Beulah Hoagland Appleton Qualified Personal Residence Trust v. Emmet County Road Commission , 236 Mich. App. 546 ( 1999 )

600 N.W.2d 698 (1999) 236 Mich. App. 546

BEULAH HOAGLAND APPLETON QUALIFIED PERSONAL RESIDENCE TRUST, Beulah Hoagland Appleton and Walloon Lake Country Club, Plaintiffs-Appellants,
v.
EMMET COUNTY ROAD COMMISSION and Charlevoix County Road Commission, Defendants-Appellees.

Docket No. 204409.

Court of Appeals of Michigan.

Submitted December 2, 1998, at Lansing. Decided July 13, 1999, at 9:05 a.m. Released for Publication October 22, 1999.

Before: GAGE, P.J., and MacKENZIE and WHITE, JJ.

GAGE, P.J.

In this quiet title action, plaintiffs appeal as of right the trial court's grant of summary disposition to defendants pursuant to MCR 2.116(C)(4) and (10). We reverse and remand.

I.

Facts and Proceedings

The plaintiffs in this case are Beulah Hoagland Appleton, the Beulah Hoagland Appleton Qualified Personal Residence Trust, and the Walloon Lake Country Club. The contested property is a 302.5-foot long, 66-foot wide strip of land, the center line of which is the border between Emmet and Charlevoix Counties. Plaintiff Beulah Hoagland Appleton Qualified Personal Residence Trust (Trust) holds record title to the largest portion of this land. Plaintiff Beulah Hoagland Appleton (Appleton) is the Trust's settlor and occupant of lands located both north and south of the county line, including the disputed strip of land. According to plaintiffs' first amended complaint, plaintiff Walloon Lake Country Club is the record title holder to approximately twenty-six feet of the disputed strip of land located in Charlevoix County, and holds an easement in the east seventy-five feet of the land lying south of the county line. Bear River Road runs east and west toward the east side of Walloon Lake, and forms a "T" intersection with Country Club Road, which runs north and south on the east side of the lake.

In November 1996, defendants, the Charlevoix and Emmet County Road Commissions each separately ordered that Appleton remove a fence running perpendicular to the county line across the disputed property, which fence Appleton averred her father installed circa 1940, on the basis that the strip of land constituted a public highway, specifically a portion of Bear River Road extending west to Walloon Lake from the point where Bear River Road intersects with Country Club Road.^[1] The following month, plaintiffs filed the instant suit seeking to quiet title to the disputed strip of land. Plaintiffs alleged that the disputed property had never been maintained, dedicated or otherwise established as a public highway, that they held record title to the property and had openly, notoriously and exclusively occupied it for sixty-eight years, and that therefore they possessed the superior interest in the property. Plaintiffs alternatively claimed that even if defendants had ever possessed some interest in the strip of land, they had abandoned it. As a further alternative argument, plaintiffs claimed that if it was determined that a public road existed, its width would be limited by law to that width actually utilized for road purposes.

Defendants and plaintiffs both moved for summary disposition. The trial court granted summary disposition to defendants pursuant to MCR 2.116(C)(10), finding that undisputed evidence and "common sense" indicated that Bear River Road ran to the edge of Walloon Lake, and pursuant to MCR 2.116(C)(4), finding that it did not have jurisdiction over plaintiff's claim that defendants had abandoned their interests in the strip of land because it was a county road subject to the exclusive jurisdiction of the county road commissions.

II.

Analysis

A. Nature of the Case

In an action to quiet title, the plaintiffs have the burden of proof and must make out a prima facie case of title. Stinebaugh v. Bristol, 132 Mich.App. 311, 316, 347 N.W.2d 219 (1984). If the plaintiffs make out a prima facie case, the defendants then have the burden of proving superior right or title in themselves. Boekeloo v. Kuschinski, 117 Mich.App. 619, 629, 324 N.W.2d 104 (1982). Actions to quiet title are equitable in nature and are reviewed de novo by this Court. Dobie v. Morrison, 227 Mich.App. 536, 538, 575 N.W.2d 817 (1998). We also review the trial court's grant of summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a grant of summary disposition pursuant to MCR 2.116(C)(4) or (C)(10), we consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted to determine whether the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs show that there was no genuine issue of material fact to warrant a trial. Id; Walker v. Johnson & Johnson Vision Products, Inc., 217 Mich.App. 705, 708, 552 N.W.2d 679 (1996).

Plaintiffs presented sufficient prima facie evidence that they did acquire and now do possess some interest, legal or equitable, in the property. Calhoun v. Calhoun, 361 Mich. 698, 700, 106 N.W.2d 158 (1960). Plaintiffs described the chain of title through which they claim ownership of the disputed strip of property.^[2]

Appleton's affidavit stated that while she had been on the property near Walloon Lake every year since 1929, she had never witnessed any utilization or maintenance of the disputed property as a public highway. She further alleged that since 1929 trees had grown within the disputed property, some of which she replanted in the 1940's, and that she installed a closed gate that has traversed the disputed property since 1983. Appleton's son also provided an affidavit in which he alleged he had never witnessed evidence that a public right of way had ever existed within the disputed property. Photographs of the disputed property taken in 1941 and 1997 and attached to his affidavit show mature trees growing within the disputed property. Because this evidence establishes a prima facie case of plaintiffs' interest in the property, for summary disposition in favor of defendants to be appropriate, defendants must have then illustrated that as a matter of law they held superior title.

B. Sufficiency of Defendants' Evidence Regarding Establishment of a Public Road

Plaintiffs first contend that the trial court erred in granting defendants summary disposition because defendants' evidence was insufficient to establish the creation of a public highway. The trial court relied on "common sense" and the following evidence in concluding that the property was a public highway:

The plaintiffs do not dispute that various maps and surveys depict Bear River Road terminating at the water's edge.

Obviously, the townline and county line continue to the water's edge. It would seem that to terminate the road 300' from the water defies common sense, particularly in view of historical usage of bodies of water at road ends. Moreover, there is undisputed direct evidence that supports that conclusion.

Bear River Road was originally laid out by the federal General Land Office when the territory was divided into townships when the government, rather than private individuals, owned the adjacent parcels.^[3] The earliest recorded plat map, dated 1901, shows Bear River Road as an inter-county road dividing Charlevoix and Emmet Counties to the water's edge of Walloon Lake. The defendants have submitted a 1902 photograph which shows Bear River Road as a dirt trail at the intersection of Howard and Bear River Roads.

Plat maps for both Melrose and Bear Creek Townships, dated 1904, show Bear River Road going to the water's edge. A survey done in 1909 shows Bear River Road proceeding to the water's edge. This survey was commissioned by an adjoining landowner. A 1917 map shows the road terminating at the water's edge. Minutes from an April 20, 1925 joint road commission meeting reflect a resolution making Bear River Road a part of the county road system. It was known as the County Line Road at that time. A county road tax was assessed on the road. The 1931 McNitt map shows Bear River Road as gravel and certified to the water's edge. A 1940 General Highway

Map shows the road to the water's edge and a 1938 aerial map purports to show the same thing.

A 1949 declaration of dedicated roads includes Bear River Road to the lake. A 1951 map of the Charlevoix County Road System denotes which areas each county road commission is responsible for regarding maintenance and upkeep.^[4] It show [sic] the road to the water and a 1987 survey recognizes and depicts Bear River Road continuing to the edge of the lake.

The nature and extent of usage of the road to the water is disputed by opposing affidavits. Hence, as to the usage issue there is a disputed question of fact. However, the determination of the nature and extent of usage of the road is unnecessary to the court's decision. Title to county roads cannot be adversely possessed.

Thus, the trial court found defendants' "historical evidence" sufficient to establish that the strip of land was a public highway, and that plaintiffs did not acquire title because defendants had not relinquished jurisdiction or control over the road.

For a road to become public property, there generally must be either a statutory dedication and an acceptance on behalf of the public, a common law dedication and acceptance, or a finding of highway by public user. Village of Bellaire v. Pankop, 37 Mich.App. 50, 54-55, 194 N.W.2d 379 (1971). For a statutory dedication under the Land Division Act, M.C.L. § 560.101 et seq.; MSA 26.430(101) et seq., the well-established rule is that two elements are required: a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use, and acceptance by the proper public authority. Kraus v. Dep't of Commerce, 451 Mich. 420, 424, 547 N.W.2d 870 (1996). Public acceptance must be timely and must be disclosed through a manifest act by the public authority either formally confirming or accepting the dedication and ordering the opening of the street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation. Id. Similarly, 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. Bain v. Fry, 352 Mich. 299, 305, 89 N.W.2d 485 (1958); Boone v. Antrim Co. Bd. of Road Comm'rs, 177 Mich.App. 688, 693, 442 N.W.2d 725 (1989). Finally, to establish a public highway pursuant to the highway by user statute, M.C.L. § 221.20; MSA 9.21, requires (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. Bain, supra.

Defendants concede that they could not definitively establish that they had acquired ownership of the property pursuant to any of these accepted methods. They argue instead a novel theory that the trial court's grant of summary disposition was appropriate because the undisputed historical evidence they supplied demonstrated that the disputed strip of property was a public highway. According to defendants, their provision of historical maps, surveys, affidavits and photographs regarding the condition and use of the disputed strip of property to establish title to the disputed strip was sufficient because the historical documents were the only available evidence reflecting their claim on the property. None of the maps, surveys, affidavits or county records provided by defendants documents the creation of a public highway along the disputed strip of land. Nor do any of the cases cited by defendants in their brief on appeal support defendants' suggestion that a common sense notion regarding logical road placement is sufficient to vest the county with public highway ownership of property. Although defendants' evidence suggests that some people believed the disputed property constituted a public highway, defendants have produced nothing to illuminate the veracity of this belief. We simply may not conclude as a matter of law that defendants hold a superior interest in the disputed strip of land when defendants have supplied no evidence establishing their interest.

In essence, defendants are asking this Court to recognize a new basis on which to establish the creation of a public highway. Defendants urge that we need not strictly hold them to the traditional methods of proving title, and that as a matter of public policy we ought to adopt an historical evidence approach to establishing interests in property, especially in cases like this in which other, more definitive evidence is lacking. Defendants argue that public policies regarding recognition of section line roads and access to water^[5] also support adoption of an historical evidence approach. However, defendants have otherwise provided us with absolutely no authority from Michigan or any foreign jurisdiction that supports their argument concerning an historical evidence approach. Furthermore, defendants' argument ignores the fundamental notion that a property owner should enjoy exclusive control over his land. By recognizing defendants' proposed new approach to establishing a public road over land that had previously been purchased as, or thought of as, private property, we would undermine the right to hold property to the exclusion of others. Michigan Courts have long recognized that a land owner should have free and exclusive enjoyment of his property. O'Connor v. Resort Custom Builders, Inc., 459 Mich. 335, 343, 591 N.W.2d 216 (1999) (Land owners have broad freedom to make legal use of their property.); City of Lansing v. Edward Rose Realty, Inc., 442 Mich. 626, 642 n. 27, 502 N.W.2d 638 (1993) (A component of a private owner's property rights is the right to exclude others.), citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."); Vanderlip v. City of Grand Rapids, 73 Mich. 522, 533, 41 N.W. 677 (1889) (The right of exclusion or the right of complete possession and enjoyment is one of the essential elements of property in land.). Moreover, our adoption of defendants' approach would result in the taking of private property without just compensation in derogation of the Michigan Constitution. Const. 1963, Art. X, § 2. We decline to undermine property rights by adopting defendants' proposal, and thus we reject historical evidence as an independent means of establishing rights in property.^[6]

In light of our rejection of defendants' proposed historical evidence approach, and defendants' concession that they could locate no other evidence tending to show that the disputed strip of property was legally established as a public road, no genuine issue of material fact exists with respect to whether plaintiffs' possess the superior interest in the property. Because defendants cannot show that they have superior title, the trial court erred in granting defendants' motion for summary disposition and denying plaintiffs' motion. Stinebaugh, supra; Boekeloo, supra. Therefore, we remand to the trial court for entry of an order granting plaintiffs summary disposition.^[7]

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a question of public policy involved.

NOTES

[1] Although we located no determinative explanation of defendants' motivation in seeking to open Bear Creek Road as a public highway extending to the shore of Walloon Lake, the record reflects that in 1983 the Charlevoix County Road Commission had received complaints concerning blocked access to the lake at the disputed strip of property.

[2] Plaintiffs did not themselves produce as evidence the deeds conveying their interests. Defendants provided these to the court, however, alleging that language within the deeds described the disputed strip of property as a public highway and exempted this highway from the deeds' transfers of property. In its opinion and order granting defendants summary disposition, the trial court did not acknowledge whether any consideration of these deeds had entered into its decision.

[3] While defendants theorized that the federal government in its original land patents must have established Bear River Road as running to the edge of Walloon Lake, defendants failed to provide any documentation supporting their theory. To the contrary, plaintiffs did provide the trial court with an affidavit of Mary Feindt, president of the Charlevoix Abstract and Engineering Company, who asserted that she had inspected the existing records of both Emmet County and Charlevoix County regarding the original federal grants of the lands including the disputed property. According to Feindt, the descriptions of the lands conveyed by the federal patents did not identify or exempt any land along the county line as a public highway.

[4] Plaintiffs produced another affidavit of Feindt that included 1959 and 1995 Charlevoix County road certification maps. Feindt alleged these maps indicated that in these respective years, the county had certified .588 and .59 miles of Bear River Road west of U.S. Highway 131 (U.S. 131). Feindt explained that based on property surveys of this area, she had calculated the distance between the center of U.S. 131 and Country Club Drive as 3115.01 feet, very close to .59 miles (3115.20 feet). Feindt concluded that therefore the county certification did not include the disputed property. We note that although county road certification cannot create a public highway out of otherwise private property, Pulleyblank v. Mason Co. Rd. Comm., 350 Mich. 223, 230, 86 N.W.2d 309 (1957); Missaukee Lakes Land Co. v. Missaukee Co. Rd. Comm., 333 Mich. 372, 375-376, 53 N.W.2d 297 (1952), and thus a conclusive determination regarding the extent of the county's road certification would not be dispositive of the instant ownership dispute, the trial court apparently improperly made a factual finding in the context of a motion for summary disposition under MCR 2.116(C)(10) when conflicting evidence existed. Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994).

[5] Although defendants do not support their public policy argument regarding lake access with any relevant Michigan statutory authority, the Legislature has recognized, in the context of abandoned road endings at a public body of water, the "overriding concern [of] retaining public access to a body of water." Senate Fiscal Analysis, SB 715-717, July 9, 1996, p. 1.

[6] To the extent this opinion fails to address plaintiffs' argument that the trial court made several incorrect factual findings, we conclude that, in light of our decision to reverse the trial court's grant of summary disposition to defendants, we need not address these allegations.

[7] Given our conclusion that the trial court incorrectly granted defendants summary disposition, we need not address plaintiffs' additional argument on appeal that the trial court incorrectly concluded it had no jurisdiction to determine plaintiffs' common law abandonment claim.