Auditor General v. Klenk

Per Curiam.

This case was before the Court in 1962. The result was reversal and remand for full hearing. See Auditor General v. Klenk (1962), 367 Mich 65. Thereafter Circuit Judge Allan C. Miller, of the 23d circuit, undertook hearing and determination of the merits. His first judgment, ruling that the herein considered Munzel survey properly delineated the questioned portion of the boundary between Macomb and Wayne counties, was appealed to this Court by the attorney general and counsel for intervening local units of government. In the course of submission of that appeal it was learned that all parties requisite to complete determination of the central and originally posed question had not been brought before the Court. Accordingly, a second order of remand issued July 14, 1965. The order proceeds:

“Ordered that the original record be and the same is remanded to the circuit court for the county of Macomb with instruction that the court order joinder of all necessary parties, as same may be determined by that court, including the county of Wayne, and that the court require of parties thus newly joined that each plead to the issue which was remanded for hearing in Auditor General v. Klenk, 367 Mich 65.

“The circuit court thereupon will proceed to hear such additional proof as may he desired by all parties and will prepare a supplemental opinion and new judgment upon the record as supplemented; whereupon the original and supplemental record may be certified to this Court for consideration and such further proceedings in this Court as may then be ordered.”

This order has been fully executed by Judge Miller. The county of "Wayne appeared and participated actively in the supplemental hearing. A supplemental record, consisting of more testimony, additional exhibits, a supplemental opinion and a supplemental judgment, was made and certified as in the July 14 order provided. The supplemental judgment reversed the result of Judge Miller’s first judgment. The essence thereof rests upon these supplemental findings:

“1. That all public authorities adopted the so-called Dingman-Lehner line from 1944 to the present and that the joint survey of 1966 ("Wayne county exhibit la, lb, lc) documents this line by field notes and drawings duly recorded and relates the same to physical monuments presently existing on the ground.

“2. That said line depicts the present line of occupation between said counties of Wayne and Ma-comb.

“3. That deplorable consequences would result in disrupting this line as the county and municipal line in use extensively from 1956 to date, during which time the area has been developed into subdivisions and homes erected thereon, including the utilities and improvements necessary thereto.

“a. Only 10% of the lots in the area are vacant today.

“b. Nearly all of the public utilities and houses were constructed after the tenure of Fred B. Cheek, city engineer for St. Clair Shores. He was in office from 1956 to 1962.

“4. That the document known as joint survey— 1966, recorded in liber 15965, page 486 et seq., Wayne county records, be and is hereby found to be the established and located county line on the ground for all purposes hereafter.”

Since remand by the order of 1965, the central issue has changed. Now that issue is whether a private survey made for the defendant objectors in 1960 by Herbert Munzel, a civil engineer, said by these objectors as having located the northerly boundary of Wayne county according to a survey made in 1816 by government surveyor Joseph Fletcher, should be held prevalent over the “Ding-man-Lehner” county line survey of 1918 and the coincident or near coincident “joint survey of 1966.” To put the issue conversely, it is whether for the same locating purpose the “joint” county line survey of 1966 should prevail over the Munzel survey. Our answer, given de novo upon the whole record, is that Judge Miller was right in giving dominant effect to the manifestly more exacting survey of 1966.¹

To portray in our official report the divergence of the two last mentioned lines of survey, request was made of counsel that a stipulated sketch be made and sent to the clerk; such sketch to depict the locus and measurement, at and near the lake shore, of the width of such divergence. Counsel were unable to stipulate with result that a choice has been compelled between 2 separately contributed sketches. One, appearing at the margin, has been accepted as somewhat less argumentative. To it we add explanatory factual comment as follows:

The base line referred to in the record is known generally as the boundary which divides the counties of Oakland and Macomb from Wayne county. Along that line 8 Mile road extends east, from and beyond the western boundary of Wayne county, to the intersection of 8 Mile with the west end of Detroit’s southeasterly bearing Vernier road. All parties agree that Mr. Fletcher extended the base line east from a point near that intersection to the international boundary in Lake St. Clair, thus completing the county line. As to such extension, however, no trail, road, or other like definitive line has ever been cut through or graded, either to Jefferson avenue as and when extended, or to the lake. No occupational line has been established along the actual or supposed line of the Fletcher extension. No recorded recognition of that line has been shown save only a plat of land known as G-aukler Pointe Shores, made in 1916.² And if any artificial objects or monuments were placed along the line of the Fletcher extension “by the hand of man,” meaning Mr. Fletcher’s hand (Of 12 Am Jur 2d, Boundaries, § 4. Monuments, pp 549, 550), the same cannot now he found.

The beginning hint of question as to the precise location of the county line, near the lake, seems to have been the auditor general’s insistence that a county boundary survey should be made and recorded by the local authorities.³ That was done. The result is known in the record as the Dingman-Lehner survey of 1918.

Mr. Dingman then was county surveyor of Wayne. Mr. Lehner then was county surveyor of Macomb. Mr. Dingman made the survey, prepared the required notes and plat and saw to the recording of the plat. Mr. Dingman deceased prior to any of the hearings below. His notes could not be located. Mr. Lehner’s part in the project seems only to have been that of attesting the plat by signature. His testimony, due as we perceive to age and dimming memory, was not particularly helpful beyond the giving of a general picture of the former condition of the area.

The foregoing summarizes in general the situation as it stood immediately prior to and at the time of the Dingman-Lehner survey. It brings to focus the comparative situation as it stood in the beginning, prior to commencement of development of the area.

The boundaries of all private claims which then and now extend across both sides of this area antedated the Fletcher survey. They were located and patented according to parallel boundaries extending inland from the lake for considerable distances, in the case of private claim 222, nearly 3 miles. One haunting cause of the present dispute may lie in the fact that such parallel boundaries extended inland from the shore some few degrees north of west. There certainly is no doubt that in 1816 the easterly end of private claim 222 was partly in what is now Macomb county and partly in what is now Wayne county; also that it remains so today. And it is in that end that the important part of this boundary-questioned area lies.

For an appreciable distance inland the area of the easterly extended base line originally was marshland, subject presumptively to the same fluctuations of the level of Lake St. Clair as came to consideration in State v. Venice of America Land Co. (1910), 160 Mich 680. From the testimony of Mr. Lehner, and by comparing the Macomb county atlas of 1895 with the Macomb county atlas of 1916,⁴ we gather that the mentioned marshy condition prevailed substantially until about the turn of the century.

As against the situation as same stood prior to the time of the Dingman-Lehner survey, radical changes have since taken place. Starting with emphasis prior to and during World War 2, and accelerating rapidly thereafter, the area in and around this boundary-disputed triangle was filled and raised for construction and municipal improvement purposes. Now and for some years it has consisted generally of an excellent residential district characterized by all of the zoned attributes thereof and the installation of water mains, drainage and sewer lines, service utilities, et cetera. Now and for some years there have been lines of occupation and legal recognition giving rise to the controversially-briefed question of acquiescence in the Dingham-Lehner survey. Now and since 1925 the southern boundary of Macomb county’s village of St. Clair Shores (now city of St. Clair Shores) has been anchored to and coincides with the line of the Ding-man-Lehner survey.

This brings us to the stated central issue. The correct resolution of that issue depends upon careful comparison of Mr. Munzel’s testimony with considerable opposing testimony given by other present day engineers. All of these witnesses, Mr. Munzel included, were fully qualified. No portion of their testimony, as it reads, raises any question of credibility. Understandable zeal for the causes of their respective employers is the only factor of cautionary approach.

The testimony of each engineer was given for the purpose of locating, if possible or as closely as possible, the Fletcher line of 1816 as it approached Lake St. Clair. But the careful reader of the whole thereof is left with abiding conviction that no witness has, and no field party however skilled could, locate the Fletcher line (on the ground rather than the drawing board) other than by rough approximation. We are left accordingly with proof developing in the present century, commencing prominently with the fact and ensuing recognition of the Dingman-Lehner survey.

Due consideration of all testimony received has left the Court with additional impressions of determinative moment. The first is that Mr. Fletcher attempted to and did, in this area, lay out and record a line which extended across then pretty much worthless swampland. Aside from aquatic birds and animals, it was inhabited only by a few settlers who, having filed or perfected their private claims, resided in the vicinity.⁵ He had no reason for modern day precision and none of today’s means of ascertainment thereof. His task was difficult and is fraught with the acknowledged fact (Diehl v. Zanger [1878], 39 Mich 601, 605) that few of these early government surveys can withstand the test of a careful and accurate survey “without disclosing errors.” Now there are no located or discoverable monuments which may have been set by him. Nor have any occupational lines been proven which follow his survey, whereas the Dingham-Lehner survey is supported preponderantly by occupational recognition and preponderant proof of continued acquiescence. As to the effect of such proof, see Elberta v. City of Frankfort (1956), 347 Mich 173, 184.

The next is that all these surveys of the early 1800’s cannot be accorded the verity of modern corresponding work. The former as to course depended alone upon the magnetic compass with its limited length of sight and subjection of the needle to the inaccuracies of variation and deviation. Mr. Fletcher also had no advantage, as did the 1966 survey party, of having his surveying errors, if any, discovered and corrected by a computer prior to completion of the work assigned to him. Nor did Mr. Munzel have such an advantage, so far as his testimony discloses.

The next is that Mr. Fletcher’s field notes disclose, without explanation, that a significantly pertinent portion thereof was stricken out by the drawing of lines through such portion. It is not known whether that was done by Mr. Fletcher himself or, as objector William C. Klenk theorized, by some unauthorized person “in Washington” after the notes were filed in the surveyor general’s office. The result in any event leaves doubt that the Fletcher notes are reliable, at least for present purposes.

The last of these notable impressions stems from an enigmatic portion of Mr, Munzel’s testimony. He said that Fletcher’s line as it extended eastward was determinable properly by “Not where he tried to go, but where he went”; also that Fletcher didn’t go due east. Mr. Munzel is testifying, connectedly:

“Q. Now, there was some questioning on cross-examination about Fletcher’s bearings, and you testified that he bore east. I believe the court asked you why you did not go east as well. Did Fletcher actually g’o east, if you know?

“A. As well as he could with the instruments that he did have. He was going generally east.

“Q. He was trying to go east?

“A. Yes.

“Q. But on the basis of the evidence which you have discovered did he do so?

“A. No, I am sure he did not.

“Q, If he had, your line would be a due east line, wouldn’t it?

“A. It wouldn’t have a bend in it for one thing.

“Q. And it would not have any courses on it which varied from due east, would it?

“A. My line?

“Q. Yes.

“A. Rephrase the question.

“Q. Well, if Fletcher had in fact succeeded in what he was trying apparently to do, namely, to go due east, then your line would be the same thing, would it not?

“A. Yes.

“Q. Did the surveyors in Fletcher’s area use a compass mounted on a mast for setting directions?

“A. Yes.

“Q. And this on the magnetic pole?

“A. Yes.

“Q. Would this explain in your opinion a deviation by Fletcher, a deviation from a due east course ?

“A. That would help explain, yes.

“Q. Your function as a surveyor is to find where he actually went?

“A. Yes.

“Q. Not where he tried to go, hut where he went?

“A. Yes.

“Q. And is that what you have done?

“A. Yes, sir. I have tried to.”

To summarize and remand:

The foregoing suggests cogently that the joint survey of 1966, confirming as it does the 1918 Ding-man-Lehner line, is the best available evidence of the original location of the Fletcher line and, hence, of the originally established boundary which divides Macomb county from Wayne county in the vicinity of Lake St. Clair. The 1966 survey is therefore adopted for adjudicatory purposes and the record will be remanded with instruction as follows:

To clear the way for entry of a new decretal judgment the circuit court will vacate the judgment entered December 16, 1963, and the supplemental judgment entered September 25, 1967. Thereupon that court will settle and enter such new judgment as will finally adjudicate adoption as above of the 1966 survey. The judgment will determine such remaining questions as depend upon that adjudication and will provide all necessary relief as may be incident to and due on account thereof.

No costs will be awarded, below or here.

Dethmers, C. J., and Kelly, Black, and T. M. Kavanagh, JJ., concurred.

APPENDIX — PORTION OF JUDGE MILLER’S FIRST OPINION, FILED NOVEMBER 5, 1963

“This court makes the following findings of fact:

“1. In 1816 Joseph Fletcher, a surveyor, was employed by the United States surveyor general to survey the Michigan base line from a point approximately where the city of Northville is presently located, eastward to the shoreline of Lake St. Clair. Mr. Fletcher’s authority to do so was contained in instructions, objectors’ exhibit 2, on the second page of which is found the following recital:

“ ‘You will then continue the base line to the eastern boundary of the territory, which will probably be at a point on the border of Lake St. Clair.’

“2. Joseph Fletcher’s field notes (objectors’ exhibit 3), together with his letter to Edward Tiffin dated September 30, 1816 (objectors’ exhibit 4), indicate that Fletcher did just as he was instructed. He ran the base line to the shore line at a point 1.73 chains (114.18 feet) south of the northeast corner of private claim 222.

“3. By executive act of Lewis Cass, governor in and over the territory of Michigan, by proclamation dated November 1, 1815, the county of Wayne was bounded as follows:

“ ‘Beginning in Lake St. Clair, on the boundary line between the United States and the British province of upper Canada, at a point due east from the intersection of the base line with Lake St. Clair, and running thence west to the line between the seventh and eighth ranges, east of the principal meridian, thence with the said line, south, to the line between the townships numbered 4 and 5, south of the base line; thence with the said line, between the said townships 4 and 5, to the middle of the river Huron of Lake Erie; thence with the said river, keeping the middle thereof, to its mouth; thence east to the boundary line between the United States and the province of upper Canada; thence with the said boundary line to the place of beginning.’

“4. When Michigan became a state, the first Michigan legislature enacted CL 1948, § 45.1 (Stat Ann 1961 Rev § 5.281), the effect of which is to permanently establish county boundaries as they then existed unless they shall be changed by action only of the legislature. This statute has never been repealed, and the legislature has never acted to alter the base line boundary between Wayne and Macomb counties. * * *

“11. In 1918 George A. Dingman, county surveyor for Wayne county, Michigan, and Walter J. Lehner, county surveyor for Macomb county, Michigan, both having been duly elected, qualified and acting as such surveyors, subscribed to a survey and prepared a map showing the location of the county line between Grosse Porate township, Erin township, Wayne county and Macomb county, Michigan, from Mack avenue to Jefferson avenue, which contains the notation,

“ ‘Through Hon. O. P. Puller, auditor general, of Lansing, Michigan, Charles H. Doxtater, of Detroit, Michigan had the authorities of Wayne and Macomb counties establish the line and place monuments as shown.’

“12. The Wayne county road commission in the year 1925 made a survey describing the same line as established by the Dingman-Lehner survey, exhibit 22 in this cause.”

1 This latest survey is designated “joint” and was received by the court with that label because of determination by the boards of supervisors of Wayne and Macomb counties that the county boundary in the involved area should be surveyed and determined by cooperative expense and effort, and that the joint product should be offered as evidence in this then pending action.

2 The Gaulder plat extends diagonally from the west to the west side of what is now Jefferson avenue in lines parallel with all of the nearby northwesterly-southeasterly boundaries of private claims. It extends across both of the depleted lines of survey. At certain points it was tied to a designated eounty line which Mr. Munzel later ascertained and followed. The Dingman-Lehner survey was not of course made until 1918.

With reference to the Gaulder plat, Judge Miller determined in his supplemental judgment:

“It is further ordered that the plat of Gaulder Pointe Shores Subdivision No. 1, recorded in liber 3 of plats, page 67, Macomb eounty records, and liber 37 of plats, page 14, Wayne county records, is hereby modified so that the eounty line shown therein shall be changed in accordance with that location of the eounty line as established by the joint survey of 1966, mentioned in the last preceding paragraph.”

3 For evidence of the auditor general’s request that “the authorities of Wayne and Macomb counties establish the line,” see paragraph numbered 11 of the appendix hereto, consisting of a portion ^ of Judge Miller’s first opinion. The immediately precedent making and recording of the Gaukler plat may have been the eause, or one of the causes, of the auditor general’s request.

4 The comparison shows that some time during the interval between 1895 and 1916 the Detroit United Railway graded up and extended, roughly 1000 feet inland at this point, its electric “Shoreline” from East Jefferson avenue in Detroit toward Mount Clemens. This rail line is the first real evidence in the record of the opening up of the marshy lakefront.

5 See the interesting history and description of these private claims which Mr. Lloyd L. Axford wrote in his Michigan Law of Conveyancing, published in 1921 by Fred S. Drake, pp 43, 44.