Gunn v. Delhi Tp., Ingham County

• Decision Date: 27 November 1967
• Docket Number: No. 2,Docket No. 358,2
• Citation: 8 Mich.App. 278,154 N.W.2d 598
• Parties: Wilbur C. GUNN, Plaintiff-Appellant, v. DELHI TOWNSHIP, INGHAM COUNTY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 598

154 N.W.2d 598

8 Mich.App. 278

Wilbur C. GUNN, Plaintiff-Appellant, v. DELHI TOWNSHIP, INGHAM COUNTY, Defendant-Appellee.

Docket No. 358.

Court of Appeals of Michigan, Division No. 2.

Nov. 27, 1967.

Paul C. Younger, Lansing, for appellant.

F. Merrill Wyble, Parks, Church, Wyble & Barnes, Lansing, for appellee.

Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.

GILLIS, Judge.

This case involves a chancery suit commenced September 22, 1961. Plaintiff Wilbur C. Gunn was the owner of 245 acres of farm land located adjacent to the intersection of McCue and Onondaga roads approximately 2 miles from Lansing, Michigan. Plaintiff sought to enjoin defendant, Delhi Township, from laying a sewer pipe in McCue road (a county road), the fee title of which was in plaintiff, whose acreage abutted the road. The trial court issued a restraining order, then discontinued it, and defendant built the sewer. Plaintiff amended his original complaint contending the following occurred without his permission: 1) that a portion of the sewer was constructed in the road, the fee title to which he owned; 2) that the sewer cut across a corner of his farm land, which was adjacent to the county road; 3) that the sewer as constructed interfered with the drainage of plaintiff's land. In the amended complaint plaintiff requested the court to order the defendant to condemn his property or to remove the sewer or to pay money damages. The Ingham county circuit court, on November 27, 1964, ordered defendant to make operative certain sump holes in the existing drainage system and denied all other requested relief. The appeal is taken from that decision.

Plaintiff's amended complaint alleged that he was harmed in a three-fold manner:

1) The appropriation of the sub-surface of McCue road for the sewer line was invalid as being in contravention of the Michigan Constitution of 1908, art. 2, § 16, and of art. 13, §§ 1 and 2, and of the Fourteenth Amendment of the United States Constitution (i.e., essentially a taking of private property for public purposes without due process of law).

2) The sewer obstructed the drainage system, thus depriving plaintiff of rights appurtenant to his land without due process and without having the necessity for this deprivation ascertained and his loss compensated, as required by art. 13, §§ 1 and 2 of the Michigan Constitution of 1908.

3) The sewer encroached on a portion of plaintiff's land adjacent to the road.

These claims will be dealt with in order.

Ownership Rights in McCue Road

Plaintiff asserts in his brief that McCue road is a prescriptive easement road, the easement being only for foot and vehicular traffic and the necessary adjuncts, which do not include a sewer line. Defendant claims the road has been impliedly dedicated to the public through use by the public and maintenance by the public authorities for the period specified in C.L.1948, § 221.20 (Stat.Ann.1958 Rev. § 9.21). ¹

Generically, a dedication is 'an appropriation of land to some public use, accepted for such use by or in behalf of the public.' Clark v. City of Grand Rapids (1952), 334 Mich. 646, 656, 657, 55 N.W.2d 137. Two types of dedications have been specifically recognized in this State, statutory dedication and common-law dedication; the distinction was explicitly approved by the Supreme Court prior to the turn of the century. Alton v. Meeuwenberg (1896), 108 Mich. 629, 66 N.W. 571. Statutory dedication may result from compliance with the plat act of 1929, C.L.1948, §§ 560.1-560.80, as amended (Stat.Ann.1953 Rev. and Stat.Ann.1965 Cum.Supp. §§ 26.431-26.511). The definition of common-law dedication was given in Alton v. Meeuwenberg, supra, at p. 636, and has been incorporated without substantial change into C.L.1948, § 221.20, supra, quoted in footnote 1.

The distinction must be stated because of the difference in result hinging on the type of dedication. The traditional position was stated in Village of Grandville v. Jenison (1890), 84 Mich. 54, 65, 47 N.W. 600, 603:

'The effect of a dedication under the statute has been to vest the fee in the county, in trust for the municipality intended to be benefited, whereas, at common law, the act of dedication created only an easement in the public.'

In West Michigan Park Association v. Department of Conservation (1966), 2 Mich.App. 254, 139 N.W.2d 758, this Court relied on C.L.1948, § 560.50 (Stat.Ann.1953 Rev § 26.480) ² in ruling that a 'base' or qualified fee was passed to the public by a proper statutory dedication.

The requisites of statutory dedication do not appear to have been met here. The record indicates a conflict in testimony as to whether defendant township ever formally accepted the plat proposed and submitted by plaintiff. When asked on direct examination what action the township had taken with regard to the plat, plaintiff testified 'I understand it has been approved provided it is hooked to the sanitary sewer.' Plaintiff's witness, Floyd R. Decker, testified that the plat was never accepted or approved by the defendant township.

In addition, the certificate required by C.L.1948, § 560.11 (Stat.Ann.1953 Rev. § 26.441) ³ does not appear on the proposed plat (plaintiff's exhibit number 7), nor is there any indication given in the record that the required certification has been made elsewhere. Further, there is no evidence that the plat was recorded in compliance with C.L.S.1961, § 560.3 (Stat.Ann.1965 Cum.Supp. § 26.433). ⁴ The failure of proof in these respects warrants the conclusion that the plat was not made and recorded in compliance with the statutory provisions and that, therefore, there was no vesting of the fee in the municipality.

An unsuccessful attempt at statutory dedication does not preclude a common-law dedication. City of Mt. Clemens v. Mt. Clemens Sanitarium Co. (1901), 127 Mich. 115, 86 N.W. 537. The evidence in this case was sufficient to support a finding of dedication under C.L.1948, § 221.20, quoted in footnote 1. Although as noted above, a fee interest was not transmitted under a common-law dedication, some quasi-ownership rights did pass from the former owner. The problem of defining such rights from cases does not have to be met, since the statute spells out the rights in question here; C.L.1948, § 247.183 (Stat.Ann.1958 Rev. § 9.263) provides:

'Telegraph, telephone, power and other public utility companies and Municipalities are authorized to enter upon, construct and maintain telegraph, telephone or power lines, pipe lines, wires, cables, poles, conduits, Sewers and like structures upon, over, across, or under Any public road.' (Emphasis supplied.)

The stated authorization is clear and specific. No distinction is to be drawn between county roads and city roads, contrary to the urgings of plaintiff. The conclusion appears inevitable that in Michigan nonstatutory dedication of land for use as a public road or highway operates to transfer to public authorities and public utility companies the right to construct sewer lines thereunder, and thus there was no deprivation of property in the constitutional sense.

The broad phraseology of the second sentence of C.L.1948, § 247.185 (Stat.Ann.1958 Rev. § 9.265) ⁵ is relied upon by plaintiff as preserving his existing rights in McCue road in spite of C.L.1948, § 247.183. Defendant asserts that it should be read to refer only to 'public rights,' even though reference is made to 'any rights' and 'any existing rights.' The mandate of this sentence prohibits a construction by which rights are 'granted' to public utilities or by which existing rights are 'impaired;' the sentence does not specify whose existing rights are not to be impaired. The required construction is that of a 'regulation of the exercise of all such rights.' A statute which does not confer or withdraw rights, but only 'regulates' them, seems to assume the pre-existence of such rights; at least, this emerges as the only premise on which a reasonable construction may be based.

C.L.1948, § 247.183 is primarily a declaration that specified public bodies have the right to engage in certain described activities on public roads; the right arises from the fact that the roads are 'public,' not from the statute itself. The public character of a road is determined by dedication, even if the dedication is nonstatutory (see footnote 1). This section is regulatory as well as declaratory; the regulation is that the rights declared therein may be exercised only with the consent of the proper public authorities. It is this proviso which constitutes the regulation to which reference is made in the disputed sentence of C.L.1948, § 247.185 quoted in footnote 5.

Interference With The Drainage System

Plaintiff argues that he has a vested right in proper maintenance of the drainage ditches and that he is entitled to compensation for the highest and best use to which the property could be put--in this case, as a residential subdivision. Without denying the validity of either position, we do not think that these two contentions are enough to establish plaintiff's case.

The rule of compensation for highest and best use is a standard for measuring damages. The question of damages is logically subsequent to the issue of infringement of a present right. That plaintiff's land might be suitable for purposes for which it is not now being used is immaterial to the proof of violation of a right. As regards the existence of a cause of action, the pertinent inquiry is whether plaintiff's use of his land as a farm was limited or infringed by defendant's sewer line. We must look to the relevant facts as they were before and after the installation of the sewer pipe.

There was a good deal of professional engineering testimony as to the drainage of the land. It appeared that a certain...