Home/Michigan Supreme Court/Auditor General v. Klenk

Auditor General v. Klenk

161 N.W.2d 7, 381 Mich. 255, 1968 Mich. LEXIS 110
CourtMichigan Supreme Court
DecidedSeptember 25, 1968
DocketCalendar No. 12, Docket No. 50,718
StatusPublished
Cited by1 cases

This text of 161 N.W.2d 7 (Auditor General v. Klenk) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auditor General v. Klenk, 161 N.W.2d 7, 381 Mich. 255, 1968 Mich. LEXIS 110 (Mich. 1968).

Opinions

Per Curiam.

This case was before the Court in 1962. The result was reversal and remand for full hearing. See Auditor General v. Klenk (1962), 367 Mich 65. Thereafter Circuit Judge Allan C. Miller, of the 23d circuit, undertook hearing and determination of the merits. His first judgment, ruling that the herein considered Munzel survey properly delineated the questioned portion of the boundary between Macomb and Wayne counties, was appealed to this Court by the attorney general and counsel for intervening local units of government. In the course of submission of that appeal it was learned that all parties requisite to complete determination of the central and originally posed question had not been brought before the Court. Accordingly, a second order of remand issued July 14, 1965. The order proceeds:

“Ordered that the original record be and the same is remanded to the circuit court for the county of Macomb with instruction that the court order joinder of all necessary parties, as same may be determined by that court, including the county of Wayne, and that the court require of parties thus newly joined that each plead to the issue which was remanded for hearing in Auditor General v. Klenk, 367 Mich 65.
[259]*259“The circuit court thereupon will proceed to hear such additional proof as may he desired by all parties and will prepare a supplemental opinion and new judgment upon the record as supplemented; whereupon the original and supplemental record may be certified to this Court for consideration and such further proceedings in this Court as may then be ordered.”

This order has been fully executed by Judge Miller. The county of "Wayne appeared and participated actively in the supplemental hearing. A supplemental record, consisting of more testimony, additional exhibits, a supplemental opinion and a supplemental judgment, was made and certified as in the July 14 order provided. The supplemental judgment reversed the result of Judge Miller’s first judgment. The essence thereof rests upon these supplemental findings:

“1. That all public authorities adopted the so-called Dingman-Lehner line from 1944 to the present and that the joint survey of 1966 ("Wayne county exhibit la, lb, lc) documents this line by field notes and drawings duly recorded and relates the same to physical monuments presently existing on the ground.
“2. That said line depicts the present line of occupation between said counties of Wayne and Ma-comb.
“3. That deplorable consequences would result in disrupting this line as the county and municipal line in use extensively from 1956 to date, during which time the area has been developed into subdivisions and homes erected thereon, including the utilities and improvements necessary thereto.
“a. Only 10% of the lots in the area are vacant today.
“b. Nearly all of the public utilities and houses were constructed after the tenure of Fred B. Cheek, [260]*260city engineer for St. Clair Shores. He was in office from 1956 to 1962.
“4. That the document known as joint survey— 1966, recorded in liber 15965, page 486 et seq., Wayne county records, be and is hereby found to be the established and located county line on the ground for all purposes hereafter.”

Since remand by the order of 1965, the central issue has changed. Now that issue is whether a private survey made for the defendant objectors in 1960 by Herbert Munzel, a civil engineer, said by these objectors as having located the northerly boundary of Wayne county according to a survey made in 1816 by government surveyor Joseph Fletcher, should be held prevalent over the “Ding-man-Lehner” county line survey of 1918 and the coincident or near coincident “joint survey of 1966.” To put the issue conversely, it is whether for the same locating purpose the “joint” county line survey of 1966 should prevail over the Munzel survey. Our answer, given de novo upon the whole record, is that Judge Miller was right in giving dominant effect to the manifestly more exacting survey of 1966.1

To portray in our official report the divergence of the two last mentioned lines of survey, request was made of counsel that a stipulated sketch be made and sent to the clerk; such sketch to depict the locus and measurement, at and near the lake shore, of the width of such divergence. Counsel were unable to stipulate with result that a choice has been compelled between 2 separately contributed sketches. One, appearing at the margin, has been accepted [262]*262as somewhat less argumentative. To it we add explanatory factual comment as follows:

[261]

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Bluebook (online)
161 N.W.2d 7, 381 Mich. 255, 1968 Mich. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auditor-general-v-klenk-mich-1968.