Boone v. Antrim County Board of Road Commissioners

442 N.W.2d 725, 177 Mich. App. 688
CourtMichigan Court of Appeals
DecidedJune 19, 1989
DocketDocket No. 106387
StatusPublished
Cited by10 cases

This text of 442 N.W.2d 725 (Boone v. Antrim County Board of Road Commissioners) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boone v. Antrim County Board of Road Commissioners, 442 N.W.2d 725, 177 Mich. App. 688 (Mich. Ct. App. 1989).

Opinion

Weaver, P.J.

Plaintiffs appeal as of right from a circuit court order dismissing their complaint for no cause of action. We affirm.

i

Plaintiffs sought to subdivide their real property known as the Plat of Four-Way Lodge, which property extends to the middle of East Torch Lake Drive in Antrim County. On appeal, it is the defendant road commissioners’ plat requirement of a fifty-foot half-width road right-of-way which plaintiffs dispute. At trial, plaintiffs and defendant stipulated to the following facts upon which the trial court relied in rendering its decision.

East Torch Lake Drive is a "county primary road . . . directly adjacent to the Plat of Four-Way Lodge” and is "the only public road” providing access to the plat. Before approval of the plat, East Torch Lake Drive had a statutorily presumptive half-width right-of-way of thirty-three feet, there being "no previous deed, dedication or court proceeding which formally established the right-of-way.”

In order to get subdivision plat approval, the [691]*691plat proprietors (plaintiffs) dedicated a fifty-foot half-width right-of-way to the public because this was a stated road commission requirement. Such requirement arose under rules lawfully promulgated by the road commission and applied uniformly pursuant to § 183 of the Subdivision Control Act, 1967 PA 288, MCL 560.101 et seq.; MSA 26.430(101) et seq., to all plats involving primary county roads. Plaintiffs would not have dedicated the fifty-foot half-width right-of-way to the public had it not been asserted as a requirement to obtain plat approval.

After hearing the parties’ arguments based on their stipulated facts, the trial court rendered its findings and a decision of no cause of action. Plaintiffs appealed.

ii

Under the parties’ stipulated facts, East Torch Lake Drive had not previously undergone a formal dedication to public use. However, such stipulation would not foreclose a determination that the road may have been previously dedicated to public use at common law under the doctrine of "highway by user.”

If the road had been previously dedicated by user at common law, then we would agree with plaintiffs’ argument that they were not required to include their portion of East Torch Lake Drive in the subdivision plat proposal and dedicate a fifty-foot half-width right-of-way along the road. However, this is an issue which should have been resolved before plaintiffs agreed to include the road on their plat. Plaintiffs’ acceptance of the road commission requirement to include the road on their plat bound them to the rules lawfully promulgated pursuant to the Subdivision Control Act.

[692]*692Necessity for compliance with the road commission rules (inclusion of the road and dedication of the fifty-foot right-of-way) promulgated pursuant to MCL 560.105(c),1 560.181,2 and 560.183;3 MSA 26.430(105)(c), 26.430(181), and 26.430(183), is only triggered where abutting roads falling within the proprietor’s land have "not previously been dedicated to public use.” (Emphasis added.) MCL 560.1344 and 560.136;5 MSA 26.430(134) and [693]*69326.430(136). Therefore the need to follow commission rules mandating inclusion of the road and the fifty-foot right-of-way would have been obviated by proof, before plaintiffs agreed to include the road on their plat, that a previous dedication to public use had occurred.

"Dedication” is an appropriation of land to some public use made by the owner of the fee and accepted for such use by or on behalf of the public. DeWitt v Roscommon Co Rd Comm, 45 Mich App 579, 581; 207 NW2d 209 (1973). Dedication may occur by statute or at common law, with common-law dedication creating not fee title but only an easement in the public. Gunn v Delhi Twp, 8 Mich App 278, 282; 154 NW2d 598 (1967). There need be no formal dedication of public streets, and dedication may occur without a grant or even written words. DeWitt, supra; Sharkey v Petoskey, 30 Mich App 640, 644; 186 NW2d 744 (1971). See also Petoskey Chamber of Commerce v Petoskey, 372 Mich 483; 127 NW2d 363 (1964). However, there must be a clear and positive intent to dedicate, as unequivocally demonstrated by the actions of the owners. Laug v Ottawa Co Rd Comm, 37 Mich App 757, 761; 195 NW2d 336 (1972), lv den 387 Mich 767 (1972). Chene v Detroit, 262 Mich 253, 258; 247 NW 172 (1933). If intent is established, there must also be either an express declaration or some acts by a public authority indicating acceptance. DeWitt, supra at 582; Chene, supra; Sharkey, supra at 644.

Common-law dedication may occur under the "highway-by-user” statute, MCL 221.20; MSA 9.21. Mere use of a road, however, is insufficient to make it a public highway. Indian Club v Lake Co Rd Comm’rs, 370 Mich 87, 89; 120 NW2d 823 (1963). Such use by the public must be open, notorious, and exclusive for a period of eight or [694]*694ten consecutive years, depending upon when the highway came into existence. Id.; DeWitt, supra at 582; Dryfoos v Maple Grove Twp, 363 Mich 252, 255; 109 NW2d 811 (1961). This use must also include an acceptance by public authorities with the way taken and maintained as other highways. Indian Club, supra at 90. The acceptance need only be such as to keep the road in a reasonably passable condition. Id. at 91.

The highway-by-user statute applies a presumptive half-width right-of-way of thirty-three feet. However, this presumption may be rebutted upon proof that the width of the easement was expressly or impliedly restricted. Eyde Bros Development Co v Eaton Co Drain Comm’r, 427 Mich 271, 297-298; 398 NW2d 297 (1986), reh den 428 Mich 1206 (1987); St Ignace v McFarlane, 45 Mich App 81, 84; 206 NW2d 226 (1973); Laug, supra at 766. Under the highway-by-user doctrine, therefore, such easement could be proven less than the presumed thirty-three feet, depending on the facts of each case.

In interpreting the provisions of the Subdivision Control Act at issue, our aim is to give effect to legislative intent. Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983). In assessing legislative intent, the statute is to be construed as a whole, in light of history and common sense, and its provisions so construed as to harmonize rather than conflict with each other. Arrowhead Development Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). Every word, sentence, and section of a statute should be given effect, if possible, in an effort to arrive at a harmonious and consistent interpretation of the act as a whole. Workman v DAIIE, 404 Mich 477, 507; [695]*695274 NW2d 373 (1979); Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 738; 330 NW2d 346 (1982).

Here, the commission was authorized to require compliance with its duly promulgated rules in order to carry out the provisions of the Subdivision Control Act. MCL 560.105(c); MSA 26.430(105)(c). However, the Subdivision Control Act specifically exempts from plat inclusion any previously dedicated highways, including highways dedicated by user at common law. MCL 560.134 and 560.136; MSA 26.430(134) and 26.430(136).

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Bluebook (online)
442 N.W.2d 725, 177 Mich. App. 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boone-v-antrim-county-board-of-road-commissioners-michctapp-1989.