Reich v. State, Docket No. 11056
| Decision Date | 24 October 1972 |
| Docket Number | No. 2,Docket No. 11056,2 |
| Citation | 43 Mich.App. 284,204 N.W.2d 226 |
| Parties | Albert REICH, Plaintiff-Appellee, v. STATE of Michigan and the State Highway Commission, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Myron A. McMillan, Asst. Atty. Gen., for defendants-appellants.
Albert Reich, in pro. per.
Before McGREGOR, P.J., and LEVIN and TARGONSKI, * JJ.
The defendant State Highway Commissioner appeals an award by the Court of Claims to plaintiff, Albert Reich. We affirm.
Albert Reich is a dairy farmer. His farm, comprising some 220 acres, is in Otsego Township, Allegan County. In 1961 the defendant State Highway Commissioner began making road improvements in the area of the Reich farm. One of these improvements was the widening of Thirteenth Street, a county road running through the Reich property. The road was widened from a narrow lane, some 15 feet wide, to a full 66 feet wide.
The commissioner did not seek to condemn the portion of the Reich farm which was taken in order to widen Thirteenth Street. It was claimed that the land was subject to an easement provided by the following statutory provision:
(Emphasis supplied.) M.C.L.A. § 221.20; M.S.A. § 9.21.
Construction crews moved onto the land, trees were felled and fences torn down. Reich's dairy business suffered. Crops planted in fields where heavy equipment had run would not grow. Cows ingested scattered pieces of the destroyed fence and died.
Subsequently, in Eager v. State Highway Commissioner, 376 Mich. 148, 136 N.W.2d 16 (1965), the Michigan Supreme Court considered the contention that this statute gave a 4-rod (or 66-foot) easement for all roads used for the statutory period regardless of the width of the road in actual use. The Court rejected this contention, saying:
'(A) highway by user becomes such to the width and extent used. We agree with the trial court that privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of Constitution of 1850, art. 18, § 14, Constitution 1908, art. 13, § 1, which prohibited taking by the public of private property except upon determination of necessity and just compensation 'being first made or secured'.'
The commissioner does not contend either that there has been an express grant of a 66-foot easement for Thirteenth Street through the Reich farm, or that such an easement had been obtained by actual use.
The commissioner raises a number of defenses to the imposition of liability.
Initially, he contends that Reich's claim is barred because he failed to give the state notice of his claim within 6 months as required by the Court of Claims Act. M.C.L.A. § 600.6431(3); M.S.A. § 27A.6431(3). In Reich (that plaintiff Reich is not the plaintiff in this case) v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972), the Michigan Supreme Court held unconstitutional the 60-day notice provision of § 4 of the Government Tort Immunity Act. M.C.L.A. § 691.1404; M.S.A. § 3.996(104). The Court held that this notice requirement denied the equal protection of the laws by favoring governmental tortfeasors over private tortfeasors, to whom the victim is not required to give notice of his claim. This reasoning applies with equal force to the 6-month notice requirement of the Court of Claims Act, and we are, therefore, on the authority of Reich v. State Highway Department, obliged to hold this notice requirement to be likewise unconstitutional. Cf. Crook v. Patterson, 42 Mich.App. 241, 201 N.W.2d 676 (1972).
We turn to the commissioner's contention that this action is barred by the statute of limitations. The limitation for bringing a claim against the state cognizable by the Court of Claims is 3 years. M.C.L.A. § 600.6452; M.S.A. § 27A.6452.
The actual trespass in widening Thirteenth Street occurred during the spring and summer of 1962. Reich filed a notice of intention to file a claim in the Court of Claims on October 22, 1963, and filed a complaint seeking damages in the Court of Claims on July 27, 1964--well within the 3-year limitations period.
The Court of Claims dismissed the action and we affirmed on appeal. Reich v. State Highway Commissioner, 5 Mich.App. 509, 147 N.W.2d 431 (1967). Our affirmance was based on Reich's failure affirmatively to allege in his complaint the date of 'the happening of the event giving rise to the cause of action' as provided for in the Court of Claims Act.
Reich commenced the present action by filing a complaint in the Court of Claims on October 26, 1966, some 2 1/2 months before the opinion in the former appeal was handed down. Although this was more than 3 years after the date of the initial trespass, the present action is not barred because the earlier action served to toll the statute of limitations.
The tolling statute provides:
'(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.' M.C.L.A. § 600.5856; M.S.A. §...
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