Comstock v. Wheelock

• Decision Date: 12 August 1975
• Docket Number: Docket No. 20120
• Citation: 234 N.W.2d 448,63 Mich.App. 195
• Parties: Burton COMSTOCK and Ezra Ramoie, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Ted J. WHEELOCK et al., Defendants-Appellees. 63 Mich.App. 195, 234 N.W.2d 448
• Court: Court of Appeal of Michigan — District of US

Page 448

234 N.W.2d 448

Burton COMSTOCK and Ezra Ramoie, on behalf of themselves and all others similarly situated Plaintiffs-Appellants, v. Ted J. WHEELOCK et al., Defendants-Appellees.

Docket No. 20120.

63 Mich.App. 195, 234 N.W.2d 448

Court of Appeals of Michigan.

Aug. 12, 1975.

Released for Publication Nov. 4, 1975.

[63 MICHAPP 196] Michael J. Houlihan, Pros. Atty., Traverse City, for plaintiffs-appellants.

Michael D. Lewis, Traverse City, for defendants-appellees.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

This is an appeal granted by this Court upon application for delayed appeal by plaintiffs from a grant of summary judgment in favor of defendants because plaintiffs failed to state a cause of action in their complaint.

On July 21, 1972 plaintiffs filed a complaint which alleged that defendants had constructed a boathouse on property owned by defendants on Long Lake which had been used by plaintiffs and the general public for swimming, boating, fishing and snowmobiling and generally for access to Long Lake for a period in excess of 70 years. From the description it appears that the lot is approximately 35 feet wide and 250 feet long. Construction was alleged to have begun in the fall of 1971, and in the spring of 1972 defendants placed signs upon the property which forbid the public from entering upon it. Plaintiffs seek to (1) halt defendants' construction upon the parcel, (2) to halt any interference with the plaintiffs' or the public's use of the property for access to the lake and (3) to enjoin defendants to remove the already existing structure. The suit was based upon two counts. The first appears to be based on a theory of prescriptive easement and the second is based on the theory that the property had been used and dedicated as [63 MICHAPP 197] a public highway under the 'highway by user' statute, M.C.L.A. § 221.20; M.S.A. § 9.21. Although the suit was initiated by Michael J. Houlihan, the prosecuting attorney of Grand Traverse County, neither the people of the county nor the people of the State of Michigan were made parties to the suit.

The trial court issued a temporary restraining order enjoining further construction and defendants' interference with the public's access to Long Lake. The defendants then answered and admitted that the Township of Long Lake had erected a bathhouse on the property in the past, had employed a lifeguard, had taught swimming classes and that 'at their request the Grand Traverse County Road Commission occasionally sprayed brine upon part of the property in question and occasionally graded part of it . . .'. Defendants further asserted several defenses and counterclaimed asking the court to enjoin plaintiffs and various unnamed persons from entering defendants' property without permission.

On December 13, 1972 Michael J. Houlihan entered an appearance as attorney for the people in his capacity as prosecuting attorney. He filed a motion to intervene on behalf of the people of the State of Michigan. On December 14, defendants filed a motion for accelerated judgment and for summary judgment, citing as grounds the reasons stated in their answer under 'affirmative defenses'. Among the grounds listed were laches, failure to state a claim upon which relief can be granted, lack of a factual dispute, and lack of standing to bring the action.

A hearing was held on August 17, 1972 to determine whether a preliminary injunction should issue or the restraining order should be dissolved. [63 MICHAPP 198] Another hearing was held on September 14, 1973 on the people's motion to intervene and on defendants' motion for accelerated and/or summary judgment.

On October 12, 1973 the court filed a decision denying the motion to intervene and granting summary judgment to defendants because plaintiffs failed to state a cause of action in their complaint. In brief, the court found that public and not private rights were asserted by plaintiffs, that the only possible public right in the property would be established under M.C.L.A. § 221.20; M.S.A. § 9.21; and that defendants deserved to prevail as a matter of law. As a second ground of decision, the court stated that plaintiffs were barred by laches.

Plaintiffs raise the issue of whether the trial court erred by granting summary judgment against plaintiffs who claimed that public rights vested in a parcel of land on Long Lake, Grand Traverse County, when the complaint alleged long term public use for recreational purposes and occasional maintenance by the county road commission.

The plaintiffs assert that the complaint alleges that public rights in defendants' property had vested under M.C.L.A. § 221.20; M.S.A. § 9.21, the 'highway by user' statute. The complaint alleges use by the public and by plaintiffs for a period exceeding the 10-year statutory period, that various local governments had maintained a boathouse, stationed a lifeguard and conducted classes on the property, and that the property has been maintained by occasional snowplowing and brining.

The law gives the public rights in private roadways under the doctrine of 'highway by user'. The elements of the cause of action are these: there must be a defined line used and worked upon [63 MICHAPP 199] by public authorities, traveled by the public for 10 consecutive years without interruption and (it must) be public, open, notorious an exclusive.

Plaintiffs also assert that public maintenance and use need only be seasonal and as required for public use. Whether the parcel is public or private is a question of fact for the jury. Summary judgment is here inappropriate, because sufficient facts are alleged to state a cause of action. The plaintiffs further assert that they do have standing to bring suit on behalf of the public in this matter. Bain v. Fry, 352 Mich. 299, 89 N.W.2d 485 (1958).

The defendants in answer to the arguments of plaintiffs assert that it is a long established rule in Michigan that private persons cannot institute proceedings in chancery to redress grievances on behalf of the public. The Grand Traverse County Road Commission is the proper party to institute such suit, and they have refused to intervene. Further, that the plaintiffs have not stated a cause of action in any case. The statutes upon which plaintiffs rely deal with highways and not picnic areas. Furthermore, the complaint does not state that the plaintiffs or the public has excluded defendants for 10 years or more. Occasional snowplowing and brining fall far short of the necessary public maintenance to satisfy the statute.

The public can have no prescriptive right in the property for recreational purposes. Pigorsh v. Fahner, 22 Mich.App. 108, 177 N.W.2d 466 (1970), Aff'd 386 Mich. 508, 194 N.W.2d 343 (1972).

Although the trial court begins its decision with the statement that plaintiffs fail to state a cause of action, GCR 1963, 117.2(1), it is clear that the court actually decided the motion on the basis of GCR 1963 117.2(3), because 'except as to the amount of damages there is no genuine issue as to [63 MICHAPP 200] any material fact, and the moving party is therefore entitled to judgment as a matter of law'. The court's review of the evidence applicable to plaintiffs' claim under the 'highway by user' statute, M.C.L.A. § 221.20; M.S.A. § 9.21, amply illustrates that the court considered this theory of relief at least plausible.

M.C.L.A. § 221.20; M.S.A. § 9.21 states:

'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 the time and use, shall be 4 rods in width, and where they are situated on section or quarter sections lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines.'

The obvious...