Vivian v. Roscommon County Bd. of Road Com'rs

• Decision Date: 28 September 1989
• Docket Number: Docket No. 82555
• Parties: Mary A. VIVIAN, Plaintiff-Appellee, v. ROSCOMMON COUNTY BOARD OF ROAD COMMISSIONERS, Roscommon County Drain Commission, and Lyon Township, Defendants, and Michigan State Treasurer and Department of Commerce, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 161

446 N.W.2d 161

433 Mich. 511

Mary A. VIVIAN, Plaintiff-Appellee, v. ROSCOMMON COUNTY BOARD OF ROAD COMMISSIONERS, Roscommon County Drain Commission, and Lyon Township, Defendants and Michigan State Treasurer and Department of Commerce Defendants-Appellants.

Docket No. 82555.

Supreme Court of Michigan.

Argued April 4, 1989.

Decided Sept. 28, 1989.

[433 Mich. 513] Robert K. Huber, Roscommon, Mich., for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Counsel of Record, Thomas J. Emery, Gary L. Hicks, Asst. Attys. Gen., Natural Resources & Military Affairs, Lansing, Mich., for defendants-appellants.

OPINION

LEVIN, Justice.

Mary A. Vivian commenced this action against the governmental defendants ¹ to vacate an alley, street, and boulevard dedicated to public use in a 1901 plat. The dedication had not been accepted by any of the defendants. The circuit judge entered a judgment vacating the alley, street, and boulevard, and the Court of Appeals affirmed. ² We granted leave to appeal ³ limited to the issue whether a 1978 amendment ⁴ of the Subdivision Control Act of 1967 ⁵ was applicable to this case. We affirm.

A

The 1978 amendment added Sec. 255b to the Subdivision Control Act. Section 255b provides that ten years after the date a plat is first recorded, land dedicated to the use of the public in a plat shall be presumed to have been accepted unless rebutted by evidence establishing either "(a) That the dedication, before the effective date of this act and before acceptance, was withdrawn by the plat proprietor" or "(b) That notice of the withdrawal of dedication is recorded" within ten years after the plat was first recorded and before acceptance of the dedicated lands. ⁶

B

The Attorney General ⁷ contends that although the dedication in the plat of the alley, street, and boulevard had not in fact been accepted by the county road commission or the township, that, by virtue of Sec. 255b, the dedication of the alley, street, and boulevard is presumed to have been accepted, absent evidence to the contrary. The Attorney General further contends that Vivian had introduced no evidence of withdrawal of the dedication.

The Attorney General continues that since the dedication was not withdrawn by Vivian before the effective dates of the subdivision control or amendatory acts, the condition of clause (a) above was not met, and, since a notice of withdrawal was not recorded within ten years of the recording of the plat, the condition of clause (b) above was not met. In conclusion, he asserts that, accordingly, acceptance of the dedication was conclusively presumed, and the circuit court ⁸ and the Court of Appeals ⁹ erred.

It appears, however, that the dedication was withdrawn by Vivian before the enactment of either the Subdivision Control Act or the 1978 amendment.

I

The parties agreed that there were no disputed facts, waived their right to trial, and submitted the cause to the court on stipulated facts. ¹⁰

Mary A. Vivian is the owner of blocks 1 and A of Michigan Central Park, a subdivision in Lyon Township, Roscommon County, Michigan. The boulevard in dispute, Michigan Central Park Boulevard, runs along the shoreline of Higgins Lake between block A and Higgins Lake. ¹¹ Block 1 is separated by the street in dispute from block A and is bisected by the alley in dispute.

The dedication of the alley, street, and boulevard in the plat of Michigan Central Park "was never accepted or approved" by the county road commission or township. The alley, street, and boulevard "have never been by any of the Defendants; Laidout, developed, funds expended, improved or maintained as public roads or public areas," or "[c]ertified as part of the Roscommon County Road System...."

There is a "white wooden and wire fence all around the perimeter" of blocks 1 and A that "completely blocks off" the alley, street, and boulevard to a bluff from and between a street to the north and a street to the south of blocks 1 and A "for over 40 years." Vivian's garage was partially located on the street, and she had "cared for and maintained" the land including the alley, street, and boulevard "for over 40 years." The alley, street, and boulevard were "thickly overgrown with large trees and underbrush." ¹²

II

It is well established that a dedication in a plat of a street, alley, or other land for a public use, whether viewed as a grant or an offer, is ineffectual unless accepted by the public. ¹³ Unless there are "facts equivalent to a continuous renewal of the offer, it cannot be considered open after the lapse of a period of time sufficient to bar all actions for the recovery of lands under the statute of limitations." ¹⁴ Where the proprietor has put the dedicated land "to a use which is inconsistent with the idea that the offer is any longer open," ¹⁵ the offer is deemed withdrawn and cannot thereafter be accepted.

A

This Court held that where the owner of premises adjoining a strip of land dedicated as a street in a plat had occupied a portion of the strip for more than twenty years, and the dedication of the portion so occupied had not been accepted, ¹⁶ "the dedication to public uses must be regarded as confined to the bounds within which the action of the public with the presumed acquiescence of the donor has practically limited it." ¹⁷

In another case, the owner had purchased platted lots and erected a fence around a portion over which a street was laid out. He planted apple and other fruit trees on this portion and used it as a garden and fruit yard in connection with his residence. He erected a barn and used all this property as though no street had ever been laid out. He had used the property for over fifteen years "in a manner entirely inconsistent with the idea that the public had any rights therein...." This Court held that, thirty years having elapsed since the offer of dedication and over fifteen years since such inconsistent use, an attempted acceptance of the dedication thereafter was not within a reasonable time. ¹⁸

Similarly, where an offer of dedication of a street was made and nothing was done by the public to indicate acceptance of the offer for twenty years, and then the owner of the adjoining property, to which the "easement" was appurtenant, took possession of the land, built a barn on the "street," and continued to occupy the property for fourteen years "in such a way as to indicate a clear intention not to recognize the right of the public in it," this Court held that the public had no rights in the property as a result of the dedication. ¹⁹

This Court has said that "so long as the original proprietor, or those claiming through him, take no steps to withdraw the offer, we think it must be considered as continuing," and held that an acceptance almost thirteen years after a dedication was timely. ²⁰

Partially on that basis, this Court held that it was not too late to accept the "continuing offer" where the adjoining property owner had occupied and used an avenue by planting shrubs, trees, flowers, and a hedge, and kept the lawns mowed for over fifty years, but "[t]here was no fencing in or building on the area or occupancy adverse to the dedicated public use." ²¹

In this Court's most recent decision addressing the question, it was held that a dedication in an 1874 plat of a 16 1/2-foot strip in an alley "was no longer open for acceptance in 1961." ²²

B

In the instant case, it is clear that the 1901 offer to dedicate the alley, street, and boulevard was withdrawn, before September, 1945, ²³ when the white wooden and wire fence all around the perimeter of blocks 1 and A was erected blocking off the alley, street, and boulevard to public access to the bluff from and between the street to the north and the street to the south. The erection of the fence and Vivian's occupancy of the alley, street, and boulevard, "thickly overgrown with large trees and underbrush," which she had "cared for and maintained" "for over 40 years," was, in the words of this Court, "entirely inconsistent with the idea that the public had any rights therein," ²⁴ and constituted a withdrawal of the offer of dedication in the plat. This was over forty years after the offer to dedicate was made in 1901--more than a reasonable period of time had elapsed without acceptance.

That withdrawal of the offer of dedication, before September, 1945, was at least twenty-two years before the enactment of the Subdivision Control Act of 1967, and at least thirty-three years before the enactment of the 1978 amendment adding Sec. 255b. ²⁵ However Sec. 255b may be construed, the dedication was withdrawn before the effective date of either the Subdivision Control Act or the 1978 amendment.

III

The Attorney General asserts that no construction of Sec. 255b will give any effect to the words "before the effective date of this act" in clause (a) "except by applying the provision to plats that existed before the effective date of the act." We agree that clause (a) applies to plats recorded before the effective date of the 1978 amendment adding Sec. 255b. To that extent we agree with the Attorney General that the Legislature "has indicated its intent that the act should operate retroactively."

Clause (b)--requiring that notice of withdrawal of a dedication be recorded with the register of deeds and a copy forwarded to the State Treasurer within ten years after the date the plat was first recorded--could not have been intended by the Legislature to apply to a plat recorded before December 22, 1968, the date which is ten years before the enactment in 1978 of Sec. 255b. The Legislature could not have expected a citizen to be so prescient as to anticipate the specifics--recording with the register of deeds and forwarding of a copy to the State Treasurer--before the 1978 legislation was enacted.

We are persuaded that clause (a) ²⁶ of Sec. 255b(2) applies at least to a withdrawal before December 22, 1978, including a...