Rochow v. Spring Arbor Tp.
| Decision Date | 16 October 1986 |
| Docket Number | No. 82818,82818 |
| Parties | John J. ROCHOW and Ellen Joyce Rochow, Plaintiffs-Appellants, v. SPRING ARBOR TOWNSHIP and Jackson County Road Commission, Defendants-Appellees. 152 Mich.App. 773, 394 N.W.2d 102 |
| Court | Court of Appeal of Michigan — District of US |
[152 MICHAPP 774] Marks & Smith, P.C. by James O. Marks, Jonesville, for plaintiffs-appellants.
Kelly, Kelly & Kelly by William J. Kelly, Jackson, for Jackson County Road Comm'n.
[152 MICHAPP 775] Before R.B. BURNS, P.J., and BRONSON and TIMMS *, JJ.
Plaintiffs' complaint for injunctive relief charged that defendants' contemplated activities in removing certain trees along Bowerman Road in Spring Arbor Township, Jackson County, and in widening and paving said road would violate the provisions of the Michigan Environmental Protection Act (herein MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq., and would result in a taking of plaintiffs' property without just compensation. Following an evidentiary hearing, the circuit judge found no cause for action and dismissed the complaint. We affirm.
Plaintiffs, who have resided on Bowerman Road for over 10 years, own a 17-acre parcel on the west side of the road, on which their residence is located and which has 75 feet of frontage on the road, together with a single-family dwelling on a 5-acre parcel on the east side of Bowerman Road, which includes 330 feet of road frontage.
The road is a heavily tree-lined, graveled, rural secondary road under the jurisdiction of defendant Jackson County Road Commission, and was established many, many years ago under the doctrine of user as provided in M.C.L. Sec. 221.20 et seq.; M.S.A. Sec. 9.21 et seq. The road bed, or traveled portion of the road, is approximately 24 to 26 to 28 feet in width, depending upon whose testimony is to be believed. There is no shoulder or ditching on either side of Bowerman Road as it passes plaintiffs' property. The lawn located on plaintiffs' 5-acre parcel runs directly to the edge [152 MICHAPP 776] of the road and has been maintained by plaintiffs since they have owned the property.
Defendants' project for reconstructing Bowerman Road anticipated expanding the road to a width of 44 feet, which would include shoulders and drainage ditches on both sides, and further contemplated the removal of all trees within five to six feet of the edge of the shoulders of the roadway as widened. Plaintiffs' testimony indicated that there were 248 trees of varying sizes which had been marked for removal in the .7-mile length of the project.
Since this appeal was taken, substantially all of the work contemplated on Bowerman Road has been completed.
Plaintiffs contend that defendant road commission summarily embarks upon tree removal throughout Jackson County without consideration of environmental factors and that the circuit court should compel defendant road commission to adopt rules that would require the consideration of environmental factors in all of its road construction projects.
Plaintiffs further contend that the widening of Bowerman Road to 44 feet constitutes a taking of from 16 to 20 feet of their property of varying lengths, depending upon which parcel of land is considered, without just compensation being paid for the land.
The issue of the refusal of the circuit court to compel defendant road commission to formulate rules requiring consideration of environmental factors in all of its road construction projects was first raised in this appeal. Generally, this Court will not review issues which are raised for the first time on appeal. Sowels v. Laborers' International Union of North America, 112 Mich.App. 616, 623, 317 N.W.2d 195 (1981). However, even if this issue [152 MICHAPP 777] had been preserved, upon careful examination of the evidence and the findings of the court, and in light of Kimberly Hills Neighborhood Ass'n. v. Dion, 114 Mich.App. 495, 320 N.W.2d 668 (1982), and Portage v. Kalamazoo County Road Comm, 136 Mich.App. 276, 355 N.W.2d 913 (1984), lv. den., 422 Mich 883 (1985), we find no error in the court's determination that no violation of MEPA existed.
Further, the record discloses a paucity of evidence to establish that the Bowerman Road project was merely a part of an overall policy by defendant road commission to summarily remove trees without consideration of environmental factors.
Plaintiffs suggest that because of their mowing of the grass between the traveled portion of the roadway and the remainder of the statutory 33-foot right of way along the 330-foot frontage of plaintiffs' 5-acre parcel, they have retained control over this area. They contend that by widening the roadway to 44 feet the county would be taking a parcel of their land of dimensions from 16 to 20 feet wide and 330 feet long without just compensation therefor. For this proposition, plaintiffs rely upon Rigoni v. Michigan Power Co., 131...
To continue reading
Request your trial
-
West Michigan Park Ass'n, Inc. v. Fogg
...We agree with the trial court that the plaintiffs' pleadings do not state a claim for adverse possession. See Rochow v. Spring Arbor Twp., 152 Mich.App. 773, 394 N.W.2d 102 (1986). Moreover, we agree with the trial court that this issue is res judicata based upon West Michigan Park Ass'n. v......
-
Kent County Road Com'n v. Hunting
...actual use which meets the highway by user test outlined above. Eager, supra, pp. 154-155, 136 N.W.2d 16. In Rochow v. Spring Arbor Twp, 152 Mich.App. 773, 394 N.W.2d 102 (1986), this Court further addressed the question of what is needed for a landowner to rebut the presumption. The Court ......