within one year from the date of this instrument or as soom thereafter as is practicable. 2. The grantor reserves a life estate in the following described portion of said land and premises, to-wit: the house, barn, and outbuildings and the land surrounding the same, comprising about ten acres and being 35 rods east and west and 45 rods north and south, lying in the southwest corner of said premises. 3. The grantor reserves the right to cultivate and plant any of the above described premises not theretofore improved or used by the second party for park and recreation purposes; and further reserves the right to cut and use such matured wood and timber as he may need for his own domestic use. 4. The grantee is to spend $2,000 in developing and improving the property within two years from the date hereof, said moneys to be spent under the supervision and in accordance with the wishes of the grantor. 5. The name to be given the premises conveyed shall be Aman Valley or some other name to be selected or approved by the grantor if he so desires. 6. The property hereby conveyed shall forever be used for Park and Boulevard purposes only, subject to the above conditions, and the trees and timber thereon shall be preserved and handled in accordance with the best forestry practices. 7. The grantor reserved the right to be buried upon the premises at a spot now designated by a stake, said spot to be dedicated as the grantor's final burial place and to be preserved, protected and maintained in a fitting and proper way by the party of the second part forever. 8. If said proposition is not accepted by the City of Grand Rapids, Michigan, as specified, said property shall revert back to said first party.

'Together with all and singular * * * To have and to hold that said premises to the said party of the second part and its successors and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, its successors and assigns forever.'

By deed of September 7, 1926, the corporation conveyed the property to the city of Grand Rapids, which by official proceedings accepted the land for park purposes. In a previous case involving different parties, land and facts, but involving a similar question, we held that the Grand Rapids Park and Boulevard Association had authority to convey premises to the city of Grand Rapids for park and boulevard purposes and that the city had the authority to accept the conveyance. Schneider v. City of Grand Rapids, 211 Mich. 399, 179 N.W. 285.

The testimony as to the use and care the park received through the years is voluminous. It appears from a careful examination thereof that during the first years the city of Grand Rapids maintained the park, it was greatly improved and well policed and supervised. At first Jacob Aman himself supervised the property. Later, under city supervision, numerous picnic, camping and playground facilities were installed and the park was landscaped, all at considerable expense to the city. When it failed to dedicate Jacob Aman's grave in accordance with the terms of his deed, his heirs protested, and on September 18, 1930, the property was formally dedicated as 'Aman Park,' with appropriate ceremonies. It was maintained and supervised during the 1930's, but for some eight years prior to the time on the trial of the instant case, no caretaker had been in charge of the park and no further improvements or repairs were made on the property.

Jacob Aman in 1911 had obtained a right of way through adjoining property as a convenient means of access to part of Aman Park. The right of way was not expressly assigned to the city. The city failed to maintain such way and on February 29, 1940, relinquished the same on the advice that that portion of the park would look more unspoiled and natural if all artificial improvements were discontinued. Soon thereafter, the manmade improvements in all the park fell into disrepair although the beautiful natural woodland remained and was a source of great delight to students of natural history who sought untouched conditions of plant life. After the removal of the caretaker, the park became often the scene of wild carousals, drinking, midnight campfires, auto races, et cetera. Policing authorities were confused as to the jurisdiction over property belonging to but outside of the city so no arrests were made. After a protest from the citizens adjoining the park, and upon being urged by plaintiffs' attorney, the city of Grand Rapids erected a barricade to keep out cars and to allow only people on foot to enter the park. Plaintiffs later sought to completely close the park to the public.

In 1949, the city of Grand Rapids began negotiations with the State conservation commission in an attempt to exchange Aman Park for some State land within the city limits of Grand Rapids. On July 14, the State conservation commission accepted the city's offer to deed the park to the State. In the memorandum filed with the conservation commission which was the basis for its action taken July 14, 1949, it was stated:

'The City of Grand Rapids has offered the above described property to the State of Michigan for such conservation uses, within the stipulations of the title, as the Department may deem feasible. * * * The City no longer desires to maintain this property as part of its city park system even though some development and improvement work has been done in the form of road and trail construction and reforestation. * * *

'According to the stipulations in the chain of title the donors require that this land shall be used for park purposes. * * * It appears among other things that this property would adapt itself as a demonstration area for the practice of forest management of southern Michigan woods in connection with the Forestry Division's program with the owners of woodlots in southern Michigan.' (Italics ours.)

After the conveyance to the State, the four children and only heirs of Jacob Aman, plaintiffs herein, proceeded to give notices of forfeiture and began the instant ejectment proceeding on April 1, 1950. The conservation commission, evidently uncertain as to the exact requirements of the deed, reconveyed to the city of Grand Rapids on September 1, 1950. The case was discontinued as to the defendant conservation commission but was continued as to the city of Grand Rapids, which had been a defendant on its own motion. It thus became the sole defendant.

Two questions are decisive here: Has there been a breach of a condition subsequent in the deed? Has there been an abandonment of the property by the public such as to work a reverter to the dedicators?

Plaintiffs contend that the eight 'conditions' set forth in the deed of Jacob Aman (quoted supra) are conditions subsequent, the non-fulfillment of any of which will work a reverter to the heirs. We do not find that such a construction is permissible under the laws of Michigan. An examination of the terms of the deed itself show how unlikely it is that such could have been meant. It is at once obvious that 'conditions' 2, 3 and part of 7, supra, are reservations and not conditions at all. It is also noteworthy that 'condition' 8, supra, is the only 'condition' embodying a reverter clause. The absence of a reverter clause is ordinarily controlling against construction of a provision as a condition. See Adams v. First Baptist Church, 148 Mich. 140, 111 N.W. 757, 11 L.R.A., N.S., 509. The fact that one 'condition' prescribes forfeiture is more significant when we consider that the other 'conditions' do not contain a forfeiture or re-entry clause. See Rhines v. Consumers' Power Co., 259 Mich. 236, 242 N.W. 898. Ordinarily the use of the word 'condition' in a deed does not indicate the existence of a condition subsequent without the presence of words of reverter.

It is well settled that conditions subsequent are not favored in law and are strictly construed. See Barrie v. Smith, 47 Mich. 130, 10 N.W. 168; Adams v. First Baptist Church, supra; County of Oakland v. Mack, 243 Mich. 279, 220 N.W. 801, and Central Land Co. v. City of Grand Rapids, 302 Mich. 105, 4 N.W.2d 485. The latter case is a striking example of the rule. There, land was given to the city of Grand Rapids with the express requirement that it be used for park purposes or it would revert to the grantor. We held that a lease by a city to drill for oil on that property did not constitute a breach where the use did not interfere with the main purpose of the park. For this reason, a provision in a deed as to use will be construed as a covenant rather than a condition subsequent, if possible. In doubtful cases, the writing will be held to be a covenant. See Smith v. Barrie, 56 Mich. 314, 22 N.W. 816, Blanchard v. Detroit, Lansing & Lake Michigan R. Co., 31 Mich. 43, and Detroit Union R. Depot & Station Co. v. Fort Street Union Depot Co., 128 Mich. 184, 87 N.W. 214. This is...