Cotton v. Castleton Tp., Docket No. 9033
| Decision Date | 24 March 1971 |
| Docket Number | Docket No. 9033,No. 3,3 |
| Parties | Elgin A. COTTON and Vida L. Cotton and Edward R. Stalbaum and Dorothy Stalbaum, Plaintiffs-Appellants, v. TOWNSHIP OF CASTLETON and Barry County Road Commission, Defendants-Appelles |
| Court | Court of Appeal of Michigan — District of US |
Edna Boddy, Cortright & Boddy, Hastings, for plaintiffs-appellants.
Paul E. Siegel, Hastings, for defendants-appellees.
Before FITZGERALD, P.J., and V. J. BRENNAN and T. M. BURNS, JJ.
Plaintiffs appeal from an adverse judgment, entered January 30, 1970, declaring the rights of the respective parties to a strip of land 290 feet long. The strip of land was held to be a county road.
The strip of land in question is an extension of Cogswell Road in Barry County, the strip leading directly to the north shore of Thornapple Lake. No formal grant of the strip of land nor dedication for public highway purposes was ever made. There is no dispute over Cogswell Road except as to the final 290 feet ending at Thornapple Lake.
Cogswell Road does appear on a Barry County map, published in 1940, as a northsouth road leading directly to the north shore of Thornapple Lake. However, testimony at the trial revealed that although some work had been done on the road at the township's direction sometime prior to 1936, neither the township nor the county had performed any maintenance on the strip of land for at least fifty years.
Since there was no formal dedication or grant of the strip of land to the public use, defendants' claim that the land constitutes a public road is based upon establishment of the roadway by user. The legislative standard for a roadway by user is found in M.C.L.A. § 221.20 (Stat.Ann.1958 Rev. § 9.21):
Michigan case law has established the requirement that, not only must the public use the roadway, the appropriate governmental unit must also exercise control over the road:
"To constitute a highway by user, there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used by the public, for 10 consecutive years, without interruption, and the possession thereof by the public must be open, notorious, and exclusive.' Alton v. Meeuwenberg (syllabi) (1896), 108 Mich. 629, 66 N.W. 571.' 1
In the instant case, the lower court found specifically that the strip of land had been used by the public for approximately seventy years, until 1963, when plaintiffs blocked it off and this dispute began. However, the only...
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