James Little v. Betty H Hirschman

Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MARCH 31, 2004
JAMES LITTLE, CHERYL LITTLE,
STEVEN RAMSBY, MARY KAVANAUGH,
STANLEY W. THOMAS, NANCY G.
THOMAS, MICHAEL McCLUSKEY, GLADYS
McCLUSKEY, and ANN SKOGLUND,
Plaintiffs/Counter-
Defendants/Appellants,
v No. 121836
BETTY H. HIRSCHMAN,,
Defendant/Counter-Plaintiff/
Appellee,
and
GERALD W. CARRIER, SALLY ANN
CARRIER, JOHN P. VIAU, and
GENEVIEVE GUENTER VIAU,
Defendants/Counter-Plaintiffs,
and
FRANCES J. VANANTWERP, ELIZABETH
VANANTWERP, MASON F. SHOUDER,
and JEAN ANN SHOUDER,
Defendants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
We granted leave to appeal in this case to consider
whether a 1913 plat dedication of two parks “to the owners
of the several lots” is valid. That is, is it enforceable
by those in the chain of title from the original purchasers
of the lots. The Court of Appeals held that it was not on
the basis that private dedications are invalid. We
disagree with the Court of Appeals and thus reverse its
judgment and remand to that Court for further
consideration.
FACTS AND PROCEEDINGS BELOW
This case involves a dispute regarding alleys and
parks located within the Ye-qua-ga-mak subdivision in
Inverness Township in Cheboygan County, where Mullet Lake
and the Cheboygan River meet. The subdivision plat was
filed in 1913 and reflects the presence of several streets
and alleys and two parks (Lakeside Park and Riverside
Park). The plat states that “the streets and alleys as
shown on [the] plat are dedicated to the use of the
public.” Regarding the parks, the plat states that they
are “dedicated to the owners of the several lots.”
Betty Hirschman is the current owner of two waterfront
lots numbered 46 and 47. Her property is bordered by
2
Riverside Park on the east, Lakeside Park on the south, and
an alley that provides access to Lakeside Park on the west.
Lakeside Park contains a beach area that abuts Mullet Lake,
and Riverside Park is a grassy area that has been used by
lot owners for fishing and walking. Dating back to at
least the 1940s, which is as far back as anyone can now
remember, the residents of the subdivision have used the
alley between lots 47 and 48 for access to Lakeside Park
and have used Lakeside Park itself for sunbathing,
swimming, picnicking, and other beach-related activities.
In 1998, Hirschman and some other lot owners in the
subdivision obtained a judgment against the Cheboygan
County Road Commission vacating the rights of the public to
use several of the alleys that provided back lot owners
access to Lakeside Park. Having secured that ruling, they
blocked the alley west of Hirschman’s property.
Several back lot owners, claiming the right to use the
alley because of the plat’s public dedication of the alley
and the right to use the parks because of the plat’s
private dedication, filed an action asking the circuit
court to stop defendants from continuing to block access to
Lakeside Park through the alley. Defendants filed an
answer and counterclaim asserting that plaintiffs not only
had no right of access to Lakeside Park through the vacated
alleys, but also that the claimed private dedication of the
3
parks had failed because of nonacceptance by the lot
owners.
After a two-day trial the court rendered its decision
finding (1) plaintiffs were entitled to the use of the
alleys for access to the beach and (2) plaintiffs had the
right to reasonable use of the parks pursuant to the plat
as lot owners.
Hirschman appealed as of right, arguing that the
dedication of the parks to the owners of the several lots
in the plat was an invalid dedication because the
dedication was not directed to the public. The Court of
Appeals, deferring to the earlier published Martin v
Redmond, 248 Mich App 59; 638 NW2d 142 (2001),1 vacated the
trial court’s holding that the lot owners had property
rights in the parks pursuant to the dedication in the plat.2
1
We reverse the Court of Appeals judgment in Martin v
Beldean, 469 Mich __; __ NW2d __ (2004), which we also
issue today. In Martin, the Court of Appeals had ruled
that a 1969 plat with a purported private dedication of an
outlot “for the use of the lot owners” was invalid because,
in the panel’s view, dedications could not now be, or ever
in the past have been, private. We held that the Court of
Appeals had misread MCL 560.253(1), which is part of 1967
PA 288, because it specifically authorized private
dedications.
2
Little v Hirschman, unpublished opinion per curiam,
issued April 19, 2002 (Docket No. 227751). The Court of
Appeals also held that plaintiffs, as lot owners in the
plat, are entitled to the use of the alleys, even if the
public dedication of the alleys had not been properly
4
The Court of Appeals in this case recognized that the
Martin case involved a 1969 dedication that was controlled
by the Land Division Act, MCL 560.101 et seq., whereas the
Court was considering a 1913 plat that was controlled by
earlier statutes. But, because the Martin panel had
earlier concluded that private dedications “before and
after” the platting statutes were enacted were prohibited,
the Court of Appeals followed that holding.
We granted plaintiffs’ application for leave to appeal
and ordered that the case be argued and submitted with
Martin.3
STANDARD OF REVIEW
Whether a dedication of land for private use failed
under the law governing the creation of plats is a question
of law. We review de novo questions of law. Cardinal
Mooney High School v Michigan High School Athletic Ass'n,
437 Mich 75, 80; 467 NW2d 21 (1991).
ANALYSIS
From statehood until 1925 our various plat acts
authorized public dedications,4 but did not specifically
accepted by the relevant public authority. That holding is
not at issue in this appeal.
3
468 Mich 869 (2003).
4
As we explain in Martin, a dedication was
traditionally understood to be “an appropriation of land to
some public use, accepted for such use by or in behalf of
the public.” Martin, 469 Mich ___, quoting Clark v Grand
5
refer to private dedications. Yet, during this era,
without exception that has been brought to our attention or
discovered by our research, plats with dedications to
private individuals or groups were reviewed and approved by
the Auditors General of this state,5 and relied upon by
purchasers and their successors.
Moreover, not only have the Auditors General
considered this to be the law, but, also, the courts have
recognized and enforced private dedications from this era.
In Schurtz v Wescott, 286 Mich 691; 282 NW 870 (1938), this
Rapids, 334 Mich 646, 656-657; 55 NW2d 137 (1952). The law
recognized two types of dedications: statutory dedications
and common-law dedications. Alton v Meeuwenberg, 108 Mich
629; 66 NW 571 (1896). “The effect of a dedication under
the statute has been to vest the fee in the county, in
trust for the municipality intended to be benefited,
whereas, at common law, the act of dedication created only
an easement in the public.” Grandville v Jenison, 84 Mich
54, 65; 47 NW 600 (1890).
5
Our plat acts have required that proposed plats be
reviewed and approved as being in conformity with the
applicable plat act by government officials such as the
Auditor General and, later, the State Treasurer. Once
reviewed and approved for conformity with the applicable
act, the plat was eligible for recording with the register
of deeds and was considered “prima facie evidence” of the
making and recording of such plat in conformity with the
governing statute. 1839 PA 91 (1871 CL 1344, ch 32), see
1929 PA 172, p 430, as amended by 1873 PA 108, § 1, and
1885 PA 111, § 1; 1929 PA 172, § 70; 1967 PA 288, § 251,
MCL 560.251. Our Court, in discussing statutes controlling
the discharge of a public official’s duties, has indicated
it will give weight to such conclusions. As stated in
Wayne Co v Auditor General, 250 Mich 227, 236; 229 NW 911(1930), “Practical construction given to doubtful or
obscure statutes by public officers, the discharge of whose
duties are affected thereby, will be considered and given
weight by courts in construing such laws.”
6
Court considered an 1891 plat that, while it dedicated the
streets to the public, was silent with regard to the
designated parks. We found, with respect to the parks,
that any lot owner had the right to the use of the parks.
286 Mich 697. Specifically, we noted that no one objected
to the use of the parks by the lot owners and the public
until shortly before appellant Schurtz filed his complaint.
We held:
The making and recording of the plat, the
sale of lots, the use of the streets and parks by
the lot owners for a great many years estops
appellant Schurtz from now claiming exclusive
rights in the parks and streets." [Id.]
This was in effect a finding that a private dedication
was valid and enforceable. Moreover, the Schurtz Court,
quoting Westveer v Ainsworth, 279 Mich 580; 273 NW 275(1937), found such private dedications were irrevocable
upon the sale of the lots. This second holding means that
a private dedication is effective upon the sale of a lot
because it is reasonably assumed that the value of that
lot, as enhanced by the dedication, is reflected in the
sale price. That is, purchasers relied upon the
dedications that made the property more desirable.
In Thies v Howland, 424 Mich 282, 286; 380 NW2d 463
(1985), we enforced a 1907 plat with a private dedication
that stated that driveways, walks, and alleys shown on the
7
plat were “dedicated to the joint use of all the owners of
the plat.” We also held that this dedication gave the lot
owners an easement in the dedicated areas.
Private dedications were first statutorily recognized
in the 1925 plat act (1925 PA 360). This act required all
roads not dedicated to the public on a plat to be marked as
private roads and further indicated:
[I]f there be any street, park, or other
places which are usually public but not so
dedicated on said plat the character and extent
of the dedication of such street, park or other
public place shall be plainly set forth in said
dedication. . . . [1925 PA 360, § 1.]
The clear import of this language is that streets and parks
may be dedicated to less than the general public, which, of
necessity, means to private persons or entities. Although
the 1925 plat act does not expressly grant legitimacy to
private dedications contained in plats recorded before the
effective date of that statute, the act nonetheless is
significant in understanding the status of pre-1925 private
dedications because the statute did not so much authorize
the creation of private dedications as it presupposed that
such dedications were already legitimate. Cases construing
this statute have been in accord with this understanding of
the 1925 act.
In Minnis v Jyleen, 333 Mich 447; 53 NW2d 328 (1952),
this Court considered a plat that had been recorded in 1926
8
and that dedicated some streets shown on the plat to the
public with all other roads “dedicated to the use of the
property owners in the subdivision.” 333 Mich 449. In
resolving a dispute that had developed over one of the
private roads, this Court stated:
The rights granted under the dedicatory
clauses in the plat to the owners of lots in the
subdivision may not be infringed by one lot owner
for his own convenience to the detriment of his
fellow lot owners. [333 Mich 454.]
This, then, is the recognition of the validity of the
plat’s private dedication that was reinforced when the
Court also held that the lot owners had a private easement
in the road, which they were “entitled to use and enjoy.”
333 Mich 451.
In 1974 in Feldman v Monroe Twp Bd, 51 Mich App 752,
754-755; 216 NW2d 628 (1974), the Court of Appeals
considered a 1928 plat that dedicated parks to the use of
the property owners only. The Court of Appeals found this
to have been a valid irrevocable private dedication and
ruled as in Minnis that the lot owners had an easement in
the privately dedicated lands.6
6
Feldman, unlike the other cases we discuss, was
addressed by the Court of Appeals in Martin. That Court
rejected it because it believed the Feldman panel had
misread the law. The Martin panel indicated that the
Feldman Court had read the Westveer and Kirchen v Remenga,
291 Mich 94; 288 NW 344 (1939), cases, in which private
9
Similarly, in 1975, in Fry v Kaiser, 60 Mich App 574;
232 NW2d 673 (1975), the Court of Appeals held that a 1950
plat that dedicated the streets to the public and the
channels “to the use of the lot owners” gave the lot owners
an easement in the channels.
Again, in 1981, in Walker v Bennett, 111 Mich App 40;
315 NW2d 142 (1981), in considering a 1956 plat with a
private drive, the Court of Appeals held that the lot
owners had an easement in the private drive and further
noted the important legal proposition that a purchaser of
platted lands receives not only the interest described in
the deed, but also whatever rights are reserved to the lot
owners in the plat.
In the last case controlled by the 1925 act, Dobie v
Morrison, 227 Mich App 536, 537; 575 NW2d 817 (1998), the
Court of Appeals considered a 1966 plat that dedicated a
park to “the use of the owners of lots in this plat which
have no lake frontage.” The Court of Appeals, consistently
with the earlier cases and with the scope of the 1925 act,
rights arose from public dedications, to erroneously allow
for private dedications. Whatever the strength of that
proposition, the Martin panel failed to account for the
Feldman Court’s additional reliance on Schurtz, which, as
we have explained, approved a private dedication in an 1891
plat. Schurtz then, as a private (not a public) dedication
dedication case, was on point and the Feldman panel was
entitled to rely on it. More to the point, it was
irrelevant that Feldman may have read too much into
Westveer and Kirchen. Thus, the Court of Appeals was in
error to reject the holding of Feldman.
10
held that such a dedication was valid and granted the lot
owners without lake frontage an easement in the park.
All these cases, i.e., Schurtz, Thies, Minnis,
Feldman, Fry, Walker, and Dobie, stand for the proposition
that, in both the era of statutory silence on private
dedications (1835-1924) and the era of implicit statutory
recognition of private dedications (1925-1966), a
dedication of land for private use in a recorded plat gave
owners of the lots an irrevocable right to use such
privately dedicated land. We agree with such holdings.
Finally, to complete the review of private dedication
law, as we have explained in the Martin case of the same
date as this, which involves the period since the latest
plat act in 1967 (1967 PA 288), MCL 560.101 et seq.,
private dedications are expressly allowed.7 The Court of
Appeals obiter dictum to the contrary in Martin concerning
pre-1967 private dedications relied on a few cases such as
7
MCL 560.253(1) provides:
When a plat is certified, signed,
acknowledged and recorded as prescribed in this
act, every dedication, gift or grant to the
public or any person, society or corporation
marked or noted as such on the plat shall be
deemed sufficient conveyance to vest the fee
simple of all parcels of land so marked and
noted, and shall be considered a general warranty
against the donors, their heirs and assigns to
the donees for their use for the purposes therein
expressed and no other. [Emphasis added.]
11
Kraushaar v Bunny Run Realty Co, 298 Mich 233, 241-242; 298
NW 514 (1941), and subsequent cases citing it,8 that
included language stating that there is no such thing as a
dedication between the plat dedicator and individuals and
that the public must be a party to every dedication. Yet,
when read carefully, these statements must be discounted
because the foundational case, Kraushaar, actually reached
a conclusion that allowed private users to benefit from a
private dedication notwithstanding the above referenced
contrary language in the Court’s opinion. In any event,
with today’s decision, we disavow such language and clarify
that private dedications are valid in plats registered both
before and after 1967.
With the overview of private dedications completed, we
turn to the specific dedication at issue in this case. The
1913 Ye-qua-ga-mak subdivision plat stated that the parks
were “dedicated to the owners of the several lots.” This
dedicatory phrase is legally indistinguishable from the
language found in Thies, 424 Mich 286, which also concerned
a pre-1925 dedication, in which this Court held that a
dedication, “to the joint use of all the owners of the
plat,” was enforceable by those lot owners. Further
8
Detroit Edison Co v Detroit, 332 Mich 348, 353; 51
NW2d 245 (1952), and West Michigan Park Ass'n v Dep’t of
Conservation, 2 Mich App 254, 267; 139 NW2d 758 (1966).
12
reinforcing our conclusion about the efficacy of the
instant dedicatory language is the fact that it clearly
gives more to the grantees than the mere silence regarding
the right to use of the park that was found in Schurtz to
be sufficient to establish enforceable rights by the lot
owners.
Accordingly, following the lead of both the Thies and
Schurtz Courts, we hold that plaintiffs have an irrevocable
right to use the parks. To the extent it could be argued
that the case law at the time of the dedications in
Schurtz, Thies, and the instant case did not explicitly
recognize the validity of private dedications, for the
class of plat dedications dating from before the 1925
statute, we follow the rationale of Schurtz and find that
defendants are estopped from claiming exclusive rights in
the parks. Our holding, presaged by not only our case law,
but also the Auditor General’s approval of this plat ninety
years ago, is supported by the clear intent of the
dedication grantors as expressed in the words of the plat
and the reliance the original purchasers were entitled to
place on the private dedication in the plat.
CONCLUSION
For all these reasons, we hold that dedications of
land for private use in plats before 1967 PA 288 took
effect convey at least an irrevocable easement in the
13
dedicated land. Accordingly, we reverse the judgment of
the Court of Appeals and remand this case to that Court for
further proceedings consistent with this opinion.
Clifford W. Taylor
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Robert P. Young, Jr.
Stephen J. Markman
14