Tolksdorf v. Griffith

Decision Date15 May 2001
Docket NumberDocket No. 115032, Calendar No. 1.
Citation626 N.W.2d 163,464 Mich. 1
PartiesGlen TOLKSDORF and Marinda Tolksdorf, David Pendell, Richard Pendell and Karen Pendell, John Luczak and Marcy Luczak, Richard Deisler and Patricia Deisler, Dennis Hill and Nancy Hill, Terrence Tormoen and Lynne Tormoen, Plaintiffs-Appellees, v. John T. GRIFFITH, Jane Griffith, North Woods Conservancy, John T. Foley, Paul Michael Foley, II, and Michelle Foley Sheppard, Defendants-Appellants, Gerald Dahlgren, Defendant.
CourtMichigan Supreme Court

Goodman & Makinen, P.C. (by Michael E. Makinen), Hancock, MI, for plaintiffs-appellees.

Evan Dixon, Hancock, MI, for defendants-appellants.



This case involves the constitutionality of the Opening of Private Roads and Temporary Highways Act (the private roads act), M.C.L. § 229.1 et seq.; MSA 9.281 et seq. The key issue is whether the act provides for an unconstitutional taking under art. 10, § 2 of the Michigan Constitution of 1963. We hold that it does because the act authorizes a taking and the taking primarily benefits a private rather than a public purpose. For that reason, we strike down the act as unconstitutional.

I. The History of the Private Roads Act

Both the Michigan and federal constitutions prohibit the taking of private property for public use without just compensation.1 U.S. Constitution, Am. V; Const. 1963, art. 10, § 2. The Taking Clause of the state constitution is substantially similar to that of the federal constitution. City of Kentwood v. Sommerdyke Estate, 458 Mich. 642, 656, 581 N.W.2d 670 (1998). Const. 1963, art. 10, § 2 provides:

[P]rivate property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.

The private roads act arose from language at art. 18, § 14 of the Michigan Constitution of 1850. This predecessor of art. 10, § 2 of the 1963 Constitution provided:

The property of no person shall be taken for public use without just compensation therefor. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of freeholders; and such amount, together with the expenses of the proceedings, shall be paid by the person or persons to be benefitted.

A similar provision is found in the Michigan Constitution of 1908, art. 13, §§ 1 and 3. However, the current Michigan constitution eliminated the express reference to private roads.

More than eighty years before that change, the Michigan Legislature enacted the private roads act. It allows a private landowner to petition the township supervisor to open a private road across another landowner's property. MCL 229.1; MSA 9.281. A jury consisting of property owners determines whether the road is necessary. MCL 229.2; MSA 9.282. If a private road is authorized, the jury then sets a dollar amount that the petitioner must pay to compensate the owner of the land where the road is built. MCL 229.3; MSA 9.283, M.C.L. § 229.5; MSA 9.285.

II. The Facts and Procedural History of the Present Case

Plaintiffs own section 12, township 57 north, range 33 west, in Allouez Township, Keweenaw County, Michigan. Defendants own a neighboring parcel, section 13.

Section 12 is landlocked, although it can be accessed by foot trails. Plaintiff Glen Tolksdorf acquired section 12 in March of 1992, intending to develop the property and sell it as lots. He attempted without success to acquire an easement from surrounding property owners in order to achieve a paved vehicular connection from his property to a roadway. Those who purchased lots from Tolksdorf are also plaintiffs in this case. In addition to seeking a road across section 13, they seek an easement for utility lines.

In the past, defendants have allowed members of the general public to use the trails on section 13 to access section 12 for recreational purposes. They have also permitted loggers to cross their property. However, they object to the installation of a paved road and utility lines.

Plaintiffs sued, naming as defendants the section 13 property owners as well as Gerald Dahlgren, Allouez Township supervisor, who had refused to commence proceedings to open a private road. In their complaint, plaintiffs sought a determination that they had acquired an easement by prescription.2 The trial court ruled against them. It also denied their request for a writ of mandamus that would compel Dahlgren to proceed under the private roads act.

The Court of Appeals affirmed the trial court's decision concerning the easement issue. However, it found error in the refusal to issue a writ. It remanded the case, with instructions to direct Dahlgren to commence proceedings to open a private road pursuant to the act.

We granted leave limited to the question whether the private roads act is constitutional. 461 Mich. 1014, 611 N.W.2d 797 (2000). The issue whether plaintiffs acquired an easement in section 13 is not before us.

III. The Constitutionality of the Private Roads Act

Review of the constitutionality of a statute presents a question of law that is reviewed de novo. Blank v. Dep't of Corrections, 462 Mich. 103, 112, 611 N.W.2d 530 (2000). A statute is presumed constitutional, unless its unconstitutionality is readily apparent. Id.

Over the years, the Court of Appeals has struggled with whether the private roads act is constitutional. In 1975, the first panel to consider the question found the act "repugnant to Const. 1963, art. 10, § 2." White Pine Hunting Club v. Schalkofski, 65 Mich.App. 147, 149, 237 N.W.2d 223 (1975). Specifically, White Pine Hunting Club found no public purpose justifying the taking authorized by the act.

Seventeen years later, another panel declined to follow White Pine Hunting Club, and found the act constitutional. Bieker v. Suttons Bay Twp. Supervisor, 197 Mich. App. 628, 630, 496 N.W.2d 398 (1992). Bieker said that a public use was embodied in the statute. Id. at 632, 496 N.W.2d 398. Specifically, the Court expressed concern about the depressed value of landlocked property and concluded that "providing access to land is beneficial to the community as a whole." Id.

Judge Shepherd concurred, but wrote separately to express his view that the private roads act had "nothing to do with the taking by a public authority of property for a public purpose." Id. at 633, 496 N.W.2d 398. Instead, he opined that the act authorized a permissible limitation on the private use of land.

The next panel to consider the act's constitutionality disagreed with Bieker, but found itself constrained to follow it. McKeigan v. Grass Lake Twp. Supervisor (McKeigan I), Docket No. 195437, unpublished opinion per curiam, issued May 8, 1998, vacated May 20, 1998, printed at 229 Mich.App. 801, 587 N.W.2d 505 (1998). A special panel was convened to resolve the conflict between McKeigan I and Bieker. McKeighan v. Grass Lake Twp. Supervisor, 234 Mich.App. 194, 196, 593 N.W.2d 605 (1999) (McKeighan II).3

McKeighan II upheld the constitutionality of the act. Id. at 209, 593 N.W.2d 605. It determined that the act had its origins in the state's power to reasonably regulate property usage, rather than its power of eminent domain. Id. The Court also compared the limitation it imposed on property to a common-law easement by necessity. Id. at 201-202, 593 N.W.2d 605. McKeighan II concluded that "the Taking Clause of Const. 1963, art. 10, § 2 is neither implicated nor offended by the act." Id. at 210, 593 N.W.2d 605.

One member of the panel dissented. He felt that the analogy to a common-law easement by necessity was inappropriate. Id. at 215, 593 N.W.2d 605. He agreed that the private roads act did not emanate from the state's power of eminent domain. The land was not taken for public use, but for private use. Id., citing 1 Nichols, Eminent Domain (3d ed.), § 1.11, p. 1-7. However, he disagreed with the majority's conclusion that the act did not implicate the Taking Clause. Id. at 215-216, 593 N.W.2d 605. He would have found the private roads act repugnant to Const. 1963, art. 10, § 2. Id. at 217, 593 N.W.2d 605.4

A state may not deprive any person of life, liberty, or property without due process. U.S. Const., Am. XIV. The state's power to take private property is called its power of eminent domain or condemnation. 2 Cameron, Michigan Real Property Law, § 24.1, p. 1102 (2d ed.).

It is without question that the private roads act authorizes a taking. See Nollan v. California Coastal Comm., 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). In Nollan, the plaintiffs owned beachfront property in California. They wished to tear down an existing home and replace it with a larger one. Id. at 828, 107 S.Ct. 3141. Because the property was on the seacoast, a California statute required the Nollans first to obtain a permit from the Coastal Commission. Id.

The commission agreed to grant the permit only if the Nollans allowed the public an easement over their property, thereby facilitating public access to a nearby public beach. Id. In analyzing whether the terms of the permit constituted a taking under the Fifth and Fourteenth Amendments of the federal constitution, the United States Supreme Court held:

In Loretto [v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)] we observed that where governmental action results in "a permanent physical occupation" of the property, by the government itself or others, see 458 U.S., at 432-433, n. 9,102 S.Ct. 3164, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner," id. at 434-435, 102 S.Ct. 3164. We think a "permanent...

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