In re Bryant

• Decision Date: 03 January 1949
• Docket Number: No. 53.,53.
• Citation: 323 Mich. 424,35 N.W.2d 371
• Parties: Petition of BRYANT et al. in re HART'S PLAT OF OAK GROVE BEACH et al.
• Court: Michigan Supreme Court

323 Mich. 424

35 N.W.2d 371

Petition of BRYANT et al. in re HART'S PLAT OF OAK GROVE BEACH et al.

No. 53.

Supreme Court of Michigan.

Jan. 3, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Hillsdale County, in Chancery; G. Arthur Rathbun, Judge, Presiding.

Proceeding in the matter of the petition of C. B. A. Bryant and Ina W. Bryant, his wife, and others, to alter, vacate, correct, and revise Hart's Plat of Oak Grove Beach and Hart's Plat of Oak Grove Beach No. 1, in Section 29, Township 8 South, Range 4 West, Camden Township, Hillsdale County. From an order dismissing plaintiffs' petition, the petitioners appeal.

Order affirmed.

Before the Entire Bench.

Kenneth G. Prettie, of Hillsdale, for petitioners and appellants.

Sheldon M. Ellis, of Hillsdale, for appellee.

CARR, Justice.

Plaintiffs herein filed their petition in circuit court under the provisions of Comp.Laws 1929, § 13256 et seq.¹ to alter, vacate, correct and revise certain plats of property in Camden Township, Hillsdale County. The first of said plats, which was executed in 1921 in accordance with the provisions of Comp.Laws 1915, § 3350 et seq., is described as Hart's Plat of Oak Grove Beach. The second plat referred to as Hart's Plat of Oak Grove Beach No. 1, covered land adjacent to the first, and was recorded in May, 1926, under the same statutory provisions, as amended by Act No. 360, Pub.Acts 1925. Said provisions have been superceded by the Plat Act of 1929, Act No. 172, Pub.Acts 1929, under which the present proceeding has been instituted. The plats were properly acknowledged, had attached thereto the prescribed surveyor's certificates, and each contained a dedication of the streets and alleys, shown thereon, to the use of the public, as required by the statute.

The owners of the property at the time the plats were exectued and recorded were Alphonso Hart and Ella Hart. The plaintiffs in the instant proceeding have acquired their respective interests by purchases from time to time. It is their claim that the plats should be altered by vacating four streets, Maple, Oak, Willow and Cherry, shown thereon. The petition proposed that on the vacating of said streets an easement of a strip of land 20 feet in width would be granted by petitioners C. B. A. Bryant and Ina W. Bryant to owners of property in the plat, and also an easement for a walk five feet in width over and across the east five feet of Maple Street as originally laid out. A so-called revised plat of Oak Grove Beach, obviously designed to take the place of the preceding plats, was attached to the petition and submitted with it. Such proposed plat shows the new rights of way referred to above, omits all of the streets shown on the original plats, and substitutes 13 lots for the 64 originally laid out. It also shows a new public highway, four rods in width, on the Bryant property, which, it is claimed, will give the public access to the lake.

The petition further alleged that the streets shown on the plats and dedicated to the public use by the owners of the property had not been occupied or used by the public, nor accepted or maintained by any public authority. The board of county road commissioners of Hillisdale County filed answer to the petition, denying plaintiffs' allegations as to use and acceptance of the streets, and claiming also that the ‘state law does not provide for the vacating of county roads and further that vacation of these roads would be a detriment to the public which has used these roads.’

On the hearing in circuit court proofs were offered tending to show a somewhat limited public use of the streets sought to be vacated, the greater part of such proofs relating to Maple street. It does not appear that public money has been expended by highway authorities in the maintenance or improvement of any of the streets in question. It was shown, however, that in 1938 the board of county road commissioners of Hillsdale County took over Maple, Oak and Cherry streets as part of the county road system, under the provisions of Act No. 130, Pub.Acts 1931, as amended by Act No. 132, Pub.Acts 1935, Comp.Laws 1940 Supp. § 4018-1 et seq., Stat.Ann. § 9.141 et seq., commonly referred to as the McNitt act. Said measure directed the board of county road commissioners in each county to incorporate in the county road system, prior to April 1, 1932, 20% of the total township highway mileage as determined by the State highway commissioner. In each year thereafter an additional 20% was required to be taken over. It was further provided that following the taking over of all township highways ‘all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages shall be taken over and become county roads.’ The action of the board of county road commissioners in 1938, with reference to the streets in the plats here in question, was taken pursuant to the clause quoted.

In opposing the granting of the petition the board of county road commissioners relied on section 66 of the plat act of 1929, Comp.Laws 1929, § 13263, Stat.Ann. § 26.496, which contains the following provision:

‘The vacating of any plat or any part thereof shall not vacate any part of a state or county road.’

The trial judge found from the proofs before him that the procedure outlined by the McNitt act had been strictly followed with reference to the taking over of streets which petitioners seek to vacate, and that said streets had become an integral part of the county highway system. Based on the provision of section 66 above quoted, an order was entered dismissing plaintiffs' petition.

Claiming that the proofs do not sustain the order of the circuit court, plaintiffs seek review here, proceeding on the theory that they have a right of general appeal. Such method of review was apparently followed without question in Re Petition of Hawkins to Vacate Alley, 244 Mich. 681, 222 N.W. 108, under statutory provisions, relating to the vacating of plats, that were in force prior to the adoption of the present act in 1929. However, in the cases of In re Petition of Hendricks to Vacate Street, 248 Mich. 124, 226 N.W. 878, and In re Oakes, 249 Mich. 494, 229 N.W. 408, review was had on writs of certiorari. In the case of In re Brewer, 250 Mich. 450, 228 N.W. 762,231 N.W. 89, it was held that:

‘Certiorari is the proper remedy to review the decision of the lower court.’

Attention was called to the fact that the statute under which the proceeding was instituted did not provide for review, either by writ of error or by appeal. The same situation obtains with reference to the Plat Act of 1929. Under authority of the Brewer case, we think it must be said the appeal in the nature of certiorari on leave granted is the proper procedure in a case of this nature. Such was the method followed in Re Petition of Home Owners' Loan Corporation, 296 Mich. 675, 296 N.W. 835. However, in view of the fact that the case has been submitted by both parties without raising the question, we think we may properly exercise our discretion and dispose of the controversy on the merits. It will, therefore, be treated as though plaintiffs had sought, and obtained, leave to appeal in the nature of certiorari.

The principal question in the case arises from the claim of the plaintiffs that the trial court was in error in holding that the streets sought to be vacated, except Willow street, had become a part of the county highway system. Emphasis is placed on the proofs indicating that public money had not been expended in the improvement or maintenance of these streets, and that prior to the action of the board of county road commissioners in 1938 there was no official action by public highway authorities recognizing or declaring the streets to be township highways. It is insisted further, as a legal proposition, that an offer to dedicate must be accepted within a reasonable time. Attention is called to the decision in the case of County of Wayne v. Miller, 31 Mich. 447, where it was said:

‘After what length of time such an offer must be regarded as withdrawn, circumstances may perhaps determine, but unless there were facts equivalent to a continuous renewal of the offer, it cannot be considered open after the lapse of a period of time sufficient to bar all actions for the recovery of lands under the statute of limitations.’

In that case it appears that the public accepted a portion of the street offered, took possession of it, and used it. Private persons were permitted to exclude the public from the remainder. Such adverse possession on the part of the defendant and his predecessor in title had extended for more than the statutory period referred to in the language quoted. In Swartwout v. Township of Caledonia, 240 Mich. 398, 215 N.W. 293, no attempt was made for more than 16 years to accept a dedication of streets and parks in a plat. For the greater part of such period a portion of the plat had been fenced in by its owner, such action apparentlybeing taken without objection on the part of the township. Injunctive relief to restrain the officers of the township from interfering with the plaintiffs in the use and enjoyment of the property was accordingly granted. Counsel for plaintiffs has called attention to other decisions of like purport.

In the case at bar, however, a different situation is presented. There is nothing here to indicate any withdrawal of the dedication made by the owners in the original plats. It does not appear that the plaintiffs or their predecessors in title made any use of these streets inconsistent with the exercise of public rights therein. The second plat, executed in 1926, embraced land contiguous to that in the first. It is significant that the streets in the later plat connect with those in the first, and have in fact no other outlet. In this proceeding the plats are treated by plaintiffs as one. Bearing in mind that the dedicators in the two plats were the same, it is a fair conclusion that the dedication...