City of Kentwood v. Sommerdyke Estate

581 N.W.2d 670, 458 Mich. 642

• Court: Michigan Supreme Court
• Decided: July 31, 1998
• Docket: 109646, Calendar No. 7
• Status: Published

Opinions

Cavanagh, J.

In this case we granted leave to appeal to determine whether a highway created by use under the highway-by-user statute¹ is limited to the area of actual public use, or to the statutory four-rod width. If the latter, we then must determine whether the four-rod-wide rebuttable presumption is constitutional under the Michigan and United States Constitutions. In accordance with United States Supreme Court case law, we hold that the state has the authority to condition the retention of certain property rights on the performance of an affirmative act within a reasonable statutory period. To that end, we hold that the highway-by-user statute is constitutional and does not create a “taking” of property without just compensation.

i

The plaintiff, city of Kentwood, and defendants, Fernando Cioni and Charles and Luciana Waddell stipulated the following facts.

The city of Kentwood is a Michigan municipal corporation located in Kent County, Michigan. On May 20, 1994, the city brought a condemnation action pursuant to MCL 213.51 et seq.-, MSA 8.265(1) et seq., the Uniform Condemnation Procedures Act. The city, by resolution dated March 21, 1994, determined that it was necessary for the health, safety, and welfare of the public to acquire certain property interests for the purpose of widening and improving 52nd Street in the city. On May 20, 1994, the city recorded a declaration of taking with the Kent County Register of Deeds.

One of the parcels affected by the condemnation action is the property purportedly owned by the defendants. The city took from the defendants’ parcel a total of 64,610 square feet of land area. The city also acquired an additional thirty-foot wide temporary grading permit.

As of May 20, 1994, 52nd Street was improved on the south side of the centerline with a ten-foot wide asphalt street, together with an additional six-foot wide shoulder and ditch area. The property owners concede that the sixteen-foot area had become a highway by user as of May 20.² The city claimed, and the property owners denied, that the entire area within thirty-three feet of the centerline of 52nd Street had become a highway by user as of May 20. The land between sixteen and thirty-three feet from the centerline of 52nd Street is the area in dispute.

The property owners mowed the grass and planted trees within the area in dispute. However, the property owners did not maintain any structure within the disputed area. On October 25, 1979, Michigan Consolidated Gas Company applied for a highway permit from the Kent County Road Commission to lay a two-inch gas line within the area in dispute. The application was approved by the road commission on November 5, 1979. On November 9, 1983, the gas company applied for an additional permit to lay a llk inch gas line along the defendants’ property. This application was also approved by the road commission. These gas lines were installed twenty-six feet from the centerline of 52nd Street. On May 20, 1982, Wolverine Paving, Inc., applied for a highway permit to install a residential driveway approach at the defendants’ property.

During all relevant times, 52nd Street was under the sole jurisdiction of the city, but the road commission acted as the city’s agent for permit applications and maintenance purposes. The property owners have not pursued any action against the road commission or Michigan Consolidated Gas Company for trespass or damages relating to the installation of the gas lines.

On August 1, 1995, the city filed a motion for summary disposition, arguing that its highway right of way was presumptively thirty-three feet wide on either side of the centerline of 52nd Street. On August 7, 1995, the property owners filed a cross-motion in limine, asserting that a highway created by the highway-by-user statute is limited to the area of actual use. The trial court so held.

As a result of the trial court’s ruling, the parties waived their rights to a jury trial and submitted the case for decision on the stipulated facts. The trial court issued its written opinion on March 20, 1997, holding that a highway created in accordance with the highway-by-user statute applies only to the extent of actual use. Rejecting the city’s argument that the underground gas line expanded the width of the highway, the trial court found in favor of the property owners and awarded $26,210 as just compensation for the land taken.

The city appealed to the Court of Appeals and in this Court. This Court granted leave to appeal, bypassing the Court of Appeals, to address this jurispradentially significant issue.

n

First, we must determine whether the state has the authority to create a statute that conditions the retention of a property right on performance of conditions that indicate a present intention to retain the property interest. If the state has the authority to do so, we next must determine whether the highway-by-user statute authorizes an unconstitutional “taking” of property without just compensation.

Appellees do not contest the establishment of a highway by use; rather, they contest the extent of the road to which the state is entitled. They claim that the state is entitled only to that portion of the highway actually used by the public. While the statute gives the state the right to assert ownership over the full four-rod width of a road, the appellees contend that to the extent it gives the state the right to property not actually used by the public, the statute creates an unconstitutional “taking” of property under the United States and Michigan Constitutions. Therefore, appellees assert, the state must pay just compensation for the portion of the road the state wishes to widen. We disagree.

Before we address appellees’ arguments about the constitutionality of the highway-by-user statute, it is appropriate to consider whether the state has the power to provide that property rights of this character shall be extinguished if their owners do not assert a right to them by performing reasonable conditions within the ten-year period required by the statute. In accordance with case law from the United States Supreme Court, we hold that a state may condition the retention of a property right on performance of an affirmative action within a reasonable statutory period.

The highway-by-user statute, MCL 221.20; MSA 9.21 provides:

All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width [sixty-six feet], and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods [thirty-three feet] in width on each side of such lines.

The first version of the highway-by-user statute was enacted in 1838, the year after Michigan became a state. 1838 RS, tit 6, ch 4, § 42. While the statutory period for retention of the property right has changed over the years, the statute has remained substantially similar to the one enacted as first written.

At oral argument, the appellees asserted that because property is a fundamental right, the state cannot put the burden on the landowner to do an affirmative act in order to retain the property right. This assertion has been rejected by the United States Supreme Court.

In Bd of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972), the United States Supreme Court stated:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Through our highway-by-user statute, Michigan has declared that appellees’ property interest is of less than absolute duration and that retention of that interest is conditioned on the performance of certain actions within the ten-year period. Like the United States Supreme Court,

[w]e have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.

From an early time, this Court has recognized that States have the power to permit unused . . . interests in property to revert to another after the passage of time. In Hawkins v Barney’s Lessee [30 US (5 Pet)] 457; 8 L Ed 190 [(1831)], the Court . . . stated: . . . “What right has any one to complain, when a reasonable time has been given to him, if he has not been vigilant in asserting his rights?” Id. at 466. [Texaco v Short, 454 US 516, 526; 102 S Ct 781; 70 L Ed 2d 738 (1982).[ ³

In the early settlement of this country, a person who received a grant of property and failed within five years to seat and improve it was held to have abandoned it. Id. at 527, n 19. Later, the United States Supreme Court upheld a Pennsylvania statute that provided for the extinguishment of a reserved interest in ground rent if the owner failed to collect rent or did not make a demand for rent within twenty-one years. Although the effect of the Pennsylvania statute was to extinguish a fee-simple estate of permanent duration, the Court held that the statute was valid. Id. at 527, citing Wilson v Iseminger, 185 US 55; 22 S Ct 573; 46 L Ed 804 (1902). As the Texaco Court noted, “[i]n these early cases, the Court often emphasized that the statutory ‘extinguishment’ properly could be viewed as the withdrawal of a remedy rather than the destruction of a right.” Id. at 528.

The highway-by-user statute does not treat the property in question as abandoned; however, it does treat the property as impliedly dedicated to the state for public use. While we note that abandonment and dedication are two separate theories under which a person can relinquish a property right, we believe that the analysis is the same under either. The important concept from the Texaco decision is that

[i]n each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to . . . lapse. [Id. at 529.]

Now that we have established that our Legislature has the power to condition retention of property rights on certain affirmative actions, we must proceed to the next step, whether the duty imposed is reasonable.

Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty-imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties. “[Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.” [United States v Locke, 471 US 84, 104; 105 S Ct 1785; 85 L Ed 2d 64 (1985), citing Usery v Turner Elkhorn Mining Co, 428 US 1, 16; 96 S Ct 2882; 49 L Ed 2d 752 (1976) (citations omitted).]

We believe that it is clear that the state has not exercised its power in an arbitrary manner. The statute provides that all roads created by use shall become a public highway of four-rods width if they have been used as a public highway for ten years or more. Our Court has interpreted this statute to establish a dedication of land for public use. A common-law dedication is an intention on the part of the owner to dedicate the land for public use, which is accepted by the public. Choals v Plummer, 353 Mich 64, 70; 90 NW2d 851 (1958).

Highways by user are based on an implied dedication by the landowner. Kruger v Le Blanc, 70 Mich 76; 37 NW 880 (1888). Under the highway-by-user statute, a particular period, in this case ten years, creates a presumption of dedication to the public. One similarity between a common-law dedication and a dedication by user is that a presumption of dedication can be rebutted by evidence showing that the property owner intended to give the public less than the full width of the road. However, under common law, this determination was often difficult to make because there was no prescribed time frame in which to measure the extent of the dedication.

Although our courts have made a distinction between common-law and dedication implied by statute, we have not clearly explained the technical distinction. A clear distinction has been articulated by English case law:

At common law there is no fixed minimum period which must be proved in order to justify an inference of dedication and no fixed maximum period which compels such an inference. It all depends on the facts of the case. Prima facie the more intensive and open the user and the more compelling the evidence of knowledge and acquiescence, the shorter the period that will be necessary to raise the inference of dedication at common law.

* * *

The common law required not only that the claimant to the right should show that the landowner had evinced an intention to dedicate, he had to show actual dedication; and it was precisely because such an event was usually fictitious or imaginary that the common law was unsatisfactory. [Nicholson v Secretary of State for the Environment, unreported QB Div’l Ct opinion, issued March 22, 1996 (CO/2205/95).]

In Michigan, the highway-by-user statute modified the common law. Statutes like this eliminated the need to prove a fictional event. Michigan’s statute refines this concept by holding that a dedication is established during the ten-year period of limitation. It is during that ten-year period that a property owner can present evidence that rebuts the existence and extent of a public highway. The statute creates consistency in the theory of implied dedication through a prescribed period as well as a specific width of four rods. This statutory presumption allows for the dedication of the entire four-rod width unless the evidence rebuts the presumption.

In the past, our case law has determined what evidence is sufficient to rebut the existence and extent of a public highway. In Ellsworth v Grand Rapids, 27 Mich 249 (1873), our Court stated:

The statute, in all such cases, is a fair notice to the owner that if he means to dispute the rightfulness of the public user, he must assert his right within the prescribed period in some way calculated to interfere with, disturb or interrupt such use by the public, or by the institution of a suit for the judicial determination of the right. [Id. at 256 (emphasis added).][⁴]

We feel the statutory period of ten years provides ample opportunity for a property owner to rebut the presumption. Furthermore, we find reasonable the requirement that a property owner must assert the right within the prescribed period in a manner calculated to interfere with, disturb, or interrupt the use by the public, or by instituting an action in court. We do not find the requirements necessary to rebut the presumption to be arbitrary. “The State surely has the power to condition the ownership of property on compliance with conditions that impose such a slight burden on the owner while providing such clear benefits to the State.” Texaco, 454 US 529-530. ⁵

Therefore, like the Court in Texaco, we conclude that the state may condition the permanent retention of a property right on performance of reasonable conditions that indicate a present intention to retain the property interest. We find that, by treating property that has not been reserved for private use for ten years or longer as dedicated to the public for use as a highway, the Michigan statute is a reasonable exercise of police power.

m

We now examine the substantive effect of the highway-by-user statute to determine whether the Legislature nonetheless is barred from enacting it because it works an impermissible intrusion on constitutionally protected rights. Appellee contends that the highway-by-user statute takes private property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

The Fifth Amendment provides in part: “[N]or shall private property be taken for public use, without just compensation.” The Fourteenth Amendment provides in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fifth Amendment prohibition applies against the states through the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc v Beckwith, 449 US 155, 160; 101 S Ct 446; 66 L Ed 2d 358 (1980). Michigan’s Constitution is substantially similar to the Taking Clause of the United States Constitution. Van Slooten v Larsen, 410 Mich 21, 41; 299 NW2d 704 (1980). It provides:

Private 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. [Const 1963, art 10, § 2.]

As early as 1856, this Court addressed the constitutional issues raised by the application of the highway-by-user statute. Specifically, we rejected the same argument appellees currently make. In Bumpus v Miller, 4 Mich 159 (1856), the plaintiff asserted that his property could not be taken for public purposes, except the necessity for using it. This Court rejected the plaintiff’s arguments stating that

the constitution, however, in no way or manner touches or affects the case now under consideration. It applies to cases where private property is taken for public use without the consent of the owner, and does not apply to cases where the owner actually gives or dedicates his property to the public for their use, or where, from his long acquiescence in the use of it by the public, a donation or dedication is presumed by law, as in the case before us. The plaintiff, or those under whom he claims, has suffered the public to use the road as a highway without objection, for more than twenty years. From this fact, the law presumes a donation of it to the public, or a dedication of it to the public use. [Id. at 163-164.]

See also Fuller v Grand Rapids, 105 Mich 529; 63 NW 530 (1895). We now reaffirm our prior holding. The statute itself creates the basis for the implication that, under the circumstances defined in the statute, the owner implied a dedication of property four rods in width for use as a public road.

The dissent claims that this interpretation of Bumpus was “expressly found unconstitutional” by subsequent decisions of this Court including Eager v State Hwy Comm’r, 376 Mich 148; 136 NW2d 16 (1965), and Smith v State Hwy Comm’r, 227 Mich 280, 283-286; 198 NW 936 (1924). Post at 677. However, a close reading of these cases shows that Bumpus has not been held unconstitutional. In Eager, the land in dispute was land that had been continuously used and maintained by the property owner for more than fifty years, first as a private parking lot for a hotel, and later as a location for gasoline pumps for a gas station. The defendants and their predecessors in title testified that the disputed strip of land had been used as a private parking place and a means of ingress and egress from their places of business, and it was used exclusively by the defendants and their predecessors in title. Id. at 152. Eager properly held that the statutory presumption did not apply to the facts of that case. Moreover, the Court recognized and upheld the statutory presumption stating that if a property owner “means to dispute the rightfulness of the public user, he must assert his right within the statutory period by physical action or suit.” Id. at 154, citing Ellsworth v Grand Rapids, supra.

We recognize that after establishing that the presumption of dedication had been rebutted, the Court in Eager made the assertion that “privately owned land cannot become public road by user beyond the portion used as such merely by the . . . statutory pronouncement to that effect.” Id. We believe that this sentence, when read in the context of the whole opinion, supports our proposition that where there is evidence that the presumption has been rebutted within the statutory period, privately owned land cannot become a public road merely because the statute presumes the road to be four-rods wide. To the extent that the dissent claims this statement supports the proposition that a public road is always only as wide as actual use, we disagree. If we read Eager to support the proposition of the dissent, the Court’s alleged pronouncement that a public road is always only as wide as actual use would be dicta because, as noted previously, the presumption was effectively rebutted in that case. To be sure, we now clarify our holding in Eager, and limit it to cases where the presumption has been rebutted.⁶ The public road is only as wide as actual use where the plaintiff presents evidence that the presumption of dedication has been rebutted within the statutory period of repose. If the presumption is not rebutted within the statutory period, the road is deemed dedicated to the full extent of the four-rod width.

Indeed, none of the cases cited in Eager or the dissent negate the statutory presumption of sixty-six feet. For example, Smith, supra, cited in Eager, recognized the statutory presumption of sixty-six feet when it stated:

But if we . . . accept all that is claimed for Bumpus v Miller, supra, and Kruger v LeBlanc, supra, and hold that an offer to dedicate presumes a four-rod strip, still the presumption is a rebuttable one, and all the facts and circumstances in the instant case rebut it. [Smith, 227 Mich 287.]

Thus, contrary to the claims of the dissent, Bumpus has never been “expressly found unconstitutional” by this Court. Indeed, we agree with our prior decisions in Eager and Smith, that where there is evidence that the presumption was rebutted within the statutory period, or where there is no road created by use over a person’s property affording him the opportunity to rebut the presumption, it would be unconstitutional to “take” his property without due compensation.

The dissent also claims that we “render[] meaningless” MCL 221.22; MSA 9.23 (establishing that public highways may be discontinued), as well as Lyle v Lesia, 64 Mich 16; 31 NW 23 (1887), and Gregory v Knight, 50 Mich 61, 64; 14 NW 700 (1883). Post at 686. However, the dissent is incorrect. It claims that “a portion” of the highway dedicated to the public should be deemed discontinued under MCL 221.22; MSA 9.23, which reads in full:

Every public highway already laid out, or hereafter to be laid out, no part of which shall have been opened and worked within 4 years after the time of its being so laid out, shall cease to be a road for any purpose whatever. [Emphasis added.]

Therefore, the statute expressly negates the dissent’s proposition that nonuse of a portion of the dedicated land means that the unused portion is “discontinued” and somehow escheats back to the original property owner. In fact, by implication, it supports the conclusion that unless the highway is abandoned in its entirety, the dedicated land remains owned by the public to the full extent of the four-rod width.

Furthermore, the dissent is incorrect in asserting that Lyle and Gregory require a different result. In Lyle, an old road was abandoned in favor of the creation of a new road. There was no travel over the old road for over twelve years, and six years after the new road was created, the property owner erected a fence where the old road had been. The Court held that the state could not reopen the old road that had been abandoned by the public for over twelve years in favor of the new road.

In Gregory, the Court held that the road was “partially discontinued” because the adjacent property owner had placed a “rail fence, stone row, rail pipes, hay bam and sheds” on the portion of the highway the highway commissioner sought to clear. Gregory, 50 Mich 62. The Court held that because a highway may be wholly discontinued by user, it may also be partially discontinued. However, the significant factor in determining whether a portion of the highway had been partially discontinued was that the property owner had effectively rebutted the presumption of dedication by erecting the fence, bam, and sheds on the property in question. Id. at 64.

Appellees acknowledge Bumpus and the above-cited case law; however, they assert that our decisions have incorrectly held that the statute does not affect the Taking Clause of the constitution. In support of their position, the appellees cite Nollan v California Coastal Comm, 483 US 825; 107 S Ct 3141; 97 L Ed 2d 677 (1987), for the proposition that the statute authorizes an unconstitutional taking of property without just compensation. We disagree with appellees’ contention that Nollan requires a contrary result. Nollan states in relevant part:

Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach ... we have no doubt there would have been a taking.

* * *

We have repeatedly held that, as to property reserved by its owner for private use, “the right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ” [Id. at 831 (citations omitted, emphasis added).]

The one notable difference between Nollan and this case is that Michigan has not required the original property owners to give the property to the state. Instead, the Michigan statute allows the landowner to assert the right to the property within ten years after the creation of the road as a public road by use. If ten years pass without a continuous assertion of right by the property owners, the law presumes that the owner intended to dedicate the entire four-rod width of the road. It is only after the property owners have failed to act to preserve their right to the property that the property is deemed dedicated to the state. Indeed, Nollan supports this. Where the “property [is] reserved by its owner for private use” the state may not take the property without just compensation. However, in this case, the property owner did not reserve the property for private use because the property owner, after reasonable notice, did not properly assert his right to the property within the ten-year period.⁷ Therefore, the Taking Clauses of the United States and Michigan Constitutions are not implicated. This is so because, after dedication, “the former owner retains no interest for which he may claim compensation. It is the owner’s failure to make any use of the property — and not the action of the State— that causes the lapse of the property right; there is no ‘taking’ that requires compensation.” Texaco, 454 US 530.⁸

Indeed, this premise shows the fundamental flaw in the dissent’s analysis. The dissent claims that the original and subsequent property owners retain a fee simple interest in the land because a portion of the dedicated land was unused. However, as noted previously, once a dedication has occurred and there is no evidence that the presumption of dedication has been rebutted, the origina' property owners no longer own the land dedicated to the public. Therefore, it is incorrect to claim that they retain a fee simple interest in the land. Where the property owner retains no interest in the land, it would be impossible for there to be a “taking.” See, e.g., Cincinnati v White, 31 US (6 Pet) 431, 440; 8 L Ed 452 (1832) (the original and subsequent property owners, after dedication, have no interest in the dedicated land but the “mere naked fee”).

IV

The appellees also contend that the statutory presumption does not provide due process of law. However, this argument was also rejected by the Texaco Court. There, the Court stated that, generally, a legislature need only enact and publish a law and afford citizens a reasonable opportunity to familiarize themselves with the terms of a statute to advise its citizens of the lapse of a property right. Id. at 530. “[N]o specific notice need be given to an impending lapse.” Id. at 533. In the instant case, the state of Michigan has enacted a rule of law uniformly affecting all citizens that establishes that a property interest will lapse through the inaction of its owner. In this case, the law was enacted in 1838. Therefore, the current property owners, if they are to complain at all, must complain to the original property owners who dedicated their land for public use.

To the extent that the current property owners claim a right to the disputed property, we note that the property in question was never owned by them. They present no evidence that the original property owners rebutted the presumption of dedication within the statutory ten-year period. Their only evidence rebutting the presumption dates from 1955 to the present. However, the original farmhouse was built at 3461 52nd Street in 1885.⁹ Therefore, the property became property of the state when the road was created by use, and it was deemed dedicated to the state to the full extent of the four-rod width because there was no contrary action taken within the statutory period.¹⁰

Finally, it is ironic that the dissent so vigorously challenges our interpretation of the highway-by-user statute where it has previously supported the position of the majority by signing a unanimous Court of Appeals opinion. In Kent Co Rd Comm v Hunting, 170 Mich App 222; 428 NW2d 353 (1988), a unanimous Court of Appeals panel, including Justice Weaver, stated:

The elements of a highway by user have been expanded to require evidence of a defined line of travel with definite boundaries, used and worked upon by public authorities, traveled upon by the public for ten consecutive years without interruption, in an open, notorious and exclusive manner. ... If the elements are established, the statute operates to raise the rebuttable presumption that the road is four rods, or sixty-six feet wide. Eyde Bros Development Co v Eaton Co Drain Comm’r, 427 Mich 271, 298-299; 398 NW2d 297 (1986), reh den 428 Mich 1206 (1987).

However, this presumption may be rebutted if the landowner offers any evidence, such as the existence of a structure within the four-rod statutory width, or any other evidence, that the owner retained control of an area within the statutory width. . . . Once the presumption is rebutted, the highway cannot be wider than the zone of actual use which meets the highway by user test outlined above. Eager, supra, pp 154-155.

* * *

In our case, the property owners along [the highway created by use] must establish that they, or their predecessors in interest, took sufficient action during the running of the statutory ten-year period to give notice of their intention to maintain possession and control over the disputed area. [Id. at 231-232.]

We find that the challenges made by the dissent in this case were effectively rebutted by the Court of Appeals decision. Furthermore, this interpretation squares directly with our majority opinion.

For these reasons, we reverse the decision of the circuit court.

Mat,t.ett, C.J., and Boyle and Kelly, JJ., concurred with Cavanagh, J.

1 MCL 221.20; MSA 9.21.

2 In the affidavit of Carey Sommerdyke, defendants admit that the original farmhouse was built in 1885 at 3461 52nd Street. Thus, 52nd Street, having existed at least since 1885, has been a highway by user for over one hundred years.

3 We note that Texaco dealt with the lapse of mineral rights as opposed to the lapse of surface property rights. However, our analysis is the same under either a “surface rights” case or a “subsurface rights” case because mineral rights “are entitled to the same protection as are fee simple titles.” Id. at 519, n 5 (citations omitted).

4 Because this case does not deal with the issue whether the property owners actually rebutted the statutory presumption of dedication within ten years after the highway by use was created, we will not address the long line of cases that address the conditions that must be established in order to rebut the presumption.

5 As noted in Texaco, “ ‘[Wjhere the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.’ ” Id. at 530, n 23, quoting Miller v Schoene, 276 US 272, 279-280; 48 S Ct 246; 72 L Ed 568 (1928).

6 In a 1986 decision, this Court in Eyde Bros Development Co v Eaton Co Drain Comm’r, 427 Mich 271; 398 NW2d 297 (1986), reaffirmed our holding in Bumpus. We also stated that “the width of the easement is not confined to the paved surface . . . but includes the entire four rods or sixty-six feet.” We continued:

To rebut the presumption of four rods width, a fee owner must prove that the width of the easement was “expressly or impliedly restricted.” Bumpus, supra at 164. Cases in which the statutory presumption has been rebutted effectively include those in which the abutting property owner has continuously maintained some structure or activity tending to give notice of possession or control of the disputed property. See Eager v State Hwy Comm’r, 376 Mich 148; 136 NW2d 16 (1965) (private parking place); Coleman v Flint & Pere Marquette R Co, 64 Mich 160; 31 NW 47 (1887) (fence and cultivated land); Scheimer v Price, 65 Mich 638; 32 NW 873 (1887) (fence). . . . [Id. at 298-299.]

Therefore, we believe our interpretation of Eager is consistent with Eyde Bros, and the result in this case should not be prospective only.

7 One of the concerns raised at oral argument is that there is no ascertainable date regarding when the period runs. To the extent that the determination is placed on the current property owners, we agree. Now, over one hundred years after the highway was originally created, we agree that it would be difficult to determine the date the highway was created. See affidavit of Carey Sommerdyke establishing that the original farmhouse on the property in question was built in 1885 at 3461 52nd Street. However, it is not the current property owners who must ascertain the date the highway was created, because defendants concede the road in question was created more than ten years before appellees acquired the property. It is the person who owned the property when the highway was originally created by use who must assert his right to the property within the statutory period. We believe that a property owner will know when a road is created across his property to a relative degree of certainty. If he does nothing within the statutory period, the statute presumes that he has dedicated the entire four-rod width to the public. We find that the original property owner would be able, with reasonable certainty, to ascertain the date the road was created by use and, thus, would know when the ten-year period began to run.

8 We reject appellees’ argument that Texaco is distinguishable because the property lapsed to the successor owner, whereas in this case the property lapses to the state. This is a distinction without a difference. The crucial inquiry is whether the state has the authority at ail to condition the retention of a property right on certain affirmative acts. Once it is established that the state has this authority, it does not matter to whom the property lapses.

9 The dissent argues that the burden of rebuttal is unreasonable because of ambiguities in the statute, the period for rebuttal, and the passage of over 150 years since the road was created. However, the cases on which the dissent relies to assert the unconstitutionality of the statute all dealt with defendants who were able to present evidence that would rebut the presumption or make a reasonable argument to rebut the presumption, thus proving that the burden is not so unreasonable that it was unworkable in the past. Indeed, it would be difficult to argue that affording a property owner ten years to assert his right is somehow “unreasonable.” Regardless, there is simply no evidence in this case of rebuttal that dates further back than 1955.

10 The dissent also claims that the statute impermissibly places the burden of proving that predecessors in title acted within the statutory period in order to rebut the dedication. However, this argument, too, must fail. At common law, the legal burden of proving dedication by user rests on the user. However, where dedication is presumed, as is the case where a dedication is implied by statute, the burden shifts to the property owner to rebut the presumption of dedication during the statutory period. Nicholson, supra. If the property owner fails to rebut the presumption, the road is deemed dedicated to the full extent of the four-rod width. Because the burden is placed on the original property owner to rebut the presumption, the burden would remain with subsequent property owners to provide evidence that the presumption was rebutted. It would be illogical to shift the burden back to the government once the public is deemed to be the legal owner of the property.