Eyde Bros. Development Co. v. Eaton County Drain Com'r

• Decision Date: 10 February 1987
• Docket Number: 77377,Docket Nos. 77250
• Citation: 398 N.W.2d 297,427 Mich. 271
• Court: Michigan Supreme Court
• Parties: EYDE BROTHERS DEVELOPMENT COMPANY, A Michigan Co-Partnership, Plaintiff- Appellee, v. EATON COUNTY DRAIN COMMISSIONER, County of Eaton, Eaton County Road Commission, Board of County Road Commissioners of Eaton County, County Board of Commissioners, Charter Township of Delta, and Blue Cross and Blue Shield of Michigan, Defendants-Appellants.

Page 297

398 N.W.2d 297

427 Mich. 271

EYDE BROTHERS DEVELOPMENT COMPANY, A Michigan Co-Partnership, Plaintiff- Appellee, v. EATON COUNTY DRAIN COMMISSIONER, County of Eaton, Eaton County Road Commission, Board of County Road Commissioners of Eaton County, County Board of Commissioners, Charter Township of Delta, and Blue Cross and Blue Shield of Michigan, Defendants-Appellants.

Docket Nos. 77250, 77377.

Supreme Court of Michigan.

Argued May 7, 1986.

Decided Dec. 29, 1986.

Rehearing Denied Feb. 10, 1987.

Reid, Reid, Perry, Lasky, Hollander & Chalmers, P.C. by Joseph D. Reid, John R. Fifarek, Lansing, for plaintiff-appellee, Eyde Bros. Development Co.

McKay, Murphy, Brenton & Spagnuolo, P.C. by M. Dale McKay, Frederick J. Griffith, Lansing, for defendant-appellant Charter Tp. of Delta.

Foster, Swift, Collins & Coey, P.C. by Theodore W. Swift, William K. Fahey, Stephen O. Schultz, Lansing, for defendant-appellant Blue Cross and Blue Shield of Michigan.

Lawrence B. Lindemer, B.E. Hagen, Mirce Nestorovski, Jackson, amicus curiae Consumers Power Co.

Quentin A. Ewert, Rodger T. Ederer, Harvey J. Messing, Thomas E. Maier, Loomis, Ewert, Ederer, Parsley, Davis & Gotting, Lansing, for Telephone Ass'n of Michigan, amicus curiae.

Michigan Bell Telephone Co. by H. Wayne Wells, Mary M. Waterstone, Jonathan P. Macks, Detroit, amicus curiae.

Bauckham, Reed, Lang, Schaefer, Sparks & Rolfe, P.C. by John H. Bauckham, Kalamazoo, for amicus curiae Michigan Townships Ass'n.

City of Detroit by Donald Pailen, Corp. Counsel, Kathleen Leavey-Kageff, Asst. Corp. Counsel, City of Detroit Law Dept., Detroit, amicus curiae City of Detroit Water and Sewerage Dept.

Before the Entire Bench.

WILLIAMS, C.J.

This case arises from the failure of Blue Cross and Blue Shield of Michigan and the Eyde Brothers Development Company to work out an agreement that Blue Cross should use and pay for the use of a connector sewer or drain ¹ on Eyde's property. Blue Cross claimed that the Eyde sewer was too small and too costly, and thereupon sought to construct a sewer under Mt. Hope Highway.

Eyde argues that Blue Cross' efforts to construct the sewer within the Mt. Hope Highway easement were illegal for four reasons: First, Eyde contends that the highway easement extends only to surface transportation because it is an easement by user and the abutting owner (Eyde) retains the title in fee simple to the center line of the highway; therefore, before a sewer may be constructed within the easement, the drain commissioner must secure a release of right of way from Eyde or pursue condemnation proceedings. Second, Eyde contends that the drain commissioner should have and did not secure from Eyde either an easement or release of right of way pursuant to Secs. 321 and 73 of the Drain Code of 1956. Third, Eyde contends that when the drain commissioner did not obtain a release of right of way from Eyde, she should have and did not pursue condemnation proceedings under Sec. 75 of the Drain Code. Fourth, Eyde contends that, for the two parcels for which it mowed the grass within the highway right of way, the width of the Mt. Hope Highway easement was less than the statutory four rods.

We disagree with all of Eyde's contentions and hold that when a highway is established by user: 1) the scope of the easement includes the right to build sewers within the highway, 2) the consent of the fee owner to construct a sewer within the highway easement is not necessary if the builder obtains a majority vote resolution granting leave to construct the sewer by the governing body having jurisdiction over the highway, 3) the property owner retaining the fee is not entitled to compensation by condemnation when a sewer is constructed within the public easement of the highway, and 4) a property owner's mowing of grass is insufficient evidence of control over a highway right of way to rebut the statutory presumption of four rods or sixty-six feet as the width of the public highway easement.

The Court of Appeals decision is reversed.

I. FACTS

The plaintiff, Eyde, owns property on both sides of Mt. Hope Highway in the Charter Township of Delta in Eaton County, just west of Lansing. The defendant, Blue Cross, owns two hundred acres near the intersection of Mt. Hope Highway and Creyts Road. The Blue Cross property is north of Mt. Hope Highway and east of Creyts Road. The Eyde lots are located on both the north and south sides of Mt. Hope Highway and are west of Creyts Road. They are also between the nearest sanitary sewer interceptor to the west and the Blue Cross property to the east.

Two of the Eyde properties on the north side of Mt. Hope Highway are rental residences. The principal Eyde witness testified that Eyde had mowed the front lawns of these residences periodically since 1968. No fences or buildings were constructed on or within the contested thirty-three foot right of way north of the highway center line.

Neither party disputes that Mt. Hope Highway, originally a section line road, is a public highway. The evidence shows that on March 3, 1921, the Eaton County Board of Road Commissioners adopted a resolution accepting Mt. Hope Highway into the county road system. Since that time, the Eaton County Road Commission has exercised sole jurisdiction and control over the highway. (Meredith affidavit.)

In 1983, Blue Cross completed construction of a multi-million dollar health care facility on its property near Mt. Hope Highway. The owner and primary tenant of the building is Health Central, Inc., a wholly owned subsidiary of Blue Cross. At the same time, Eyde constructed a small storm sewer line on its own property 750 feet north of and running parallel to Mt. Hope Highway, with the alleged understanding that this line would service the Blue Cross facility and tie into Delta Industrial Drain, the county drain. Whatever arrangement there was between Eyde and Blue Cross broke down in December, 1983, when Blue Cross described the capacity of the Eyde sewer as inadequate and the cost prohibitive. Consequently, with the building ready for occupancy, but without a sewer hookup, Blue Cross immediately applied for and obtained a "pump and haul" permit from the Department of Natural Resources to remove the sanitary sewage from the Health Central facility.

Still in need of a permanent link with the main sanitary sewer interceptor, on February 7, 1984, Blue Cross entered into a municipal utility agreement with the Eaton County Drain Commissioner for Blue Cross to contract for the construction of a storm sewer. Eyde did not learn of this February 7 agreement until March 23, 1984. On March 20, 1984, Blue Cross entered into a municipal utility agreement with Delta ² for construction of the sanitary portion of the sewer.

On March 16, 1984, Eyde filed the first of two related lawsuits. ³ The first suit named as defendants the Eaton County Road Commission and the Board of County Road Commissioners of the County of Eaton. In this suit, Eyde requested a declaratory judgment to determine the scope of its interest in the disputed property and a permanent injunction restraining the road commissioner from interfering with Eyde's ownership of the disputed property. On March 26, 1984, Eyde filed the second lawsuit, naming the Eaton County Drain Commissioner, the County of Eaton, and the Eaton County Board of Commissioners as defendants and requesting a writ of mandamus to compel the drain commissioner to carry out her statutory duties, viz., inter alia, to secure the necessary releases and an ex parte restraining order to keep the drain commissioner and her agents or assignees from entering on Eyde's property to construct the sewer.

Delta and Blue Cross moved to intervene in both lawsuits. On March 27, 1984, the trial judge consolidated the cases. The trial judge granted Eyde's request for injunctive relief, issuing a temporary restraining order halting all efforts to construct the sewer, and ordered the drain commissioner to show cause why a writ of mandamus should not follow. At the April 6 show cause hearing, the trial judge modified the temporary restraining order to not apply to ten and one-half feet of either side of the center line of Mt. Hope Highway. The trial judge's final judgment was to rule that a thirty-three foot right of way existed on either side of the Mt. Hope Highway center line except for two parcels on the north side of the highway, one with eighty feet of frontage on the highway and the other with 160 feet of frontage. The trial judge held that for these two Eyde properties, the right of way would extend only fourteen and one-half feet north of the center line, reasoning that Eyde's lawn mowing activities within the thirty-three foot right of way effectively rebutted the presumption that the entire right of way was public.

The circuit court issued its final order on April 12, 1984, limiting the public right of way on the two Eyde residential properties, but otherwise dismissing the Eyde lawsuit. Blue Cross immediately began preparations to construct the sewer under Mt. Hope Highway. At the same time, Eyde prepared an application for leave to appeal to the Court of Appeals that was filed on April 18, 1984. On April 19, 1984, the actual construction on the sewers began, and on April 25, 1984, the Court of Appeals reinstated the circuit court's restraining order, halting all construction.

On August 22, 1985, the Court of Appeals reversed the trial court's decision and remanded the case for entry of a writ of mandamus compelling the Eaton County Drain Commissioner to prohibit construction of the sewer until Eyde authorized releases on its right of way or received compensation through condemnation proceedings. Eyde Bros. Development Co. v. Eaton Co. Drain Comm'r, 145 Mich.App. 269, 283-284, 377 N.W.2d 857 (1985). The Court of Appeals held that "an abutting owner owns the fee to the middle of the highway and has the right to use the subsurface for any...