Oliphant v. Frazho

• Decision Date: 08 December 1966
• Docket Number: No. 1452,No. 2,1452,2
• Citation: 146 N.W.2d 685,5 Mich.App. 319
• Parties: William H. OLIPHANT and Gertrude K. Oliphant, his wife, Plaintiffs-Appellees, and Joseph Prinzivalli et al., Intervening Cross-Defendants-Appellees, v. Rose FRAZHO et al., Defendants-Appellees, and Charles Vanneste et al., Intervening Defendants-Appellees, and State of Michigan, Intervening Defendant and Cross-Plaintiff-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 685

146 N.W.2d 685

5 Mich.App. 319

William H. OLIPHANT and Gertrude K. Oliphant, his wife Plaintiffs-Appellees and Joseph Prinzivalli et al., Intervening Cross-Defendants-Appellees, v. Rose FRAZHO et al., Defendants-Appellees and Charles Vanneste et al., Intervening Defendants-Appellees and State of Michigan, Intervening Defendant and Cross-Plaintiff-Appellant.

Cal. No. 1452.

Court of Appeals of Michigan, Division No. 2.

Dec. 8, 1966.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Nicholas V. Olds, Jerome Maslowski, Asst. Attys. Gen., Lansing, for appellant.

Frederick M. Maddock, Detroit, Frank I. Kennedy, Detroit, of counsel, for appellees Oliphant and others.

Robert M. Fraser, St. Clair Shores, for appellees Frazho and others.

Before LESINSKI, C.J., and KAVANAGH and McGREGOR, JJ.

McGREGOR, Judge.

All pertinent points in this case are moot except the land title issue remaining between the appellees and the State of Michigan. The original suit was for the purpose of adjudicating the right to enlarge a canal adjacent to the land in question, and the State of Michigan intervened in order to assert the State's claim to certain unpatented land under the Great Lakes submerged land act, P.A.1955, No. 247, as amended (C.L.S.1961, § 322.701 et seq. (Stat.Ann.1963 Cum.Supp. § 13.700(1) et seq.)).

The land in question is filled bottom land of Lake St. Clair beyond the patent line. The State claims it holds the land as a public trust by virtue of the aforesaid act and P.A.1899, No. 171 (C.L.1948, § 317.291 et seq. (Stat.Ann.1958 Rev. § 13.1121 et seq.)), which act in part dedicated swamp or submerged land along the borders of the Great Lakes as public hunting and shooting grounds and for the benefit of the people. These lands are held, not in a proprietary capacity by the State, but in trust, in a sovereign governmental capacity, for the public. State v. Lake St. Clair Fishing & Shooting Club (1901), 127 Mich. 580, 87 N.W. 117.

The Great Lakes submerged lands act applies only to unpatented submerged lake bottom lands and unpatented made lands in the Great Lakes belonging to the State or held in trust by it. Title to lands conveyed by the United States patentees before statehood does not pass to the State upon admission into the Union. Klais v. Danowski (1964), 373 Mich. 262, 263, 129 N.W.2d 414.

The position of the appellees is that the State should be estopped from asserting its claim. Appellees claim title to the land from their grantor, Emil A. Nelson, who first obtained title in 1911.

In 1927, after vacating a platted subdivision, the land in question was described by the circuit court of Macomb county as:

'Lot 5 of Assessor's Plat No. 21, a part of fractional sections 22 and 23, village of St. Clair Shores, Macomb county, Michigan.'

Subsequently, some time between 1932 and 1941, the land was extended approximately 1,150 feet into Lake St. Clair by Emil A. Nelson, pursuant to a permit granted in 1932 by the United States Corps of Engineers. Title to the easterly 865 feet of the extension beyond the patent line of lot 5 of Assessor's plat No. 21, et cetera, is still in dispute and the subject of this appeal.

On June 3, 1941, Lot 5 of Assessor's Plat No. 21 was bid to the State for delinquent taxes. The auditor general executed a deed therefor to the State of Michigan. On February 10, 1943, Nelson as former owner applied for a land contract from the State land office board. On May 5, 1943, a land contract was executed between Nelson and the board. The description of the land in the land contract is:

'Lot 5, Assessor's Plat No. 21, according to the recorded plat thereof, in Liber 15, page 3.'

Nelson subdivided the area, including the filled-in extension into Lake St. Clair, and designated the plat as 'Ardmore Park Subdivision of Lot 5 of Assessor's Plat No. 21, a part of fractional sections 22 and 23, Town 1 North, Range 13 East.' The plat was executed by Nelson and the State land office board on August 31, 1943, and was recorded in liber 22, page 38 of plats, Macomb county records. It should be noted that the plat of Ardmore Park Subdivision is larger than lot 5 as aforesaid by 865 feet of filled land beyond the patent line.

Nelson paid the balance due on the land contract and was given a quitclaim deed from the State land office board on November 24, 1943, with the following description of the grant:

'Lots No. 1--90 inclusive, Ardmore Park Subdivision of Lot No. 5, Assessor's Plat No. 21, a part of the fractional sections 22 and 23, Town 1 North, Range 13 East, village of St. Clair Shores, Macomb county, Michigan, according to the recorded plat thereof, as recorded in liber 22, page 38 of plats.'

The appellees base much of their claim for estoppel on the fact that the State land office board joined in the platting of Ardmore Park Subdivision, which included the filled land, and the conveyance of the filled land to Emil A. Nelson by the State land office board, which specifically described the land as:

'Lots 1 to 90 inclusive, Ardmore Park Subdivision of Lot 5 of Assessor's Plat No. 21, etcetera.'

Lots 32 to 60 of this subdivision, title to which is in dispute here, are all or partly on the filled land which is not a part of Lot 5 of Assessor's Plat No. 21, etc. Appellees urge that estoppel should lie as to the State's right to claim title to this land because the conveyance by the State, with the expanded description, coupled with the State's long delay in asserting its claim to the filled bottom land will cause injury to innocent third parties if estoppel is denied.

The trial court held that the State was estopped from asserting its claim herein. The holding of the trial court, based on the facts of this case, is against the weight of authority. See 31 C.J.S. Estoppel § 142. The holding of the trial court is also contrary to Lawrence v. American Surety Company of New York on motion for rehearing (1933), 264 Mich. 516, 518, 250 N.W. 295, 88 A.L.R. 535, 546:

'To estop the state, the acts or conduct of the officer must be within the scope of his authority.'

The appellees rely on the case of State v. Flint & Pere Marquette R. Co. (1891), 89 Mich. 481, 51 N.W. 103, for the right of estoppel against the State. The precedent value of that old case is questionable. It has been relied on very little in this century, if at all. The Michigan Supreme Court, in Ellis v. Board of State Auditors (1895), 107 Mich. 528, 65 N.W. 577, did not follow State v. Flint & Pere Marquette R. Co., supra. The comment of Chief Justice McGrath, in his dissening opinion, in Ellis, supra, at page 537, 65 N.W. at page 580, is indicative of the Court's disregard of its earlier position on the question:

'The doctrine of State v. Flint & Pere Marquette Railroad Co. may be questionable; but, while it is recognized as law, I cannot concur in the opinion of the majority.'

The appellees argue that estoppel should lie against the State's enforcement of the statute which was enacted for the protection of State lands on the theory that a sense of equity demands that estoppel apply. The appellees' theory is similar to the theory advanced by the defendants in Lawrence v. American Surety Co., supra. The Supreme Court, addressing itself to this theory, stated (264 Mich. p. 518, 250 N.W. p. 296):

'Defendant's position is unfortunate and appeals to a sense of equity, but apparently was due to a...