Marx v. Department of Commerce

• Decision Date: 12 November 1996
• Docket Number: Docket Nos. 188203 and 188287
• Citation: 558 N.W.2d 460,220 Mich.App. 66
• Parties: Raymond L. MARX and Jean Marx, Plaintiffs-Appellees, v. DEPARTMENT OF COMMERCE, formerly known as Treasurer of Michigan, Defendant-Appellee, and Charlevoix County Road Commission and Charlevoix County Drain Commission, Defendants, and Township of Bay, Defendant-Appellant, and Michigan Bell Telephone, also known as Ameritech, Top of Michigan Electric, Jonathan L. Borisch, Mary K. Borisch, Robert P. Lafave, Melanie Lafave, Patric T. Ainslie, Sandra L. Ainslie, Rolland Johnson, John R. Johnson, Sherri Jo Bradley, Not Participating, and Michigan Townships Association, Amicus Curiae. Raymond L. MARX and Jean Marx, Plaintiffs-Appellees, v. DEPARTMENT OF COMMERCE, formerly known as Treasurer of Michigan, Defendant-Appellee, and Charlevoix County Road Commission, Defendant-Appellant, and Charlevoix County Drain Commission and Township of Bay, Defendants, and Michigan Bell Telephone, also known as Ameritech, Top of Michigan Electric, Jonathan L. Borisch, Mary K. Borisch, Robert P. Lafave, Melanie Lafave, Patric T. Ainslie, Sandra L. Ainslie, Rolland Johnson, John R. Johnson, Sherri Jo Bradley, Not Participating, and Michigan Townships Association, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 460

558 N.W.2d 460

220 Mich.App. 66

Raymond L. MARX and Jean Marx, Plaintiffs-Appellees, v. DEPARTMENT OF COMMERCE, formerly known as Treasurer of

Michigan, Defendant-Appellee,

and

Charlevoix County Road Commission and Charlevoix County

Drain Commission, Defendants,

and

Township of Bay, Defendant-Appellant,

and

Michigan Bell Telephone, also known as Ameritech, Top of

Michigan Electric, Jonathan L. Borisch, Mary K. Borisch,

Robert P. Lafave, Melanie Lafave, Patric T. Ainslie, Sandra

L. Ainslie, Rolland Johnson, John R. Johnson, Sherri Jo

Bradley, Not Participating,

and

Michigan Townships Association, Amicus Curiae.

Raymond L. MARX and Jean Marx, Plaintiffs-Appellees, v. DEPARTMENT OF COMMERCE, formerly known as Treasurer of

Michigan, Defendant-Appellee,

and

Charlevoix County Road Commission, Defendant-Appellant,

and

Charlevoix County Drain Commission and Township of Bay, Defendants,

and

Michigan Bell Telephone, also known as Ameritech, Top of

Michigan Electric, Jonathan L. Borisch, Mary K. Borisch,

Robert P. Lafave, Melanie Lafave, Patric T. Ainslie, Sandra

L. Ainslie, Rolland Johnson, John R. Johnson, Sherri Jo

Bradley, Not Participating,

and

Michigan Townships Association, Amicus Curiae.

Docket Nos. 188203 and 188287.

Court of Appeals of Michigan.

Submitted Oct. 2, 1996, at Grand Rapids.

Decided Nov. 12, 1996, at 9:15 a.m.

Released for Publication Feb. 4, 1997.

Smith & Powers by Wayne Richard Smith, Petoskey, for plaintiffs-appellees.

Cummings, McClorey, Davis, Acho & Tremp, P.C. by Catherine D. Jasinski, Traverse City, for Wayne Saunders, as Chairperson of the Charlevoix County Road Commission.

Stedman, Fershee & Fershee by David W. Fershee, Petoskey, for Bay Township.

Before FITZGERALD, P.J., and O'CONNELL and T.L. LUDINGTON, ^* JJ.

O'CONNELL, Judge.

Plaintiffs filed a complaint to quiet title to a strip of land situated between two parcels of property they own in Bay Township, Charlevoix County. The strip of land had been dedicated to Bay Township in 1911. Plaintiffs alleged that neither Bay Township nor the Charlevoix County Road Commission ever accepted the dedication. Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs responded by requesting summary disposition pursuant to MCR 2.116(I)(2). The trial court granted summary disposition for plaintiffs and ordered defendants to vacate the property. Defendants Bay Township and Charlevoix County Road Commission now appeal this order, arguing that the trial court erred in finding that the dedication had never been accepted. ¹ We affirm.

In August 1911, George and Laura Franklin platted a subdivision, Zenith Heights, in Bay Township, Charlevoix County. The plat stated that all streets and alleys shown on the plat were dedicated to the use of the public. A strip of land situated between Lots six and seven of the subdivision was dedicated as a road known as Birch Lane. Birch Lane ran from Valley Brook Avenue to Walloon Lake. On August 14, 1911, Bay Township approved the plat.

Plaintiffs bought Lot six in 1970, Lot seven in 1976, and Lot five in 1977. Plaintiffs built a residence on Lot seven, including a driveway that encroaches on Birch Lane. In 1993, plaintiffs filed a complaint to vacate Birch Lane and to obtain a declaratory judgment quieting title. Plaintiffs claimed that although the lane was dedicated to the township for use as a road in 1911, the offer of dedication was never accepted.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the approval of the plat, the public expenditures for road maintenance in Zenith Heights, and the transfer of jurisdiction over the road to the commission pursuant to the McNitt act, 1931 P.A. 130, M.C.L. 247.1 et seq.; M.S.A. § 9.141 et seq., indicated that the dedication had been accepted.

In response, plaintiffs argued that the evidence established that the dedication never had been accepted. Plaintiffs argued that because there never had been a McNitt act resolution accepting Birch Lane, and because plaintiffs had used the land in a manner inconsistent with public dedication, there was no acceptance. The trial court found that defendants failed to establish any act of formal acceptance and granted summary disposition for the plaintiffs.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Lash v. Allstate Ins. Co., 210 Mich.App. 98, 101, 532 N.W.2d 869 (1995). The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment for the opposing party. MCR 2.116(I)(2). We review summary disposition decisions de novo, to determine "whether the prevailing party was entitled to judgment as a matter of law." G & A Inc. v. Nahra, 204 Mich.App. 329, 330, 514 N.W.2d 255 (1994).

I

At issue in the instant case is whether Birch Lane, dedicated to the public in 1911, was ever accepted by a government authority. Defendants first claim that under the McNitt act, the defendant road commission assumed jurisdiction over all township roads in Charlevoix County, including Birch Lane. The McNitt act, which was repealed by 1951 P.A. 51, provided, in § 2, as follows:

On or before April first, nineteen hundred thirty-two, the board of county road commissioners in each of the several counties of the state shall take over and incorporate into the county road system, twenty per cent of the total township highway mileage so determined and fixed by the state highway commissioner in each township of their respective counties. Thereafter each such board of county road commissioners shall, on April first of each succeeding year, take over and incorporate into their county road system, an additional twenty per cent of such township highway mileage until the entire township highway mileage in all of the townships of each of such counties has been taken over and made a part of the county highway systems. In the year next following the taking over of all such highways all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages shall be taken over and become county roads. [M.C.L. § 247.2; M.S.A. § 9.142.]

Defendants concede that they have been unable to locate evidence of a McNitt act resolution in which the defendant road commission assumed such jurisdiction, but they argue that defendant road commission acted consistently with the McNitt act and thereby assumed jurisdiction. The only evidence defendants offer in support of this contention is a McNitt act map that purportedly shows Zenith Heights and a 1938 highway planning survey of Zenith Heights indicating the total mileage of certified roads in the subdivision. The issue is whether this evidence establishes McNitt act assumption of jurisdiction over Birch Lane.

In Kraus v. Dep't of Commerce, 451 Mich. 420, 547 N.W.2d 870 (1996), the Supreme Court considered the issue whether a general McNitt act resolution, in which the county declared that it had assumed jurisdiction over all township roads, constituted acceptance of a dedicated road that was not specifically named in the resolution. Id. at 425, 547 N.W.2d 870. The Court held that such a resolution was not effective acceptance:

Given that the McNitt act required county road commissions to take over township roads, we believe that, with respect to a McNitt resolution that was only general in nature, the instant panel's holding would run the risk of imposing duties and financial responsibilities on a county for dedicated roads that the county did not knowingly or intentionally accept. [Id. at 429-430, 547 N.W.2d 870.]

The Court concluded that a McNitt resolution that did not expressly identify either the platted road in dispute or the recorded plat in which the road was dedicated was insufficient to effect manifest acceptance of the offer to dedicate the road to public use. Id. at 430, 547 N.W.2d 870.

In the instant case, defendants have produced no evidence of even a general McNitt resolution, but, instead, argue that, because defendant road commission took actions consistent with the McNitt act, its actions should be construed as acceptance. However, by analogy to Kraus, supra, such actions cannot constitute acceptance unless they specifically relate to the road or plat in question. Id. at 430, 547 N.W.2d 870.

The McNitt act map defendants offer as evidence does not relate to Birch Lane. Indeed, there is nothing on the map that indicates the purpose or significance of the map. We are unable to infer that the map establishes McNitt act acceptance of Birch Lane. Similarly, the mileage survey indicates that Birch Lane's mileage has not been included in the total mileage of certified roads in Zenith Heights, evidence that militates against defendants' position. Furthermore, we are unable to deduce from the survey that the information even pertains to the McNitt act in any way.

Therefore, in light of the dearth of evidence suggesting that defendants assumed jurisdiction over Birch Lane pursuant to the McNitt act, we conclude that the trial court properly determined that defendants presented insufficient evidence to withstand plaintiffs' cross motion for summary disposition pursuant to MCR 2.116(C)(10) and (I)(2).

II

Defendant Bay Township next contends that summary disposition was inappropriate because, regardless of the issue of the McNitt act, it offered evidence to demonstrate acceptance of the dedication. However, as with defendant township's argument in the context of the McNitt act, we again find the evidence advanced by defendant to be insufficient.

Our Supreme Court has recently held that in cases involving a petition to vacate...