Keller v. Locke , 62 Mich. App. 591 ( 1975 )

62 Mich. App. 591 (1975) 233 N.W.2d 666

KELLER
v.
LOCKE

Docket No. 20474.

Michigan Court of Appeals.

Decided July 22, 1975.

David E. Burrows, for plaintiffs.

Lynch, Gallagher & Lynch, for defendants.

Before: McGREGOR, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.

McGREGOR, P.J.

At issue is a dispute over whether the defendants have a right to use a roadway which allegedly lies entirely on land belonging to plaintiffs. The trial court ruled that the roadway was a private road and enjoined the defendants from travelling over the disputed portion. Defendants appeal as of right and raise two issues for review.

First, defendants contend that the roadway has become a public highway by virtue of public user for over 10 years, pursuant to MCLA 221.20; MSA 9.21.

At trial, it was determined that the roadway had not acquired the characteristics of a public highway. As trier of the facts, a trial judge has wide discretion in his determination of the facts. This Court will not substitute its judgment on questions of fact unless the facts clearly preponderate in a different direction. Roebuck v Mecosta County Road Commission, 59 Mich. App. 128; 229 NW2d 343 (1975), Jaroske v Hurford, 373 Mich. 437, 441; 129 NW2d 891 (1964).

After careful study of the record, this Court finds that the use of the road in question by the City of Clare in its duties of hauling out fill dirt did not constitute the type of control necessary by public authorities in order to establish a highway by user under the statute. Cotton v Township of Castleton, 31 Mich. App. 620, 622-623; 188 NW2d 39 (1971). In fact, the City of Clare had erected a cable across the road in order to prevent public travel.

In addition, the infrequent maintenance and repairs by the county did not make it a public road. Maghielse v Crawford County Road Commission, 47 Mich. App. 96, 98; 209 NW2d 330 (1973).

Further, it is required that public use of a roadway be open, notorious and exclusive. Indian Club v Lake County Road Commissioners, 370 Mich. 87, 89; 120 NW2d 823 (1963). Proofs presented by defendants do not meet such requirements.

Defendants also contend that they acquired a prescriptive easement over the road through their personal use of it during the statutory period. Careful perusal of the record leads us to agree with the trial judge in his determination that such use was permissive and not adverse. Roebuck v Mecosta County Road Commission, supra.

Affirmed.