Missaukee Lakes Land Co. v. Missaukee County Road Com'n, 10

• Decision Date: 16 May 1952
• Docket Number: A,No. 10,10
• Citation: 53 N.W.2d 297,333 Mich. 372
• Parties: MISSAUKEE LAKES LAND CO. v. MISSAUKEE COUNTY ROAD COMMISSION et al. pril Term.
• Court: Michigan Supreme Court

Page 297

53 N.W.2d 297

333 Mich. 372

MISSAUKEE LAKES LAND CO. v. MISSAUKEE COUNTY ROAD COMMISSION et al.

No. 10, April Term.

Supreme Court of Michigan.

May 16, 1952.

Voorhies, Long, Ryan & McNair, Detroit, for Missaukee Lakes land co.

Charles H. Miltner, Cadillac, for Missaukee County Road Commission and others.

Before the Entire Bench.

BOYLES, Justice.

Plaintiff is a private hunting and fishing club which owns about 6,500 acres of land in Caldwell and Lake townships in Missaukee county. There are several lakes on the property, and its usefulness is recreational, hunting and fishing. The property is traversed by numerous roads and trails which plaintiff claims are private roads. The entire acreage is fenced in.

The road here particularly involved runs past Dyer lake on plaintiff's property from county road 42. In 1949 the plaintiff extended its fence which was along said county road to cross the entrance from county road 42 on the Dyer lake road and opened a new entrance somewhat south for a better view of approaching traffic. The defendant county road commission had the fence across the road removed, claiming it was a public highway. The fence was replaced by plaintiff and again removed by said defendant, whereupon plaintiff filed the instant bill of complaint in the circuit court for Missaukee county to enjoin the defendants from further interfering with the fence. The defendants, by cross bill, claim that the Dyer lake road, as well as some 10 or more other roads in plaintiff's property, are public highways and ask the Court to decree accordingly. By stipulation, counsel have agreed that the instant case involving the Dyer lake road will control the question whether the other roads are private roads or public highways. The trial court held that they were public roads, dismissed plaintiff's bill of complaint, and from the decree to that effect the plaintiff appeals.

The trial court relied mainly on 3 claims advanced by the defendants and again relied upon by the defendants on the appeal.

(1) The county road commission had certified to the State highway commissioner in 1939 that the roads in question were county roads, under P.A.1939, No. 36, an amendment to the McNitt act. ¹ While disputed, the record indicates that these roads had not been taken over by the county road commission originally as public highways ways under the McNitt act during the 5-year period allowed by that act from 1931 to 1936. However, that act as amended by P.A.1939. No. 36, after the expiration of said original 5-year period, provided that the State highway commissioner and the several boards of county road commissioners should biennially 'fix the total mileage of roads in each county of the state in actual use for public travel at least 3 months each year and taken over by the board of county road commissioners as county roads' subsequent to 1931. We hold that the McNitt act, and the later amendments, refer to the taking over of township roads and do not authorize the county road commission to take private roads into the county public highway system as public highways. Nor would the proofs in this case justify any conclusion that public use of the roads here involved had automatically converted them from private to public roads under C.L. 1948, § 221.20, Stat.Ann. § 9.21. See Green v. Belitz, 34 Mich. 512; Irving v. Ford, 65 Mich. 241, 32 N.W. 601; Stickley v. Township of Sodus, 131 Mich. 510, 91 N.W. 745, 59 L.R.A. 287. Hence, no particular importance can be attached to the action of the county road commission in certifying the roads in question to the State highway commissioner, for the obvious purpose of using them to increase the apportionment of State highway money allowed counties for county roads under said act. If the Dyer lake road was a private road of the plaintiff, its character could not have been changed to a public highway by said action of the county road commission. Under its title and the other provisions of the McNitt act and amendments thereto, ² it applies only to the taking over of township roads.

(2) Considerable importance was attached in the trial court to a petition in 1947 or 1948 addressed to the county road commission and the township boards of Caldwell and Lake townships, indicating it was signed by 9 property owners (including directors of the plaintiff) and asking that 3 designated roads on plaintiff's property (including the Dyer lake road) be closed. No proceedings were had on the petition and it was never acted upon by the township boards or the county road commission. The reason for such inaction does not appear in the record. Defendants claim that it now estops the plaintiff from claiming these roads are private roads. Regardless of the probative value of the petition, it does not operate as an estoppel of the plaintiff's claim that the roads are private, or to change their character to public roads. It is logical to consider that the previous use of the roads by the public and the unsuccessful efforts of the plaintiff to prevent such claimed unauthorized use by fencing, posting signs, patrolling during the hunting season, had created a doubt as to whether the public had made such use of the roads as to change their character, and that the petitioners felt that this doubt might be definitely settled by action of the public authorities abandoning the roads. No action was taken, and the doubt remained. Apparently it still does.

(3) The roads in question had been used by the public. The county road commission and the State conservation commission occasionally did repair and maintenance work on the roads in question--mostly other than the Dyer lake road. No doubt these are elements to consider in determining whether the roads (and particularly the...