Indian Club v. Board of County Road Com'rs of Lake County, 119

• Decision Date: 05 April 1963
• Docket Number: No. 119,119
• Citation: 120 N.W.2d 823,370 Mich. 87
• Parties: The INDIAN CLUB, a Michigan corporation, John B. Stephanoff and Gatha Stephanoff, his wife, and Harry S. Benedict and Bernice V. Benedict, his wife, Plaintiffs-Appellants, v. BOARD OF COUNTY ROAD COMMISSIONERS OF LAKE COUNTY, a body corporate, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 823

120 N.W.2d 823

370 Mich. 87

The INDIAN CLUB, a Michigan corporation, John B. Stephanoff and Gatha Stephanoff, his wife, and Harry S Benedict and Bernice V. Benedict, his wife, Plaintiffs-Appellants, v. BOARD OF COUNTY ROAD COMMISSIONERS OF LAKE COUNTY, a body corporate, Defendant-Appellee.

No. 119.

Supreme Court of Michigan.

April 5, 1963.

Robert S. Tubbs, Grand Rapids, Seth R. Bidwell, Lansing, of counsel, for appellants.

Charles A. Wickens and Nelson M. Willis, Baldwin, Jack Born and Paul Greer, Baldwin, of counsel, for appellee.

Before the Entire Bench.

SMITH, Justice.

Plaintiffs brought this action for the purpose of having a certain 'trail' declared to be a private road and further to enjoin the Lake county road commission from asserting jurisdiction over it. The road in question leaves the Baldwin-Irons county highway at a point approximately 600 feet north of the southeast corner of section 30, in Eden township, Lake county, and thence proceeds in a westerly direction to a resort and a platted area known as Little Manistee, where it crosses a railroad right-of-way; then it proceeds in a northerly and westerly direction into section 19, following roughly the course of the Little Manistee river, to property referred to as Stephanoff's. There, it formerly continued near Stephanoff's buildings in a westerly direction to a county highway. By agreement between the Lake county road commission and Stephanoff, in 1942, the road was relocated to a course somewhat farther away from the Stephanoff buildings and now proceeds in a straight line westerly to the county highway.

The road in question enters the Little Manistee plat and proceeds along Nordheim Road, one of a number of streets in the plat which has been dedicated but not formally accepted. There are a number of cottages and summer homes in this area, in addition to plaintiff's property. All of the owners are not included as plaintiffs, except by reference, although the only means of ingress and egress for them is by the road which is here in dispute. Testimony discloses that there was a take-over and certification of the road in 1942, and that the county has been receiving funds since that year. At the pretrial conference, counsel stipulated that the road had been certified and that it presently appears on road maps as a county public road. Both plaintiffs and defendants agree that the only way that this road could become a public highway would be by 'user' under the statute. C.L.1948, § 221.20 (Stat.Ann.1958 Rev. § 9.21). ¹

Under the statute, however, to be a mere user for the specified period is not, in itself, sufficient to make the road a public highway. This Court has held the statute requires that '* * * there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used by the public, for 10 consecutive years, without interruption, and the possession thereof by the public must be open, notorious, and exclusive.' Alton v. Meeuwenberg (syllabi), 108 Mich. 629, 66 N.W. 571. See also Missaukee Lakes Land Company v. Missaukee County Road Commission, 333 Mich. 372, 379, 53 N.W.2d 297; Leelanau County Board of Road Commissioners v. Bunek, 344 Mich. 605, 612, 75 N.W.2d 51; Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485. There must be then use for the statutory period, sufficient to constitute a dedication. But also, there must be an acceptance by the public authorities with the way taken and maintained as other highways. Chapman v. City of Sault Ste. Marie, 146 Mich. 23, 109 N.W. 53; Leelanau County Board of Road Commissioners v. Bunek, supra; Dryfoos v. Township of Maple Grove, 363 Mich. 252, 109 N.W.2d 811.

Testimony showed that the road in dispute has existed since before 1900, in almost the exact location as it does today. There was a relocation of a small portion of the road in 1942, pursuant to the Stephanoff agreement, as mentioned above. This was entirely paid for by the road commission. There was testimony that the road had been used by the public for many more than 10 consecutive years and that this use was open, notorious, and exclusive. Various witnesses, who have lived in the area up to 50 years, testified that they used the road, and saw many others do the same. One member of plaintiff Indian Club testified that nobody was ever prevented from using the road, and that the members assumed 'the people had a right--that we had to provide a right of access to the people in the Little Manistee Plat.' Another witness testified that his father put a gate across the road to restrain cattle and padlocked it but when a delegation from Little Manistee came down and told his dad that he just couldn't do that and 'This is a public road; you can't shut it off.', the gate was left unlocked.

Testimony also established that the county road commission and its predecessor worked on the road. The county engineer testified that he surveyed a portion of the road in 1942, for the commission so that they could relocate a portion. There was testimony that the culverts were installed by order of the public authorities. Employees of the road commission testified that they had performed work on the road at various times over the years. The years in which work was performed by public authorities were listed as follows: 1941, 1943 or 1945, 1947 and 1948, 1949, 1953 and 1954, 1955, 1960.

In Pulleyblank v. Mason County Road Commission, 350 Mich. 223, 86 N.W.2d 309, quoting Crosby v. City of Greenville, 183 Mich. 452, 150 N.W. 246, we said:

"* * * it is not essential that every part of the highway, in length or width, should be worked and traveled in order to show the intention of the public to accept the entire highway."

It was further stated in the Pulleyblank case:

'The plaintiffs object that the examples of repair and upkeep testified to are sporadic, in effect that the instances given do not cover, consecutively, year after year. Such testimony is not necessary. Work on county roads reflects not only the state of the municipal treasury, but is adjusted also to the needs of local traffic and local inhabitants. It is clear that the work...