Eyde Bros. Development Co. v. Roscommon County Bd. of Road Com'rs
| Decision Date | 18 September 1987 |
| Docket Number | Docket No. 89101 |
| Citation | 411 N.W.2d 814,161 Mich.App. 654 |
| Parties | EYDE BROTHERS DEVELOPMENT COMPANY, a Michigan Co-partnership, Ernest C. Bebow and Nancy L. Bebow, Plaintiffs-Appellants, v. ROSCOMMON COUNTY BOARD OF ROAD COMMISSIONERS, the County of Roscommon, the Roscommon County Board of Commissioners, and the Township of Denton, Defendants-Appellees. 161 Mich.App. 654, 411 N.W.2d 814 |
| Court | Court of Appeal of Michigan — District of US |
[161 MICHAPP 656] Reid, Reid, Perry, Lasky, Hollander & Chalmers, P.C. by Joseph D. Reid and John R. Fifarek, Lansing, for plaintiffs-appellants.
James R. Deamud, Prudenville, for Roscommon County Bd. of Road Com'rs.
Charles H. Miltner, Cadillac, for Denton Tp.
Before MAHER, P.J., and SAWYER and TAHVONEN, * JJ.
Plaintiffs appeal as of right from a November 13, 1985, judgment of the Roscommon Circuit Court denying relief on plaintiffs' suit, which sought to quiet title to properties and claimed nuisance, but granting relief on defendants' counterclaim for trespass.
In 1927, the plat of Cedar Bluffs First Annex subdivision within Denton Township, County of Roscommon, was duly recorded. Cedar Bluffs First Annex lies on the south shore of Houghton Lake. [161 MICHAPP 657] Platted at the eastern extremity of Cedar Bluffs First Annex is a portion of land designated as "Liberty Street" and ostensibly dedicated to public use. That portion of Liberty Street situated within Cedar Bluffs First Annex is thirty-three feet wide. It extends north to the lakeshore and south to the subdivision limits.
In 1944, the plat of Westfall Heights subdivision, also within Denton Township, County of Roscommon, was duly recorded. Westfall Heights subdivision lies on the south shore of Houghton Lake, immediately east of the Cedar Bluffs First Annex subdivision. Platted at the western extremity of Westfall Heights is a portion of land designated as Liberty Street. As in Cedar Bluffs First Annex, Liberty Street is thirty-three feet wide. It extends north to the lakeshore and south to the subdivision limits. The Westfall Heights plat also ostensibly dedicated Liberty Street to public use.
Taken together, the two parcels designated as Liberty Street are sixty-six feet wide. That portion of Liberty Street in dispute extends approximately 148 feet from Houghton View Drive, the first street south of the lakeshore, north to the lakeshore itself. The center portion of Liberty Street, approximately seventeen feet, was paved in 1962. To the east and west of the paved portion are sloped banks about twelve feet wide. The slope of those banks increases as Liberty Street drops toward the lakeshore. At the top of the banks are horizontal portions of Liberty Street, about twelve feet wide. Abutting the horizontal portion of Liberty Street on the west is a lot within Cedar Bluffs First Annex. Abutting the horizontal portion of Liberty Street on the east is a lot within Westfall Heights.
In 1973, plaintiffs Ernest C. Bebow and Nancy L. Bebow purchased the Westfall Heights lakefront [161 MICHAPP 658] lot abutting Liberty Street. Some time after the Bebows purchased the property, they replaced an aging wooden sea wall with concrete. The new sea wall extends across the twelve- foot horizontal portion of Liberty Street, then slopes twelve feet toward the paved portion of Liberty Street, matching the contour of the banks of Liberty Street. It is not disputed that the new sea wall is in the location of the former sea wall. Defendants also concede that the Bebow sea wall provides some necessary protection for Liberty Street.
In 1978, plaintiff Eyde Brothers Development Company purchased lakefront lots 1 through 4 in the Cedar Bluffs subdivision. Those lots run north to Houghton Lake and south to Houghton View Drive. Lot number 1 abuts Liberty Street. In 1980, Eyde Brothers built a sea wall across the lakefront of their property in much the same manner as the Bebows. The Eyde Brothers sea wall extends across the twelve-foot, horizontal portion of Liberty Street then slopes twelve feet toward the paved portion of Liberty Street, matching the contour of the banks of Liberty Street. Unlike the Bebows, however, Eyde Brothers also constructed a fence along the eastern edge of the horizontal portion of Liberty Street in 1980. The effect of the fence is to enclose the west, twelve-foot, horizontal portion of Liberty Street within the Eyde Brothers property. The Eyde Brothers fence additionally turns along Houghton View Drive, enclosing 2.3 feet of that drive ostensibly dedicated to public use in the Cedar Bluffs First Annex plat.
On September 26, 1980, Eyde Brothers and the Bebows brought suit as plaintiffs against Roscommon County and other defendants under quiet-title and nuisance theories. The thrust of plaintiffs' claim under the quiet-title theory was that the Liberty Street and Houghton View Drive properties[161 MICHAPP 659] were never actually dedicated because they were not properly accepted by defendants. The thrust of plaintiffs' nuisance theory was that defendants were essentially the owners of an unsupervised and unmaintained park--a condition resulting in litter, noise and congestion which interfered with plaintiffs' use of their own properties.
Defendants answered on September 28, 1983, denying that Liberty Street had not been dedicated and denying that Liberty Street constituted a nuisance. Defendants also filed a counterclaim, alleging trespass on the part of Eyde Brothers in the construction of its fence and sea wall. Defendant Denton Township intervened in the suit by order of the circuit court dated October 23, 1984.
A bench trial was held in the circuit court on July 16 through 18, 1985. Proposed findings of fact were subsequently filed by both parties. On October 7, 1985, the circuit court entered its opinion in favor of defendants. The trial court held that five factors supported its conclusion that there was acceptance by defendants and therefore a proper dedication of Liberty Street: (1) there was acceptance under the "McNitt Act," 1931 P.A. 130, repealed, 1951 P.A. 51 Sec. 2, repealed 1969 P.A. 319 Sec. 297, with continued foot changes submitted by the county to the state; (2) there was use by the public of the entire width of Liberty Street; (3) public funds were used to construct a paved roadway on Liberty Street; (4) public funds were used to install a drain; and (5) Denton Township established a dock ordinance regulating the use and placing of docks at the foot of public streets in the township. The trial court further held that there was no evidence to indicate abandonment of Liberty Street by the public.
Regarding plaintiffs' nuisance theory, the trial court found that the actions by the public in using [161 MICHAPP 660] Liberty Street were not so outrageous as to require a closing of the street. The court did note that there had been occasions, particularly on summer weekends, when the public had engaged in activities constituting a nuisance. However, the trial court held that it did not have authority to close Liberty Street, even if the nuisance had been continuous and outrageous. The trial court instead encouraged plaintiffs to contact defendants when such behavior occurred so that existing laws and ordinances could be enforced. Finally, the trial court held that any money damages for the nuisance previously created would be speculative.
Regarding defendants' counterclaim, the trial court found that there had been a trespass by Eyde Brothers. The trial court ordered Eyde Brothers to remove their fence extending along Liberty Street and remove that portion of their sea wall extending across Liberty Street. The trial court made no findings regarding that portion of Eyde Brothers' fence extending along Houghton View Drive.
On appeal, plaintiffs argue that the trial court erred in holding that there was a proper dedication of Liberty Street and that title to the property has therefore vested in the county or township. According to plaintiffs, dedication requires both an offer, submitted by properly recording the plat, and an acceptance by formal action or by undertaking repairs or improvements, by the public. Plaintiffs submit that there was no formal acceptance by defendants nor was there an informal acceptance within a reasonable time. Thus, plaintiffs argue that Liberty Street continues to be [161 MICHAPP 661] privately owned, although plaintiffs' briefs and pleadings do not specify by whom Liberty Street is owned. Under this theory, plaintiffs suggested at oral argument that the property might revert to the abutting landowners. Alternatively, plaintiffs argue that if there was an acceptance by defendants, it was informal and therefore limited to the improved or paved portion of Liberty Street.
Our analysis of the question of the ownership of Liberty Street leads us first to the express language of the plat act at the time that Cedar Bluffs First Annex and Westfall Heights plats were recorded. In 1927, when the plat of Cedar Bluffs First Annex was recorded, Michigan's plat act provided:
"The [plat] map so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels of land as may be herein designated for public uses in the city or villages within the incorporate limits of which the land platted is included, or if not included within the limits of any incorporated city or village, then in the township within the limits of which it is included in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever." 1925 P.A. 360.
When the Westfall Heights plat was recorded, Michigan's plat act contained nearly identical language:
"The plat so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels...
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