Rigoni v. Michigan Power Co.

• Decision Date: 20 March 1984
• Docket Number: Docket No. 64959
• Citation: 345 N.W.2d 918,131 Mich.App. 336
• Parties: Dino RIGONI and Louise Rigoni, Plaintiffs-Appellants, v. MICHIGAN POWER COMPANY, Defendant-Appellee. 131 Mich.App. 336, 345 N.W.2d 918
• Court: Court of Appeal of Michigan — District of US

Page 918

345 N.W.2d 918

Dino RIGONI and Louise Rigoni, Plaintiffs-Appellants, v. MICHIGAN POWER COMPANY, Defendant-Appellee.

Docket No. 64959.

131 Mich.App. 336, 345 N.W.2d 918

Court of Appeals of Michigan.

Submitted Aug. 2, 1983.

Decided Jan. 3, 1984.

Released for Publication March 20, 1984.

[131 MICHAPP 338] Westrate & Holmstrom by Mark A. Westrate, Dowagiac, for plaintiffs-appellants.

Hadsell, Landgraf & Smith by Robert L. Landgraf, Jr., Niles, for defendant-appellee.

[131 MICHAPP 339] Before V.J. BRENNAN, P.J., and SHEPHERD and QUINNELL, ^* JJ.

V.J. BRENNAN, Presiding Judge.

Plaintiffs appeal as of right from a judgment entered against them on May 26, 1982. In their suit, plaintiffs claimed that defendant trespassed on their property when it erected two utility poles and related wires on an area they claimed as their property. After a nonjury trial, the court ruled that the utility poles were within a public right of way and plaintiffs had no cause of action.

The key issue in this case is the width of Celery Center Road in Van Buren County. Plaintiffs live and farm on property abutting a portion of that road. They own two neighboring parcels of land along the road. One is unfenced, and plaintiffs have farmed it to within five or six feet of the pavement on Celery Center Road. Plaintiffs purchased the other parcel of property in 1962. This parcel is fenced, the fence running parallel to Celery Center Road at a distance of about 29 feet from its center line. Plaintiffs do not farm outside of that fence, although they do mow it two or three times a summer to within five or six feet of the pavement and have also removed brush from the area.

Celery Center Road is a local road, treated by the county as four rods (66 feet) wide. The road was never formally dedicated as a public highway. It does not follow a section line, but is on a quarter section line. Its paved portion is 19 feet wide. It has no gravelled shoulder and no ditch. There was evidence of four types of uses which defendant claims were maintained by the county [131 MICHAPP 340] in the strip of land between the pavement and plaintiffs' fence:

1. Periodic mowing in the summer to a line five feet from the pavement;

2. Two mailboxes for plaintiffs' neighbors, one situated two feet from the pavement, the other four feet back from the pavement;

3. A "stop ahead" sign situated eight feet from the pavement;

4. Snow thrown from snow plowing during the winter reaches all the way to plaintiffs' fence, at least on occasion.

It is undisputed that defendant holds a valid franchise from the local township to run utility lines to customers living there. Defendant also secured verbal permission from a member of the Van Buren County Road Commission staff to erect utility poles along Celery Center Road. On December 13, 1978, defendant received written permission on the standard form used by the road commission. The written permit included language requiring defendant to secure permission from abutting landowners before erecting any poles.

Defendant had tried to secure permission from plaintiffs' neighbors across the road, but was unable to. Without securing permission from plaintiffs, it proceeded in November, 1978, before receiving the permit, to erect the eight poles on plaintiffs' side of the road, next to their fence. The poles are about 27 feet from the center of the road. Defendant had not ascertained whether the road commission had a right of way which included the sites of the utility poles.

Plaintiffs protested, both to defendant and to the county. When work did not stop, they filed suit alleging trespass and interference with their farming operations. Plaintiffs sought damages and an [131 MICHAPP 341] order to remove the poles and utility lines. The trial court's judgment denied them this relief, and plaintiffs have appealed.

Plaintiffs first argue that the trial court findings were clearly erroneous.

When a trial court makes findings of fact, they must not be set aside by an appellate court unless they are clearly erroneous. GCR 1963, 517.1. A reviewing court must treat the trial court's findings with substantial deference in light of its superior ability to assess the credibility of evidence. Habersack v. Rabaut, 93 Mich.App. 300, 304, 287 N.W.2d 213 (1979). Findings of fact should be reversed only if this Court is left with the definite and firm conviction that a mistake has been made. Pohl v. Gilbert, 89 Mich.App. 176, 179, 280 N.W.2d 831 (1979); Hartford Ins. Group v. Mile High Drilling Co., 96 Mich.App. 455, 461, 292 N.W.2d 232 (1980); Angelo DiPonio Equipment Co. v. Dep't of State Highways, 107 Mich.App. 756, 760, 309 N.W.2d 566 (1981).

The first finding contested by plaintiffs is rendered in the trial court's opinion as follows:

"The Van Buren County Road Commission mowed a five-foot width east beyond the paved portion of the road at least once each summer and more often, as many as three or four times, when it was able to do so, dependent upon crew and funding available."

There was no evidence in the record that the road commission ever mowed the strip in question more than once a year. The finding not only is clearly erroneous, it fails for insufficient evidence. However, the error is harmless since this is not a case trying to establish the line between plaintiffs' property and that of the road commission with precision. If the five-foot strip is clearly road commission[131 MICHAPP 342] property, it has no effect on title to the area occupied by the utility poles.

The second finding challenged by plaintiffs follows immediately after the first in the record:

"Celery Center Road has been open to public travel during the winter months and the road commission plowed snow from the paved portion and threw the snow as far as the fence."

This is not a finding that the snow always was thrown to the fence, nor that the use was notorious, open, or exclusive. As a finding that snow had at least, on occasion, reached the fence, there was sufficient evidence to support it, including some from one of the plaintiffs. On this basis, the finding was not clearly erroneous.

The final contested finding reads as follows:

"The Van Buren County Road Commission has classified Celery Center Road as a 'local' secondary road in regard to its right of way, under Public Act 51, which is 66 feet or four rods, and it has certified the road to the State of Michigan as a local road for monies returned to the county under that public act. The road commission has considered where there is a monument, such as a fence, that the right of way would go at least to that point. The maintenance of Celery Center Road has included repair of shoulders and of washouts, as well as snow removal.

"The road commission stated it did not surrender dominion over the right of way because it did not mow over one five-foot width and it did plow the throw [sic] snow at least up to the fence as shown in the photographic exhibits."

The only part of this finding upon which there is no evidence is the phrase, "The road commission stated * * * ". The road commission never directly made a statement in this litigation since it was not [131 MICHAPP 343] a party. However, one of its agents did describe the commission's position without objection. The finding accurately represents the content of that testimony. The ascription of the statement directly to the commission may have been clearly erroneous, but it is also harmless.

Next, we address the question of whether there was sufficient evidence to support a finding of "highway by user" over the disputed area.

"Highway by user" is the term given to describe how the public can acquire title to a highway by a sort of prescription where no formal dedication has ever been made. The acquisition of highways by user is governed by M.C.L. Sec. 221.20; M.S.A. Sec. 9.21:

"Sec. 20. All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines."

This language has been heavily modified by subsequent case law. The elements of a highway by user have been elaborated to require evidence of a defined line of travel with definite boundaries, used and worked upon by public authorities, traveled upon by the public for ten (or in some situations eight) consecutive years without interruption, in a manner open, notorious and exclusive. [131 MICHAPP 344] Alton v. Meeuwenberg, 108 Mich. 629, 634-637, 66 N.W. 571 (1896); Indian Club v. Lake County Road Comm'rs, 370 Mich. 87, 89, 120 N.W.2d 823 (1963); St. Ignace v. McFarlane, 45 Mich.App. 81, 84-85, 206 N.W.2d 226 (1973). Nor can the use be by permission of the landowner. Pearl v. Torch Lake Twp., 71 Mich.App. 298, 306-307, 248 N.W.2d 242 (1976), lv. den. 399 Mich. 844 (1977). If the elements are established, the statute operates to raise a rebuttable presumption that the road is four rods wide, or 66 feet.

However, if the landowner offers any evidence to rebut the presumption, the situation changes. Evidence that a structure exists within the four rod statutory width, or any other evidence that the landowner retained control of an area within the statutory width, is sufficient to rebut the presumption. Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958); Eager v. State Highway Comm'r, 376 Mich. 148, 151-152, 154,...