O'CONNELL, J.
This case involves a dispute regarding the use of and property rights attached to a 20-foot by 120-foot strip of property at the end of Hitchcock Avenue along Higgins Lake in Gerrish Township, Roscommon County. After a bench trial, the trial court determined that the disputed strip of property was part of Hitchcock Avenue and, therefore, subject to the same restrictions regarding its use as those set forth in Jacobs v. Lyon Twp. (After Remand), 199 Mich.App. 667, 502 N.W.2d 382 (1993). We reverse and remand for further proceedings.
The property in dispute is a 20-by-120-foot strip of land along the shore of Higgins Lake. Both plaintiff and the Roscommon County Road Commission claim that Hitchcock Avenue is 50 feet wide at this point, while defendants claim that the property in dispute is not part of Hitchcock Avenue, so Hitchcock Avenue is only 30 feet wide at this point. The northern 20 feet of Hitchcock Avenue are located in Section 9 of Township 24 North, Range 3 West, in Gerrish Township, while the southern 30 feet are located in Section 16, Township 24 North, Range 3 West in Gerrish Township. Accordingly, the road straddles the section line as it runs in an east-to-west direction.
Hitchcock Avenue dead-ends near the shore of Higgins Lake. In particular, the 50-foot-wide paved public roadway ends approximately 120 feet east of the shore of Higgins Lake. The 120-foot by 50-foot parcel of property west of the Hitchcock Avenue terminus, known as DeWitt's Landing, has long been used by property owners in the area (specifically, "back-lotters") and by the public as an access site for Higgins Lake. Because the road commission did not appear to maintain this parcel of land, area residents created the DeWitt Landing Association and the DeWitt Dock Association to maintain the property and a public seasonal dock on the site.
The photographs also show that a vehicle guardrail is located at the eastern edge of DeWitt's Landing, stretching along the northern half of the eastern boundary of the property. The guardrail is approximately 20 feet long, and it separates the roadway from the grassy area to the west. A "Road Ends" sign and a red diamondshaped sign are posted immediately behind the guardrail. Another photograph depicts a sign posted by the DLDA on the property, which reads in part, "No tax dollars are spent on upkeep of this road end. Our volunteer organization keeps the dock, beach, ramp and grassy hill in a safe and sanitary condition for the public to enjoy." (Emphasis in original.)
The southern 30 feet of DeWitt's Landing (the 30-foot strip) is located in Section 16 of Gerrish Township and is part of the platted community of Pine Bluffs. The Pine Bluffs plat indicates that the northernmost 30 feet of the platted property, stretching approximately 400 feet from Higgins Lake to Pine Bluffs Road, was originally identified as "North Street." The westernmost 120 feet of "North Street" corresponds to the 30-foot strip. This plat dedicated the streets shown on the plat "to the use of the public."
Although the 30-foot strip was never used as a road per se, it has been used for some time to provide access for vehicles moving boats in and out of the water. Over half a century ago, DLDA members installed a cement boat ramp on the 30-foot strip, and over the years they have continued to maintain the boat ramp on behalf of the public.
In separate litigation in the late 1990s, the Roscommon Circuit Court determined that the 30-foot strip was a platted road dedicated to the public and, accordingly, it limited certain shore activities on the 30-foot strip, precluded the erection of private
Specifically, this case concerns the use and ownership of the northern 20-by-120 feet of DeWitt's Landing (the 20-foot strip). All parties acknowledge that this property is not located within the plat of Pine Bluffs, but is adjacent to the northern boundary of the plat. Unlike the 30-foot strip, which appears to consist primarily of the boat ramp, the 20-foot strip functions more as a small park. The underlying dispute in this case concerns whether this 20-foot strip is a public road and, therefore, whether the use restrictions that apply to the 30-foot strip also apply to the 20-foot strip.
At the turn of the 20th century, the land north of the Pine Bluffs plat, including the 20-foot strip, was also platted. This plat, known as the Kenwood plat, was dedicated and registered in 1901.
Between 1903 and 1909, Myrtle E. Hellen purchased either all or a substantial portion of the property in the Kenwood plat. After acquiring this property, Hellen
In its initial motion for summary disposition, plaintiff submitted an affidavit from the owner of a local title search company, who claimed that according to a title search that she conducted, Hellen never conveyed the 20-foot strip of land at the southern edge of her property (which included the 20-foot strip at issue in this case) when she sold her land years after the plat was vacated. However, both parties later agreed that the information provided in this affidavit was incorrect, because Hellen did include the 20 feet at the southern edge of her property in her subsequent sale of this land.
Further, the parties submitted deeds detailing the subsequent property transfers that included the 20-foot strip. On February 17, 1922, Hellen sold to William J. Tenney a 400-square-foot parcel of property that included the 20-foot strip. On April 28, 1924, Tenney sold a portion of the property, including the 20-foot strip, to Charles H. DeWaele. On May 19, 1924, DeWaele sold a portion of the property, including the 20-foot strip, to Charles T. Hayden. On July 4, 1924, Hayden sold his property to Osian and Hulda Anderson, with the guarantee that the property was free from encumbrances. The property deeded to the Andersons included the 20-foot strip.
In February 1931, the Andersons sold some of their property to Francis and Faith Ross. The parcel that the Andersons sold to the Rosses excluded the 20-foot strip in question.
The Rosses owned the property they purchased from the Andersons for the rest of their lives.
Although the Kenwood plat dedicated all the streets and alleys depicted therein to the use of the public, the parties provided no evidence that the county accepted this dedication before the Kenwood plat was vacated. In fact, the parties provide no evidence that the county road commission took formal steps to accept dedications of any streets and alleys in the county before the 1930s. Plaintiff submitted copies of county maps from 1931 through the present that depicted Hitchcock Avenue as going to the edge of Higgins Lake, although a road commission employee admitted that the maps did not indicate the widths of the roads depicted. Plaintiff also submitted the minutes of an April 2, 1937, meeting of the Roscommon County Road Commission indicating that the county road commission had resolved to take over maintenance of all dedicated streets and alleys in all recorded plats in the county and a later resolution (apparently from 1953) designating these streets and alleys as county roads. Although the minutes of the 1937 meeting do not provide a list of the recorded plats in question, a handwritten note from this time written by a county official includes Kenwood among the list of recorded plats, even though the plat had been vacated for over 25 years at this point. A 1953 road commission resolution reaffirming under 1951 PA 51 the commission's prior takeover of roads pursuant to the McNitt act, 1931 PA 130, repealed by 1951 PA 51, § 21, did not include the plat of Kenwood among the recorded plats whose streets and alleys were taken over as county roads. The plat of Pine Bluffs was included.
At its April 16, 1940, meeting, the road commission resolved to incorporate particular metes-and-bound roads into the county road system. The roads listed for incorporation into the county road system included the road located on the north side of Section 16, but did not include a road located on the south side of Section 9.
In its answer to a discovery request, the road commission admitted that although it had historically considered the 20-foot strip to be part of Hitchcock Avenue, it
When asked if the road commission had ever performed maintenance on either the 20-foot or the 30-foot strips, Burns replied:
Burns also acknowledged that a 1957 road commission map labeled the land at the end of Hitchcock Avenue "DeWitt Landing." Finally, she acknowledged that the 20-foot strip never contained a paved or dirt area that would permit vehicular access to the lake.
Myrtle Rydell Moore, an elderly area resident, discussed her family's use of DeWitt's Landing in the 1920s. Moore, who was born and raised near DeWitt's Landing, would accompany her family to DeWitt's Landing as a young child, where they would swim, recreate, and have parties and picnics. Moore explained that her family would usually recreate at an area along the lakeshore just to the south of DeWitt's Landing, along the beach in front of the cottages that were later built at the northern edge of the Pine Bluffs plat. Moore indicated that there was a "path" to the water that her family used to get to DeWitt's Landing, although she did not indicate where this path was located or whether any part of it traversed the 20-foot strip. She believed that others must have used the path to the water as well, because the path was "well-worn." Her impression was that the property at DeWitt's Landing was "[a]vailable for use by anyone."
Moore claimed that the area became known as "DeWitt's Landing" after the DeWitts built their house on the property immediately to the south of the 30-foot strip, but she could not remember when this occurred. She estimated that people began referring to the site as "DeWitt's Landing" in the late 1930s or early 1940s. According to Moore, the DeWitts often would maintain the trail to the lake, keeping it free from snow in the winter and maintaining the path throughout the year so that "back-lot" neighbors could reach
Moore testified that she would see cars drive down to the lake to unload boats into the water. She also saw others use the path in question to take trucks onto the lake to cut ice during the winter. Moore and her family would not picnic in the area where boats were launched into the water, but "to the side." Moore did not believe that the road commission ever maintained or plowed the lake access point, stating instead that she believed that the road commission "only went as far as where the people drove in to their house or garage." Moore was never asked, and never indicated, whether the path and the vehicular access to the lake were on the 20-foot strip or on the 30-foot strip.
Although Moore testified regarding the historical use of DeWitt's Landing as a recreational area and lake access point, it appears that by the 1940s and 1950s, DeWitt's Landing was overgrown and an "eyesore."
According to its members, apparently the DeWitt Landing Association, the precursor to the DLDA, was formed at some point in the late 1950s or early 1960s, when Roy DeWitt, who owned the property immediately to the south of DeWitt's Landing, obtained permission from the county road commission to improve the road end. DeWitt contacted a number of backlot owners to form the DeWitt Landing Association (later the DLDA) and to help care for DeWitt's Landing. The association members paid for and constructed the cement terrace/retaining wall and flat patio for picnic tables, planted and maintained the grassy area for sunbathing, and filled in the area along the lake with sand for use as a beach. The association members also paid for and installed the cement drive leading to the lake.
Apparently a barrier was first installed on Hitchcock Avenue at the eastern edge of the 20-foot strip in 1960. Earlier photographs of the site show a series of posts indicating a road end and blocking further vehicular traffic, while later pictures depict a guardrail. The blacktop ended at the guardrail. Although it is undisputed that the area of Hitchcock Avenue east of the guardrail is a 50-foot wide blacktop road used by the public and maintained by the county road commission, the parties have not identified any evidence that the road commission ever took any steps to maintain the 20-foot strip. Instead, many DLDA members confirmed that the 20-foot strip was never used or maintained as a road, but instead had been used for over 50 years by DLDA members and the public for lounging, sunbathing, and recreating. The DLDA maintained picnic tables and a bulletin board on the site, and members helped mow, clean, and maintain the 20-foot strip. DLDA members affirmatively testified that for over 50 years, they had never seen the county road commission, or any other governmental entity, maintain or otherwise perform any work on the 20-foot strip.
Every year, DLDA members would install a seasonal dock on the 20-foot wide strip that extended into Higgins Lake. Several DLDA members used the seasonal dock at the end of the 20-foot strip to dock and moor boats overnight; for some, this use stretched as far back as the 1940s.
DLDA member Peggy McKibbin affirmed that her family had used the beach, dock, and bottomlands of DeWitt's Landing since 1941 and provided photographs as evidence. The photographs, dating from 1941 through 1991, show a dock and beach on the property. Victor Teichman, who testified regarding the depictions in the photographs, explained that a fence marked the property line separating the 20-foot strip from the Rosses' property, but there was no road on the property. Photographs from the late 1960s through the early 1990s show a paved boat ramp on what appears to be the 30-foot strip, and pillions blocking vehicular access to the 20-foot strip. The 20-foot strip contained a grassy area and, closer to the water, a cement retaining wall, a paved area for picnic tables, and a small beach. A dock then extended into the water, where boats were moored. Additional photographs submitted at trial also reflect this use of the property. None of the photographs submitted show the 20-foot strip being used as a road.
Beginning in the 1980s, the properties on the north and south sides of DeWitt's Landing began to change hands, and new owners began challenging the DLDA's historic use of the property. When a subsequent owner of the DeWitt property sought to have the road commission abandon the western 120 feet of Hitchcock Avenue in March 1987, several back-lot owners wrote letters opposing the proposed abandonment, noting that the general public regularly used the road-end to reach Higgins Lake. The county road commission voted against abandoning the road.
A few months later, the same landowner informed the road commission that picnic
Thomas and Claudia McLellan currently own the property directly to the north of the 20-foot strip. Apparently the McLellans saw the property once before they purchased it, in November 1999, and there were no boats, hoists, or picnic tables on the 20-foot strip at the time.
Thomas McLellan, who testified at the bench trial in this case, did not appear to have any objection to most of the historical activities that took place on the 20-foot strip. He explained that the property had a "very long dock," and that individuals used the property "as a park, basically, swimming, lot of activities that weren't objectionable." McLellan's primary concern appeared to be with largely illegal activities that he claimed were occurring on the property, such as public urination and public intoxication. McLellan did not indicate that defendants or other DLDA members ever committed the offensive acts in question. McLellan also expressed concerns that children were accessing the lake at the 20-foot strip in order to swim unsupervised. McLellan later admitted that the activities on the property that he was concerned about were illegal, so precluding the DLDA from maintaining the area would not stop these activities from occurring.
The McLellans created the Pine Bluffs Area Property Owners Association, Inc.,
Plaintiff moved for summary disposition, arguing that the northern 20 feet of Hitchcock Avenue was dedicated to the public for use as a road through common-law dedication and, therefore, could not be used to erect permanent mooring structures in Higgins Lake, for nonincidental and nontemporary docking, and for recreational purposes. The trial court granted partial summary disposition to plaintiff, finding that questions of fact existed regarding
After the August 2008 bench trial, the trial court set forth its findings of fact on the record. In its statements, the trial court indicated an apparent belief that the 20-foot strip was part of Hitchcock Avenue pursuant to a statutory dedication. The trial court, noting that the roads set forth in the Kenwood plat were dedicated to the public, reasoned that the dedication was never removed when the plat was later vacated. The court then stated that Hellen had not excluded the southernmost 20 feet of her property when she sold her property after the plat was vacated, confirming that she had not intended to remove the dedication of the streets and alleys to the public in the Kenwood plat when she sought vacation of the plat in 1909. When both parties pointed out that Hellen had sold the southernmost 20 feet of her property as part of a larger conveyance and that the Andersons were the first landowners who chose not to include in the deed describing the property conveyed the 20-foot strip when selling their property, the trial court concluded, "Well, the portion dedicated in Kenwood to the public was never sold out by the Andersons, and if that doesn't indicate that they knew there was a road that was used for the public, I don't know what does." The trial court concluded that this 20-foot strip was then accepted as a road pursuant to a McNitt act resolution and that Jacobs applied to the scope of the dedication.
In a written judgment, the trial court ruled that the contested 20-foot strip was a public road established by common-law dedication and ordered that the 20-foot strip could no longer be used for recreational purposes, including "sunbathing, lounging, picnicking, and other activities that are non-incidental to the use of the water's surface of Higgins Lake." The court also prohibited nontemporary mooring of watercraft and the erection of non-temporary mooring structures, including boat hoists and wet anchors, on the bottomlands of Higgins Lake. Although in its oral findings from the bench the trial court had indicated a belief that defendants' activities were a nuisance, it did not address this issue in the written judgment.
On appeal, defendants challenge the trial court's determination that the 20-foot strip is part of Hitchcock Avenue, arguing that particular findings of fact by the trial court were clearly erroneous and that the trial court's conclusion that the 20-foot strip was part of Hitchcock Avenue is incorrect. We agree. We review a trial court's findings of fact for clear error, MCR 2.613(C), and questions of law de novo, Ross v. Auto Club Group, 481 Mich. 1, 7, 748 N.W.2d 552 (2008).
In particular, although the trial court ruled that the 20-foot strip was a public road pursuant to a common-law dedication, throughout its fact-finding it maintained that the 20-foot strip was a public road because the dedication of the Kenwood plat was never rescinded. Such reasoning appears to be more in keeping with a rationale that the 20-foot strip was part of Hitchcock Avenue pursuant to a statutory dedication. Finally, the parties raise as an issue whether the 20-foot strip could be considered a public road pursuant to the highway-by-user doctrine.
The somewhat disjointed reasoning presented by the trial court, as well as the parties' desire to address whether the property in question is a public road pursuant to different theories of dedication and acceptance, reveals an important, fundamental point: proper adjudication of a dispute regarding whether a public road exists requires consideration of all three recognized means of creating a public road, namely, a statutory dedication and acceptance, a common-law dedication and acceptance, and recognition of a public road pursuant to the highway-by-user doctrine. In Beulah Hoagland Appleton Qualified Personal Residence Trust v. Emmet Co. Rd. Comm., 236 Mich.App. 546, 554-555, 600 N.W.2d 698 (1999), this Court discussed these three methods under which property may become part of a public road:
We will address each method of creation of a public road in turn, as well as whether the evidence supports a ruling that the 20-foot strip was a public road.
In Kraus v. Dep't. of Commerce, 451 Mich. 420, 423, 547 N.W.2d 870 (1996), our Supreme Court considered a circumstance similar to that found in this case, addressing whether unimproved roads platted along the shore of Higgins Lake and dedicated to public use in the first decade of the last century had been accepted by the public. The Kraus Court identified the general, long-accepted rule for valid dedication of land in this state:
"However, the mere certification of a plat does not constitute acceptance of all the dedicated property." Marx v. Dep't. of Commerce, 220 Mich.App. 66, 74, 558 N.W.2d 460 (1996). Instead, the governmental authority must accept the publicly dedicated parcel of land in question, either by a formal resolution or informally through "`the expenditure of public money for repair, improvement and control of the roadway'" or through public use. Id., quoting Eyde Bros. Dev. Co. v. Roscommon Co. Bd. of Rd. Comm'rs., 161 Mich.App. 654, 664, 411 N.W.2d 814 (1987), abrogated in part on other grounds by Kraus v. Gerrish Twp., 205 Mich.App. 25, 46-47, 517 N.W.2d 756 (1994).
Further, timely acceptance of dedicated lands in a plat requires that the acceptance of the dedication "must take place before the offer lapses or before the property owner withdraws the offer." Marx, 220 Mich.App. at 78, 558 N.W.2d 460. "As long as a plat proprietor or his successors take no steps to withdraw an offer to dedicate land for public use, the offer is treated as continuing." Id. at 79,
The Kenwood plat was dedicated in 1901 and vacated by court order in 1909. The parties provided no evidence that the county ever attempted to accept the dedication of the streets and alleys located in the Kenwood plat before its vacation, either by formal resolution, by expending money on the property, or by indicating that the public used the streets and alleys (including the 20-foot strip) for their intended purpose. In fact, the parties provide no evidence regarding any use of the property until the 1920s, and a county road commission employee admitted that after a search of road commission records, she could not find any records of any dedication or conveyance that included the 20-foot strip as part of Hitchcock Avenue.
Instead, the plat was vacated before any acceptance of the dedication therein occurred. Further, Hellen, who owned most or all of the property in the plat at the time of its vacation, specifically requested in her petition that the "lots, blocks, streets, and alleys" in the plat be vacated, apparently because the layout of the plat made the property difficult to resell and affected her property taxes. Although the dedication of the public land in the Kenwood plat was not formally withdrawn through a separate court action, Hellen specifically requested the vacation of streets and alleys in the plat in her petition for vacation, and the trial court granted her request, vacating the plat in its entirety. In the absence of any evidence to the contrary, the vacation of the plat constitutes an affirmative act to withdraw the offer of dedication. See Olsen v. Village of Grand Beach, 282 Mich. 364, 368-369, 276 N.W. 481 (1937) (recognizing the vacation of a plat as equivalent of the withdrawal of a dedication).
Accordingly, the evidence presented at trial leads to only one conclusion; that the dedication of the streets and alleys in the Kenwood plat was withdrawn when the plat was vacated, before the county made any attempt to accept these streets and alleys. The trial court's conclusion to the contrary was clearly erroneous.
Further, instead of treating the vacation of the Kenwood plat as a withdrawal of the dedication before acceptance, the trial court appears to conclude that the county formally accepted jurisdiction over the 20-foot strip when it passed McNitt act resolutions in the 1930s, which were designed to incorporate township roads and streets and alleys in dedicated plats into the county road system. However, a general McNitt act resolution does not constitute acceptance of a dedicated road not specifically named in the resolution; instead, a McNitt act resolution must expressly identify the platted road in dispute or the recorded plat in which that road was dedicated "to effect manifest acceptance of the offer to dedicate the road to public use." Kraus, 451 Mich. at 430, 547 N.W.2d 870. And, although road commission resolutions accepting jurisdiction over roads in certain plats and certain county roads were presented as evidence, the trial court never determined that the 20-foot strip was specifically included among the road sections over which the county road commission asserted jurisdiction. In fact, the only listed metes-and-bounds description of roads absorbed by the county road system found in the lower court record included a road on the north side of Section 16 of Gerrish Township (presumably the southern portion of Hitchcock Avenue), but did not include a road on the south
More importantly, however, the Kenwood plat had been vacated for over 25 years before the county road commission passed the first McNitt act resolution. To accept the public lands dedicated in the Kenwood plat, the county had to accept the dedicated lands before the offer was withdrawn. Marx, 220 Mich.App. at 78, 558 N.W.2d 460. Even if the county road commission did attempt to accept the dedication in the Kenwood plat through McNitt act resolutions, any attempts at acceptance over 25 years after vacation of the plat (and corresponding withdrawal of the dedication in the plat) are certainly not timely.
The trial court also determined that the dedication of streets and alleys for public use was never withdrawn after the Kenwood plat was vacated because the deeds of the property transferred after the Kenwood plat was vacated did not include the 20-foot strip. However, as the deeds introduced into evidence make clear, and as both parties noted during the trial court's oral findings of fact, Hellen included the 20-foot strip when she sold her property in 1922, and the deed did not identify the 20-foot strip as a road or distinguish it in any way. The 20-foot strip continued to be included in deeds in subsequent sales in 1924, and eventually Osian and Hulda Anderson acquired ownership of the 20-foot strip, along with the property to the north of it. They subsequently did not include the 20-foot strip with the property that they sold to the Rosses in 1931. Although the trial court was made aware of this at the end of its fact-finding, the trial court did not change its ruling or indicate in any detail the extent, if any, to which its apparent misunderstanding of the facts might have affected its decision.
The trial court's rationale for determining that the 20-foot strip is a public road pursuant to common-law dedication is unclear. The clearest indication of its rationale for determining that a common-law dedication existed comes from its response to the parties at the end of its fact-finding, when the parties informed the trial court that several deeds describing transfers of the property after the Kenwood plat was vacated did not include the 20-foot strip. When presented with this information, the court responded, "the portion dedicated in Kenwood to the public was never sold out by the Andersons, and if that doesn't indicate that they knew there was a road that was used for the public, I don't know what does." It appears that the trial court determined that a common-law dedication existed because all or part of the 20-foot strip had once been dedicated as a road in a plat that was subsequently vacated, and the Andersons did not include in the description of the property conveyed the 20-foot strip when they sold the adjacent property to the Rosses in 1931. The trial court appeared to conclude that this information established that the Andersons intended to dedicate the property as a road pursuant to a common-law dedication. We disagree.
Again, "a valid common-law dedication of land for a public purpose requires (1) intent by the property owners to offer the land for public use, (2) an acceptance of the offer by the public officials and maintenance of the road by public officials, and (3) use by the public generally." Appleton Trust, 236 Mich.App at 554, 600 N.W.2d 698. A common-law dedication
We do not agree with the trial court's conclusion that the mere fact that a subsequent owner of the property did not convey the 20-foot strip by deed is sufficient to establish that this property is part of Hitchcock Avenue. Instead, we conclude that the evidence included in the lower court record is insufficient to establish that the Andersons intended to offer the 20-foot strip for public use when they excluded this property from their deed transferring title of some of their property to the Rosses. For this reason alone, the trial court's determination that the 20-foot strip is a public road pursuant to a common-law dedication is incorrect.
In the absence of any evidence to provide context for the sale, the Andersons' decision not to convey the 20-foot strip to the Rosses does not constitute an unequivocal demonstration of a clear and positive intent to dedicate the 20-foot strip to the public for use as a road. Although it is conceivable that the Andersons could have chosen not to convey the 20-foot strip because they intended for the property to be used as a road, it is also conceivable, for example, that they chose not to convey the 20-foot strip because they wanted to provide area residents with a site close to Hitchcock Avenue where they could recreate. Further, considering that the lower court record indicates that the Rosses consented to the historical recreational use of the 20-foot strip during their long residence at the property to the north of the strip, it is also conceivable that the Rosses chose not to purchase the 20-foot strip because they wanted their neighbors who lacked lake access to have a place available along the water for picnics and general recreation.
Further, we do not believe that the fact that all or part of the 20-foot strip had once been dedicated as a road in a vacated plat indicates that the Andersons had a clear and positive intent to dedicate the 20-foot strip to the public for use as a road when they sold some of their property to the Rosses in 1931. The property that the Andersons purchased had changed hands several times after the Kenwood plat was vacated, and each of these transfers included the 20-foot strip as part of a larger parcel of property, without distinguishing the 20-foot strip or otherwise indicating that it was a road. Further, there is no evidence that the Andersons were even aware that all or part of the 20-foot strip had once been dedicated as a road. Without affirmative evidence that the Andersons were even aware that the property had once been dedicated as a road, we do not believe that a dedication in a plat vacated in 1909 is sufficient to establish that the Andersons had a clear and positive intent to dedicate the 20-foot strip to the public for a road in 1931.
In addition, the trial court appeared to base its conclusion that the Andersons intended to dedicate the 20-foot strip to the public as a road on its determination that the 20-foot strip had been used as a road for at least seven years by the time of the 1931 property transfer. The trial court based this fact-finding entirely on the testimony of a long-time Higgins Lake resident, Myrtle Moore, who had testified regarding
When addressing whether the dedication of a strip of land along the southern boundary of the Kenwood plat was ever rescinded, the trial court stated,
It is not clear from the trial court's statements how much weight it placed on Moore's testimony when determining whether the 20-foot strip was intended to be a road, although the trial court admittedly placed more weight on her testimony than on testimony concerning later uses of the property. But regardless, the trial court appeared to base its determination that the 20-foot strip was used as a road in the 1920s on a misreading of Moore's testimony. Although Moore testified that she and her family would go to DeWitt's Landing for recreation when she was a child, she never specifically identified that the "path" that she and her family used to get to the water was on the 20-foot strip, and not on another part of the lakeshore. Further, although she also testified that she saw individuals drive trucks onto the lake to cut ice during the winter and launch boats from the lakeshore, again, she never identified whether this travel occurred on the 20-foot strip. Accordingly, the trial court's determination that Moore's testimony established that the 20-foot strip was used as a road or path to the water is clearly erroneous. At most, Moore's testimony establishes that a road or path to the water existed in the general area, but it does not, on its own, establish that the road or path was specifically on the 20-foot strip.
Accordingly, we conclude that the trial court erred when it determined that the 20-foot strip was a public road through a common-law dedication. Because the evidence included in the lower court record fails to establish that the Andersons intended to offer the 20-foot strip for public use, we need not address the other elements of a common-law dedication.
The trial court never appeared to address whether the 20-foot strip is a public road pursuant to the highway-by-user doctrine. However, because the parties raise this as an issue, and because consideration of this doctrine is necessary to ensure a complete review of the issue, we will address whether the 20-foot strip is a public road pursuant to this doctrine. Again, to establish a public road pursuant to the highway-by-user statute, MCL 221.20, plaintiff must establish "(1) a defined line, (2) that the road was used and worked on by public authorities, (3) public travel and use for ten consecutive years without interruption, and (4) open, notorious, and exclusive public use."
The evidence included in the lower court record is insufficient to establish that the road commission or other public officials ever used or maintained the 20-foot strip. Initially, the trial court determined that the road commission expended some money on the 20-foot strip, apparently by putting in a guardrail. However, we do not believe that the mere fact that the road commission put a guardrail and "Road Ends" sign up at the eastern edge of the 20-foot strip constitutes evidence that the road was used and worked on by public authorities. In fact, the presence of the guardrail and sign, both of which indicate to the public that the road ends at that point and not at the water's edge, could constitute evidence that the road commission would not, and did not, use or maintain the property to the west of the guardrail (consisting of virtually the entire 20-foot strip) as a road.
Also, there is no evidence in the lower court record regarding whether the road commission actually performed maintenance work on the 20-foot strip itself. Instead, DLDA members testified (and their signs on the property indicate) that the road commission has never spent money on or otherwise maintained the 20-foot strip. Further, a road commission employee testified that she could find nothing in the road commission's records indicating that it performed maintenance on the 20-foot strip. Although there is some evidence that the road commission entertained requests to perform repairs on the boat ramp on the 30-foot strip and to seek removal of the picnic tables and bulletin board seasonally placed on the 20-foot strip, there is no evidence that the road commission ever acted on these requests. Accordingly, we conclude that the road commission never used and worked on the road, as is required to establish that certain property is a public road pursuant to the highway-by-user doctrine.
Next, defendants claim that the trial court erred when it concluded that the limitations set forth in Jacobs, regarding the use of road ends along Higgins Lake, applied to the 20-foot strip because the 20-foot strip is not a road and, even if the 20-foot strip were a road, Jacobs does not apply to roads created by common-law implied dedication. Jacobs addresses whether certain activities occurring at the end of a platted road along the shore of Higgins Lake violated the statutory dedication of the street in the original plat "`to the use of the Public.'" Jacobs, 199 Mich.App. at 671, 502 N.W.2d 382. The Jacobs Court specifically confined its review to the question "whether the disputed activities are within the scope of the plat dedication." Id. Because we have concluded that the 20-foot strip is not a road under any of the
Defendants argue that they have a vested right in the 20-foot strip under either a theory of adverse possession or prescriptive easement. Because the 20-foot strip is not a road, the road commission has not acquired any jurisdiction over the 20-foot strip. Accordingly, title to the property rests in the Andersons, the last titleholders of the property, and their heirs or devisees.
There is no evidence that the Andersons or their descendents still maintain a presence at Higgins Lake. Yet the evidence also indicates that the DLDA, a non-profit organization, used and maintained the 20-foot strip for at least 50 years. The evidence suggests that in this situation, the DLDA might have a claim of adverse possession.
Defendants argue that the trial court erred when it granted plaintiff's motion
Finally, defendants question the trial court's ruling that certain uses of the 20-foot strip constitute a nuisance. In particular, defendants claim that the evidence presented did not support the trial court's determination and, regardless, plaintiff had no claim under the theory of coming to the nuisance. Defendants also argue that the trial court erred when it determined that prohibiting the historical uses of DeWitt's Landing, including use of the property for sunbathing, picnicking, and recreating, would be sufficient to abate the activities that were allegedly the source of plaintiff's allegation of nuisance. Because nuisance-abatement proceedings are generally equitable in nature, our review is de novo. Capitol Props. Group, LLC v. 1247 Center Street, LLC, 283 Mich.App. 422, 430, 770 N.W.2d 105 (2009).
The trial court's holding with regard to this issue is unclear. The trial court addressed the nuisance issue in its oral findings of fact, indicating that a nuisance existed because people were making loud noises, urinating, and having bonfires on the 20-foot strip. The trial court then appeared to conclude that a nuisance existed because DLDA members were using the property in a manner inconsistent with the limitations set forth in Jacobs. The judgment in this case does not address the nuisance issue specifically; instead, it simply prohibits certain activities on the 20-foot strip, including sunbathing, lounging, picnicking, and other activities non-incidental to the use of the water's surface of Higgins Lake, because these activities are "beyond the scope of the dedication." The trial court never actually ruled, either at the bench trial or in its judgment, that making loud noises, urinating, and having bonfires on the 20-foot strip was a nuisance, nor did it issue a ruling preventing these activities from occurring.
We speculate that the trial court simply concluded that its judgment restricting the use of the 20-foot strip would be sufficient to address any alleged nuisance. The trial court's statements at trial, combined with its failure to address the issue in its judgment in this case, indicate that the trial court might have found the nuisance issue moot in light of its ruling restricting use of the 20-foot strip. It also appears that the trial court's order restricting certain uses of the 20-foot strip is simply an application of the limits of the uses of platted road ends set forth in Jacobs. However, in light of our holding that the 20-foot strip is not a road, remand to the trial court is necessary with regard to this issue. On remand, the trial court must readdress the issue to determine whether any of defendants' alleged activities on the 20-foot strip constitute a nuisance and issue a
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Comprising Lots No. (2) two (3) three and four (4) of Section nine (9) Town 24N R3 West Roscommon Co Mich. Commencing at a point marked thus [x] at the meander post on the east bank of Higgins Lake on Section Line Between Section Nine and Sixteen. Then running East on Section Line 880 to West 1/8 Post Bet. Sec 9 & 16 marked thus. [x] Thence north on West 1/8 line Sec Nine 3996.96 feet to NW 1/8 Post Sec nine marked Thus [x], thence west on north 1/8 line 1255 feet to meander post marked thus.[x] Thence southerly along the meander line Sec. Nine 4007 ft to the place of beginning.
Accordingly, the trial court would need to apply this test to determine if a nuisance, in fact, occurred in this case.
