Twp. of Grayling v. Berry

• Decision Date: 23 July 2019
• Docket Number: No. 344297,344297
• Citation: 329 Mich.App. 133,942 N.W.2d 63
• Court: Court of Appeal of Michigan — District of US
• Parties: TOWNSHIP OF GRAYLING, Plaintiff/Third-Party Defendant-Appellee, v. Alan BERRY and Louis Scarpino, Defendants, and John Gutkowski, James Bokhart, Robert Buchholz, Nancy Chartier, and Douglas Elsworth, Defendants/Third-Party Plaintiffs-Appellants, and Carol Buchholz, Daniel Bujalski, Renee Bujalski, Betty Bokhart, Katherine Chesney, Michele Gutkowski, Don Hollis, Matt Latusek, Katie Latusek, Karen Martella, Michael Sahr, Sally Sahr, Tim Scarpino, Christina Scarpino, Connie Stevens, Michael Stevens, Judy Mermeesch, Paul Wagner, Joanne Wagner, Dan Whitney, Sherry Whitney, and Marjorie Whitney, Third-Party Plaintiffs-Appellants, and Director of the Department of Energy, Labor, & Economic Growth, Chairperson of the Board of Crawford County Road Commission, Crawford County Drain Commissioner, Director of the Department of Transportation, Director of the Department of Natural Resources, Great Lakes Energy, Michael Mitchell, and Jill Mitchell, Third-Party Defendants-Appellees, and Frontier Communications, Charter Communications, Michael Bushre, Kelly Bushre, Raymond Confer, Wendy Confer, David Constantine, Deanna Constantine, Michael Kolka, Harry & Luella Kolka Trust, Charles Thiel, and Monique Thiel, Third-Party Defendants.

329 Mich.App. 133

942 N.W.2d 63

TOWNSHIP OF GRAYLING, Plaintiff/Third-Party Defendant-Appellee,

v. Alan BERRY and Louis Scarpino, Defendants,andJohn Gutkowski, James Bokhart, Robert Buchholz, Nancy Chartier, and Douglas Elsworth, Defendants/Third-Party Plaintiffs-Appellants,andCarol Buchholz, Daniel Bujalski, Renee Bujalski, Betty Bokhart, Katherine Chesney, Michele Gutkowski, Don Hollis, Matt Latusek, Katie Latusek, Karen Martella, Michael Sahr, Sally Sahr, Tim Scarpino, Christina Scarpino, Connie Stevens, Michael Stevens, Judy Mermeesch, Paul Wagner, Joanne Wagner, Dan Whitney, Sherry Whitney, and Marjorie Whitney, Third-Party Plaintiffs-Appellants,andDirector of the Department of Energy, Labor, & Economic Growth, Chairperson of the Board of Crawford County Road Commission, Crawford County Drain Commissioner, Director of the Department of Transportation, Director of the Department of Natural Resources, Great Lakes Energy, Michael Mitchell, and Jill Mitchell, Third-Party Defendants-Appellees,andFrontier Communications, Charter Communications, Michael Bushre, Kelly Bushre, Raymond Confer, Wendy Confer, David Constantine, Deanna Constantine, Michael Kolka, Harry & Luella Kolka Trust, Charles Thiel, and Monique Thiel, Third-Party Defendants.

No. 344297

Court of Appeals of Michigan.

Submitted July 12, 2019, at Lansing.

Decided July 23, 2019, 9:00 a.m.

Michael T. Edwards for John Gutkowski, James Bokhart, and other third-party plaintiffs.

Carey & Jaskowski, PLLC (by William L. Carey and Richard J. Jaskowski, Grayling) for Grayling Township and the chairperson of the Crawford County Board of Road Commissioners.

Before: O'Brien, P.J., and Fort Hood and Cameron, JJ.

Cameron, J.

The Township of Grayling (hereinafter, Grayling) sued seven residents of Grayling, seeking declaratory and injunctive relief regarding the scope of the dedications of three specific platted roads located in a subdivision of Grayling known as Portage Lake Park. After this lawsuit was filed, those seven residents, along with 22 other residents (hereinafter referred to collectively as the residents), filed a third-party claim against Grayling and the chairperson of the Crawford County Board of Road Commissioners (hereinafter, the Road Commission Chairperson), among others. The residents appeal the trial court's order granting partial summary disposition in favor of the Road Commission Chairperson under MCR 2.116(C)(4) (lack of subject-matter jurisdiction) and (C)(10) (no genuine issue of material fact) on the residents' amended counterclaim and a March 26, 2018 order granting summary disposition in favor of Grayling on its claims. Because we agree that the trial court properly granted summary disposition of the residents' claims, we affirm.

I. BACKGROUND

At the center of this case is a dispute involving three platted roads: Walnut Plaisance, Lincoln Park Boulevard, and portions of Portage Lake Drive, all of which are located in Portage Lake Park. The three roads were recorded in 1901 under three separate additions—the first, second, and fourth additions of Portage Lake Park. The roads were dedicated to and for the public's use. The Crawford County Board of Road Commissioners (hereinafter, the Road Commission) formally accepted Walnut Plaisance¹ and Lincoln Park Boulevard² in 1937, by way of a resolution under the McNitt Act, former MCL 247.1 et seq. ,³ which specifically incorporated the two roads into the county road system.

The original plat was recorded as shown:

A survey performed in February 2018 depicts the improved portion of Lincoln Park Boulevard:

Portage Lake Drive, much of which has since been vacated by the Road Commission, runs parallel with and along the shoreline of what is now known as Lake Margrethe—originally named Portage Lake. Walnut Plaisance runs north and south, intersecting Portage Lake Drive at the shoreline. Lincoln Park Boulevard runs east and west, intersecting where Portage Lake Drive and Walnut Plaisance meet. The area where the three roads converge is the area in dispute in this case.

Although there are large portions of the three roads that were intended to be developed as indicated in the 1901 plat, areas of Walnut Plaisance, Portage Lake Drive, and Lincoln Park Boulevard have remained undeveloped since being platted, and therefore, large portions of the roads that were intended to be developed do not actually exist. For instance, much of Walnut Plaisance is actually forested area, including the area that was intended to reach the shoreline. In response to a 1956 petition signed by 30 owners of real estate located in two of the additions, the Road Commission passed a resolution abandoning a portion of Portage Lake Drive for residential development. Although the original plat indicated that the two roads would meet at the shoreline—Walnut Plaisance was to extend to the shoreline, and Portage Lake Drive was to extend along the shoreline—the two were never developed and do not actually meet. However, a portion of Lincoln Park Boulevard was opened in the 1960s and is the only road in dispute that was developed and reaches the shoreline of the lake. The end of Lincoln Park Boulevard—the area in which the three roads as platted intersect—is now a dirt turnaround near the lake's edge and makes up the disputed area at issue.

Owners of backlots in Portage Lake Park have historically used the disputed area for recreational purposes including swimming and picnicking, and they have also placed a dock for the mooring of their boats. Grayling sought declaratory and injunctive relief regarding the scope of the dedications of the roads, streets, alleys, and boulevards at issue. Grayling maintained that the recreational activities of the residents exceeded the scope of the dedications and, therefore, Grayling sought a declaration as to the scope of the dedications. Grayling also maintained that the activities of the residents violated MCL 324.30111b, and Grayling sought to enjoin the individual residents from violating both the scope of the dedication and MCL 324.30111b. The residents have continually maintained that Grayling does not have an actual property interest or right in the disputed area because Walnut Plaisance and Lincoln Park Boulevard are not public roads, the roads do not terminate at the water's edge, and the residents' activities do not occur at the end of a public road.

II. ACCEPTANCE OF DEDICATIONS

The residents first argue that the Road Commission did not accept the dedications of Walnut Plaisance and Lincoln Park Boulevard platted in 1901, and therefore, they are not public roads. We disagree.

This Court reviews de novo a trial court's decision on a motion for summary disposition. Latham v. Barton Malow Co. , 480 Mich. 105, 111, 746 N.W.2d 868 (2008). "Jurisdictional questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo." Travelers Ins. Co. v. Detroit Edison Co. , 465 Mich. 185, 205, 631 N.W.2d 733 (2001). Whether an offer of dedication has been accepted is a question of law. Christiansen v. Gerrish Twp. , 239 Mich. App. 380, 388, 608 N.W.2d 83 (2000). The question of timeliness amounts to a factual determination by the trial court because it depends on the circumstances of each individual case. Kraus v. Dep't of Commerce , 451 Mich. 420, 427, 547 N.W.2d 870 (1996). The trial court's factual findings are reviewed for clear error.

Vivian v. Roscommon Co. Bd. of Rd Comm'rs , 164 Mich. App. 234, 238, 416 N.W.2d 394 (1987) ( Vivian I ), aff'd 433 Mich. 511, 446 N.W.2d 161 (1989).

MCL 560.226(1) provides that before a court may consider vacation, correction, or revision of a platted roadway dedicated to a county or township, the governmental unit must relinquish its rights. The residents maintain that the Road Commission does not have rights over the roads at issue because the Road Commission did not timely accept the dedications. Thus, the residents claim that the Road Commission did not accept the offers of dedication, despite the 1937 McNitt resolution, because (1) the 1937 McNitt resolution, without further action by the Road Commission ordering that Walnut Plaisance or Lincoln Park Boulevard be opened, was insufficient to establish acceptance, and (2) the length of time between the offers and the resolution in this case caused the offer to lapse. They also argue that even if a McNitt resolution is sufficient to establish acceptance, parts of Walnut Plaisance and Lincoln Park Boulevard—specifically, the road ends—must nonetheless be vacated because the 1937 resolution referred to (1) Walnut Plaisance in the first addition as being only 1,050 feet long, when the road, in actuality, is 1,320 feet long; (2) Walnut Plaisance in the fourth addition as being 1,150 feet long, when the road, in actuality, is 1,320 feet long; and (3) Lincoln Park Boulevard in the second addition as being 1,750 feet long, when the road, in actuality, is 1,900 feet long.

A. ACCEPTANCE UNDER THE McNITT RESOLUTION

For a road to become public property there must be (a) a statutory dedication and an acceptance on behalf of the public, (b) a common-law dedication and acceptance, or (c) a finding of highway by public user.

Village of Grandville v. Jenison , 84 Mich. 54, 65-68, 47 N.W. 600 (1890), aff'd 86 Mich. 567, 49 N.W. 544 (1891). The roads at issue here were dedicated by statute. To create a public road by statutory dedication, two elements are required: (a) "a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use," and (b) "acceptance by the proper public authority." Kraus , 451 Mich. at 424, 547 N.W.2d 870.⁴ Public acceptance must be timely and must be disclosed through a manifest act by the proper public authority " ‘either formally confirming or accepting the dedication, and ordering the opening’ " of the street, or informally by " ‘exercising authority over it, in some of the ordinary ways of improvement or regulation.’ " Krau...