Schurtz v. Wescott
| Decision Date | 21 December 1938 |
| Docket Number | 73,October Term, 1938.,Nos. 72,s. 72 |
| Citation | 286 Mich. 691,282 N.W. 870 |
| Parties | SCHURTZ v. WESCOTT. LA GRANGE TP. et al. v. SCHURTZ. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Donna V. Schurtz against Dana E. Wescott with which is consolidated by stipulation the suit by Township of La Grange, Diamond Lake Association, Elick Lowitz, Nellie Lowitz, Charles A. Dolph, Jennie M. Dolph, James O. Hain, Dana E. Wescott, Fern Wescott, William F. Stockford, and the Park Shore Association against Donna V. Schurtz. Decree for the defendant in the first suit and for the plaintiffs in the second suit, and Donna V. Schurtz, the plaintiff in the first suit and defendant in the second suit, appeals.
Affirmed.
Appeal from Circuit Court, Cass County, in Chancery; Glenn E. Warner, judge.
Argued before the Entire Bench, except BUTZEL, J.
Harry C. Howard, of Kalamazoo, and Carroll B. Jones, of Marcellus, for appellant, Donna V. Schurtz.
Clarence M. Lyle, of Cassopolis, Yeagley & Yeagley, of South Bend, Ind., and Asa K. Hayden, of Cassopolis, for appellees.
In 1891, Frank S. Jones and Carroll S. Jones with other adjoining land owners caused to be laid out and recorded the plat of Diamond Lake Park near Diamond Lake in Cass county. In the plat there are 112 lots and two parcels marked ‘North Park’ and ‘South Park’. The ‘parks' are separted by a street or highway known as Forest avenue, and are the part of the plat closest to the lake. The ‘parks' on their eastern boundary along the lake shore are approximately 400 feet in length, 48 feet wide at the south end and 154 feet wide at the north end. The streets in the plat were dedicated to the public, but the ‘parks' were not so dedicated. On the plat, the ‘parks' are bordered on the west by a street 50 feet wide and known as Park street. Eight lots border on the parcel platted as Park street. In the recorded plat it is stated that the streets as shown on said plat are dedicated to the use of the public for street purposes only.
Appellant, Donna V. Schurtz, is the heir and daughter of Carroll S. Jones and claims full title to the ‘parks' by virtue of inheritance from her father and uncle and by purchase from her brother, Carroll B. Jones. Appellee Wescott is a lot owner in Diamond Lake Park.
Donna V. Schurtz first began suit to restrain Wescott's waste and unauthorized use of her premises and the parks, to prevent him from interfering with her control and enjoyment of the property, to restrain crection or maintenance of any boat house, and to abate a dog nuisance maintained by Wescott.
Wescott, the township of LaGrange and others filed a bill to quiet title to the parks and adjoining streets and to restrain the removal of the dance hall, boat houses, piers and other property along the shore line of said lake.
The two suits were consolidated into one case at the trial and on appeal. The trial court after a hearing held that the parks were not public parks; that the township did not hold the title in trust for the benefit of the public; that ownership of any lot in the plat carried with it private rights to the use of the parks as parks in common with other lot owners; that the dog kennels owned by Wescott are not a nuisance; and that dedication of Park street was not revoked.
Donna V. Schurtz appeals and contends that she owns the fee title to the parks and land east thereof to the lake; that as owner of the parks, she had the sole right to control their use as well as the use of the shore line; that the dedication of Park street as platted was properly revoked and as a result of such revocation she has title thereto; that the dogs and pens maintained by Wescott are a nuisance; and that the court failed to declare the rights of the parties.
In our examination of the record we find that the streets were expressly dedicated by written statement on the plat; and that there was no written statement dedicating the parks to the public except the words ‘north park’ and ‘south park’. Appellees contend that the facts are such that the trial court could have found that there was either a statutory or common law dedication of the parks. In so far as the mentioned streets are concerned, we arrive at the conclusion that it was the intention of the owner to set apart these streets for the use of the grantees.
In Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3, we said: ‘But it is also the rule in this and other states that the platting and sale of lots constitute a dedication of streets, etc., delineated on the plat, as between the grantors and the purchasers from them.’
Appellees also contend that the sale of lots in reference to a plat is an offer by proprietor to dedicate the parks to the public and such sales give private rights in such parks to the lot owners; and that public rights attach upon acceptance by the public either through general user or by acts of public authorities.
In Pulcifer v. Bishop, supra, we said:
‘As affecting the public, this court is committed to the rule, obtaining in many other states,
“That the mere making of the sale of lots with reference to a map or plat prepared or...
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...areas are designated as parks passes to the purchasers of the lots a common right to use such areas for park purposes. Schurtz v. Wescott, 286 Mich. 691, 282 N.W. 870. It is settled by the authorities in this State that the purchasers of lots in the original plat were entitled to the preser......
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