Donaldson v. Alcona County Bd. of County Road Com'rs

• Decision Date: 08 November 1996
• Docket Number: Docket No. 182032
• Citation: 219 Mich.App. 718,558 N.W.2d 232
• Parties: Orville DONALDSON, Glenda Donaldson, and Walter Kosalski, Plaintiffs-Appellants, v. ALCONA COUNTY BOARD OF COUNTY ROAD COMMISSIONERS, Jessie Tucker, and Lorene Tucker, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 232

558 N.W.2d 232

219 Mich.App. 718

Orville DONALDSON, Glenda Donaldson, and Walter Kosalski Plaintiffs-Appellants, v. ALCONA COUNTY BOARD OF COUNTY ROAD COMMISSIONERS, Jessie Tucker, and Lorene Tucker, Defendants-Appellees.

Docket No. 182032.

Court of Appeals of Michigan.

Submitted June 11, 1996, at Detroit.

Decided Nov. 8, 1996, at 9:00 a.m.

Released for Publication Jan. 24, 1997.

Anderson & Anderson and Associates, P.C. by Acie G. Anderson, III, and Rae Anne Anderson, Clarkston, for plaintiffs-appellants.

Gillard, Bauer, Mazrum, Florip, Smigelski & Gulden by James L. Mazrum, Alpena, for the Alcona County Board of County Road Commissioners.

Before GRIFFIN, P.J., and BANDSTRA and M. WARSHAWSKY, ^* JJ.

BANDSTRA, Judge.

Plaintiffs appeal as of right the Alcona Circuit Court order granting summary disposition to the Alcona County Board of County Road Commissioners (the road commission) and other defendants. We affirm.

Plaintiffs, Orville and Glenda Donaldson and Walter Kosalski, own two parcels of property north of a road that extends eastward off O'Donnell Road in Alcona County. The road is sand-based and unditched; it is approximately one-quarter mile in length. Defendants Jessie and Lorene Tucker also own property north of the road. The Donaldsons, Walter Kosalski, and the Tuckers each reside in homes on their respective properties. The only other property owner along the road is the United States Forest Service, which is not a party and which apparently has no interest in the resolution of this dispute. The road is a dead-end road and serves only the three houses owned by the parties.

The road is not shown on any deeds but simply exists upon the private property of the parties without benefit of easement, platting, or other legal status. It was apparently placed there by a predecessor in title before the parties purchased their property, without any involvement by the road commission.

For a number of decades, the road commission has maintained the road in a limited fashion, snowplowing in the winter and occasionally grading to keep the road in a reasonably passable condition. The road was maintained in this fashion because the road commission management was under the mistaken impression that the road was part of the county road system. However, in the early 1990s, a review of the records of the road commission indicated that the road had never been accepted into the system by the road commission. Further, upon inspection, the road was determined not to meet the standards for acceptance because of inadequate right of way, inadequate drainage, inadequate subbase, and inadequate gravel surface. For these reasons and also to eliminate the cost of maintaining this and a number of similar roads in Alcona County, a decision was made that the road commission would no longer service the road, and plaintiffs were so informed. Plaintiffs filed this lawsuit to have the road declared a public highway under M.C.L. § 221.20; M.S.A. § 9.21 and to force the road commission to continue maintaining it. In contrast, the Tuckers joined as defendants and, in their answer to the complaint, took the position that "[y]ou can make it a public road if you move it off [our] property."

Following discovery and the submission of affidavits, plaintiffs moved for summary disposition. Pursuant to MCR 2.116(I)(2), the trial court granted summary disposition to defendants, reasoning both that plaintiffs did not have standing to bring this suit and that defendants were entitled to summary disposition under MCR 2.116(C)(10), there being no genuine issue regarding a material fact. Although we conclude that the trial court erred with respect to the standing question, we affirm its decision regarding the merits of plaintiffs' action.

Standing is a legal term denoting the existence of a party's interest in the outcome of litigation that will ensure sincere and vigorous advocacy. Detroit Fire Fighters Ass'n v. Detroit, 449 Mich. 629, 633, 643, 651, 537 N.W.2d 436 (1995). To have standing, a plaintiff must demonstrate a legally protected interest that is in jeopardy of being adversely affected and allege a sufficient personal stake in the outcome of the dispute to ensure that the controversy sought to be adjudicated will be presented in an adversarial setting that is capable of judicial resolution. Wortelboer v. Benzie Co., 212 Mich.App. 208, 214, 537 N.W.2d 603 (1995); Trout Unlimited, Muskegon White River Chapter v. City of White Cloud, 195 Mich.App. 343, 348, 489 N.W.2d 188 (1992).

In the present case, the trial court determined that plaintiffs did not have a sufficient personal stake in this matter, relying on Comstock v. Wheelock, 63 Mich.App. 195, 234 N.W.2d 448 (1975), a precedent the court found to be factually similar to the present matter. In Comstock, the defendants owned property that the general public had used for access to Long Lake for over seventy years. Id. at 196, 234 N.W.2d 448. They erected a boathouse on the property and signs forbidding the public from entering. Id. The plaintiffs, who were private citizens, filed suit attempting to have the defendants' property declared a public highway so that the public could continue to have access to the lake. Id. at 196-197, 234 N.W.2d 448. This Court found that the plaintiffs did not have standing because public-rights actions must be brought by public officials vested with such responsibility. Id. at 202, 234 N.W.2d 448. Further, the Court noted that the plaintiffs had no greater rights than the general public and, hence, had no standing to assert those rights. Id. at 203, 234 N.W.2d 448. Defendants rely upon Karrip v. Cannon Twp., 115 Mich.App. 726, 321 N.W.2d 690 (1982), a case with facts similar to Comstock, but with a different result with regard to the standing issue.

We find it unnecessary to determine whether Comstock is still controlling authority after Karrip. See, generally, 2 Cameron, Michigan Real Property Law (2d ed.), § 25.8, p. 1161. Both Comstock and Karrip involved members of the general public who sought to continue using property as a public highway, a situation different from that at issue here. Plaintiffs in this case are not members of the general public but, instead, own property along the contested road. They need the road to get to their homes and, if it is not maintained by the road commission, they will have to undertake that burden. These interests are unique to plaintiffs and not shared by members of the general public. In fact, plaintiffs' interests are contrary to the interests of the general public. If the road is maintained by the road commission, then it is the general public that must pay the maintenance expense. The road offers little benefit to other members of the public because it is a dead-end road that leads to only three houses. Because plaintiffs have a sufficient personal stake in the outcome of this litigation that differs from that of the general public, plaintiffs have standing to bring this action. Karrip, supra at 733-734, 321 N.W.2d 690; Comstock, supra at 202-203, 234 N.W.2d 448. The trial court erred in granting summary disposition to defendants with regard to the standing question.

With respect to the merits, plaintiffs' complaint was based on the "highway by user" statute, M.C.L. § 221.20; M.S.A. § 9.21, which provides in pertinent part:

All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten 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 eight years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act.

Under this statute, it is insufficient if public use of a roadway is "a mere permissive use by the general public however long continued. In order to make it a public highway[,] the use must be so open, notorious and hostile as to be notice to the landowner that his title is denied." Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958); accord Missaukee Lakes Land Co. v. Missaukee Co. Rd Comm., 333 Mich. 372, 379, 53 N.W.2d 297 (1952); Murphey v. Lee Twp., 239 Mich. 551, 560-561, 214 N.W. 957 (1927). Other precedents substitute the requirement that a use must be "exclusive" instead of "hostile." Boone v. Antrim Co. Bd of Rd Comm'rs, 177 Mich.App. 688, 693, 442 N.W.2d 725 (1989); accord Dryfoos v. Maple Grove Twp., 363 Mich. 252, 255, 109 N.W.2d 811 (1961); DeWitt v. Roscommon Co. Rd Comm, 45 Mich.App. 579, 582, 207 N.W.2d 209 (1973). We conclude that these two terms are of similar import. ¹ The trial court determined that, considering the undisputed facts in this case, this "hostility" or "exclusive" requirement could not be satisfied and that defendants were entitled to summary disposition under MCR 2.116(C)(10). We agree.

An action is "exclusive" if it "excludes" something, meaning that it "shut[s] out," "bar[s]," or "disregard[s]" something. The American Heritage Dictionary (2nd College Ed., 1982). Similarly, an action is "hostile" if it treats something in an "antagonistic" manner. Id. In the present context, what might be excluded or treated with hostility is some property right of a landowner, to the extent that it is negated or diminished by a public authority's action. The case law applying the highway by user statute and comparable principles of adverse possession is replete with instances where actions by a public authority, the general public, or an adjoining landowner have been considered "exclusive" or "hostile" in a context where purported private property rights have been diminished or denied as a result. See, e.g., Indian Club v. Lake Co. Rd Comm'rs, 370 Mich. 87, 90, 120 N.W.2d 823 (1963 ) (one owner of a purportedly private road unlocked a gate in the face of complaints from members...