Township of Grayling v. Alan Berry

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TOWNSHIP OF GRAYLING, FOR PUBLICATION
July 23, 2019
Plaintiff/Third-Party Defendant- 9:00 a.m.
Appellee,
v No. 344297
Crawford Circuit Court
ALAN BERRY and LOUIS SCARPINO, LC No. 15-009657-CH
Defendants,
and
JOHN GUTKOWSKI, JAMES BOKHART,
ROBERT BUCHHOLZ, NANCY CHARTIER,
and DOUGLAS ELSWORTH,
Defendants/Third-Party Plaintiffs-
Appellants,
and
CAROL BUCHHOLZ, DANIEL BUJALSKI,
RENEE BUJALSKI, BETTY BOKHART,
KATHERINE CHESNEY, MICHELE
GUTKOWSKI, DON HOLLIS, MATT
LATUSEK, KATIE LATUSEK, KAREN
MARTELLA, MICHAEL SAHR, SALLY SAHR,
TIM SCARPINO, CHRISTINA SCARPINO,
CONNIE STEVENS, MICHAEL STEVENS,
JUDY MERMEESCH, PAUL WAGNER,
JOANNE WAGNER, DAN WHITNEY, SHERRY
WHITNEY, and MARJORIE WHITNEY,
Third-Party Plaintiffs-Appellants,
and
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DIRECTOR OF THE DEPARTMENT OF
ENERGY, LABOR, & ECONOMIC GROWTH,
CHAIRPERSON OF THE BOARD OF
CRAWFORD COUNTY ROAD COMMISSION,
CRAWFORD COUNTY DRAIN
COMMISSIONER, DIRECTOR OF THE
DEPARTMENT OF TRANSPORTATION,
DIRECTOR OF THE DEPARTMENT OF
NATURAL RESOURCES, GREAT LAKES
ENERGY, MICHAEL MITCHELL, and JILL
MITCHELL,
Third-Party Defendants-Appellees,
and
FRONTIER COMMUNICATIONS, CHARTER
COMMUNICATIONS, MICHAEL BUSHRE,
KELLY BUSHRE, RAYMOND CONFER,
WENDY CONFER, DAVID CONSTANTINE,
DEANNA CONSTANTINE, MICHAEL KOLKA,
HARRY & LUELLA KOLKA TRUST,
CHARLES THIEL, and MONIQUE THIEL,
Third-Party Defendants.
Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.
CAMERON, J.
The Township of Grayling (hereinafter “Grayling”) sued seven residents of Grayling,
seeking declaratory and injunctive relief regarding the scope of the dedications of three specific
platted roads located in a subdivision of Grayling known as Portage Lake Park. After this
lawsuit was filed, those seven residents, along with 22 other residents (hereinafter referred to
collectively as “the residents”), filed a third-party claim against Grayling and the Crawford
County Road Commission (hereinafter “Road Commission”), among others. The residents
appeal the trial court’s order granting partial summary disposition under MCR 2.116(C)(4) (lack
of subject-matter jurisdiction) and (C)(10) (no genuine issue of material fact) on the residents’
amended counterclaim in favor of the Road Commission and a March 26, 2018 order granting
summary disposition in favor of Grayling on its claims. Because we agree that the trial court
properly granted summary disposition of the residents’ claims, we affirm.
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I. BACKGROUND
At the center of this case is a dispute involving three platted roads, Walnut Plaisance,
Lincoln Park Boulevard, and portions of Portage Lake Drive, which are located in Portage Lake
Park. The three roads were recorded in 1901 under three separate additions—the first, second,
and fourth additions of Portage Lake Park. The roads were dedicated to and for the public’s use.
The Road Commission formally accepted Walnut Plaisance1 and Lincoln Park Boulevard2 in
1937, by way of a resolution under the McNitt Act, MCL 247.1 et seq.,3 which specifically
incorporated the two roads into the county road system.
The original plat was recorded as shown:
1
The Road Commission accepted 1,050 feet of Walnut Plaisance that was platted in the first
addition, and 1,200 feet of Walnut Plaisance that was platted in the fifth addition. The Road
Commission accepted 1,346 feet of Lincoln Park Boulevard that was platted in the fourth
addition, and 800 feet of Lincoln Park Boulevard that was platted in the sixth addition. Only the
portions of roads platted in the first, second, and fourth addition are at issue in this case.
2
The Road Commission did not accept Portage Lake Drive.
3
The McNitt Act, 1931 PA 130, repealed by 1951 PA 51, § 21, allowed the county to takeover
township roads specified as public in recorded plats. The current law, see MCL 247.669,
contains similar wording and similarly allows the takeover of roads designed as public in
recorded plats by a county, even if a township did not first accept the roads.
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A survey performed in February 2018 depicts the improved portion of Lincoln Park Boulevard:
Portage Lake Drive, much of which has since been vacated by the Road Commission, runs
parallel with and along the shoreline of what is now known as Lake Margrethe—originally
named Portage Lake. Walnut Plaisance runs north and south, intersecting Portage Lake Drive at
the shoreline. Lincoln Park Boulevard runs east and west, intersecting where Portage Lake Drive
and Walnut Plaisance meet. The area where the three roads converge is the area in dispute in
this case.
Although there are large portions of the three roads that were intended to be developed as
indicated in the 1901 plat, areas of Walnut Plaisance, Portage Lake Drive, and Lincoln Park
Boulevard have remained undeveloped since being platted, and therefore, large portions of the
roads that were intended to be developed do not actually exist. For instance, much of Walnut
Plaisance is actually forested area, including the area that was intended to reach the shoreline. In
response to a 1956 petition signed by 30 owners of real estate located in two of the additions, the
Road Commission passed a resolution abandoning a portion of Portage Lake Drive for
residential development. Although the original plat indicated that the two roads would meet at
the shoreline—Walnut Plaisance was to extend to the shoreline, and Portage Lake Drive was to
extend along the shoreline—the two were never developed and do not actually meet. However, a
portion of Lincoln Park Boulevard was opened in the 1960s and is the only road in dispute that
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was developed and reaches the shoreline of the lake. The end of Lincoln Park Boulevard—the
area the three roads as platted intersect—is now a dirt turnaround near the lake’s edge and makes
up the disputed area at issue.
Owners of backlots in Portage Lake Park have historically used the disputed area for
recreational purposes including swimming and picnicking, and they have also placed a dock for
the mooring of their boats. Grayling sought declaratory and injunctive relief regarding the scope
of the dedications of the roads, streets, alleys, and boulevards at issue. Grayling maintained that
the recreational activities of the residents exceeded the scope of the dedications and, therefore,
Grayling sought a declaration as to the scope of the dedications. Grayling also maintained that
the activities of the residents violated MCL 324.30111b, and Grayling sought to enjoin the
individual residents from violating both the scope of the dedication and MCL 324.30111b. The
residents have continually maintained that Grayling does not have an actual property interest or
right in the disputed area because Walnut Plaisance and Lincoln Park Boulevard are not public
roads, the roads do not terminate at the water’s edge, and the residents’ activities do not occur at
the end of a public road.
II. ACCEPTANCE OF DEDICATIONS
The residents first argue that the Road Commission did not accept the dedications of
Walnut Plaisance and Lincoln Park Boulevard platted in 1901, and therefore, they are not public
roads. We disagree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “Jurisdictional
questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo.”
Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). Whether an
offer of dedication has been accepted is a question of law. Christiansen v Gerrish Twp, 239
Mich App 380, 388; 608 NW2d 83 (2000). The question of timeliness amounts to a factual
determination by the trial court because it depends on the circumstances of each individual case.
Kraus v Dep’t of Commerce, 451 Mich 420, 427; 547 NW2d 870 (1996). The trial court’s
factual findings are reviewed for clear error. Vivian v Roscommon Co Bd of Comm’rs, 164 Mich
App 234, 238; 416 NW2d 394 (1987) (Vivian I), aff’d 433 Mich 511 (1989).
MCL 560.226(1)(b) and (c) provide that before a court may consider vacation, correction,
or revision of a platted roadway dedicated to a county or township, the governmental unit must
relinquish its rights. The residents maintain that the Road Commission does not have rights over
the roads at issue because the Road Commission did not timely accept the dedications. Thus, the
residents claim that the Road Commission did not accept the offers of dedication, despite the
1937 McNitt resolution, because (1) the 1937 McNitt resolution, without further action by the
Road Commission ordering that Walnut Plaisance or Lincoln Park Boulevard be opened, was
insufficient to establish acceptance, and (2) the length of time between the offers and the
resolution in this case caused the offer to lapse. They also argue that even if a McNitt resolution
is sufficient to establish acceptance, parts of Walnut Plaisance and Lincoln Park Boulevard,
specifically, the road ends, must nonetheless be vacated because the 1937 resolution referred to
(1) Walnut Plaisance in the first addition as being only 1,050 feet long, when the road, in
actuality, is 1,320 feet long; (2) Walnut Plaisance in the fourth addition as being 1,150 feet long,
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when the road, in actuality, is 1,320 feet long; and (3) Lincoln Park Boulevard in the second
addition as being 1,750 feet long, when the road, in actuality, is 1,900 feet long.
A. ACCEPTANCE UNDER THE McNITT RESOLUTION
For a road to become public property there must be (a) a statutory dedication and an
acceptance on behalf of the public, (b) a common-law dedication and acceptance, or (c) a finding
of highway by public user. Village of Grandville v Jenison, 84 Mich 54, 65-68; 47 NW 600(1890), aff’d 86 Mich 567 (1891). The roads at issue here were dedicated by statute. To create a
public road by statutory dedication, two elements are required: (a) “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 (b) “acceptance by the proper public authority.” Kraus, 451 Mich at 424.4
Public acceptance must be timely and must be disclosed through a manifest act by the proper
public authority either formally confirming or accepting the dedication and ordering the opening
of the street, or informally by exercising authority over it, in some of the ordinary ways of
improvement or regulation. Kraus, 451 Mich at 424.
The residents assert that the 1937 McNitt resolution standing alone, without the Road
Commission ordering the opening of the roads, is insufficient to constitute acceptance. In
support of their argument, the residents cite Higgins Lake Prop Owners Ass’n v Gerrish Twp,
255 Mich App 83; 662 NW2d 387 (2003), aff’d 469 Mich 907 (2003). However, Higgins Lake
did not hold, as the residents claim, that “in addition to a timely acceptance, something more
than a McNitt Act Resolution is required to perfect the acceptance.” Rather, this Court stated,
“We need not consider whether the McNitt resolutions in this case were sufficient to constitute
formal acceptance of Montrose Avenue” because the Court resolved the issue “on the basis of
MCL 560.255b, the 1978 amendment of the Subdivision Control Act (formerly the Land
Division Act) that creates a presumption of acceptance.” Id. at 114-115.
In Rice v Clare Co Rd Comm, 346 Mich 658, 664; 78 NW2d 651 (1956), the county road
commission adopted a resolution in 1937 and “[r]esolved that the streets and alleys in the several
plats of the county described below” “are taken over by the County” under the McNitt Act. The
plats were described as “Plat of Tompkins Resort, part of Government Lots 6-7, Section 17,
Township 18 North, Range 5 West, Clare [C]ounty Michigan, total mileage of the streets and
roads, 1.3792.” Id. The Supreme Court held that the McNitt resolution, by itself, constituted a
valid acceptance of the offer to dedicate. Id. at 665.
In Kraus, 451 Mich at 427-430, the Court held that a McNitt resolution cannot suffice to
accept a road if it is a general resolution purporting to take over all dedicated roads in a county.
Id. Instead, a McNitt resolution must expressly identify the platted road in dispute or the
4
In Wayne Co v Miller, 31 Mich 447, 448 (1875), the Supreme Court explained that the
requirement of public acceptance by a manifest act, whether formally or informally, was
necessary to prevent the public from becoming responsible for land that it did not want or need,
and to prevent land from becoming waste property, owned or developed by no one. Id. at 448.
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recorded plat in which the road was dedicated “to effect manifest acceptance of the offer to
dedicate the road to public use.” Id. at 430.
In Christiansen, 239 Mich App 380, the plaintiffs owned property in a subdivision in
Gerrish Township that was bordered on the northern edge by Higgins Lake and bordered on the
western edge by Grand Boulevard, which ran toward the lake. Id. at 382. The entire 505-foot
length of Grand Boulevard was set forth in a 1903 plat of the subdivision and was offered to be
dedicated for public use. Id. at 382. Approximately 280 feet of the boulevard was paved; the
remainder of the boulevard was undeveloped from the mid-point of the plaintiffs’ property to the
shore of the lake. Id. The plaintiffs argued that a McNitt resolution, by itself, was insufficient to
establish acceptance of the undeveloped portion of the boulevard. Id. at 386-387. This Court,
despite describing one footnote in Kraus, 451 Mich at 429 n 5, as “a wavering by the Kraus
Court regarding whether a McNitt resolution that specifically identifies the road in question is
sufficient evidence of a formal acceptance,” noted that “the Kraus Court did not reject Rice but
merely clarified its holding.” Christiansen, 239 Mich App at 389. This Court found that Rice, as
clarified by Kraus, remained good law and that “the current state of the law, until such time as
the Supreme Court overrules Rice, is that such a resolution does suffice to accept the road.” Id.
This Court held, “Therefore, as long as a McNitt resolution expressly identifies the street in
question, the resolution suffices as evidence of a formal acceptance of the street.” Id. at 390.
This Court concluded that the 1940 resolution specifically identifying Grand Boulevard was
sufficient evidence of a formal acceptance by the county. Id.
The 1937 McNitt resolution in this case expressly identified Walnut Plaisance and
Lincoln Park Boulevard. This is sufficient evidence of a formal acceptance of the dedication of
both roads by the Road Commission. Accordingly, the trial court did not err in concluding that
the Road Commission formally accepted Walnut Plaisance and Lincoln Park Boulevard by way
of resolution.
B. TIMELINESS OF THE ACCEPTANCE
The residents argue that the 1937 acceptance of the 1901 offers to dedicate were
untimely. “[T]imely 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.’ ”5 Pine Bluffs Ass’n v Dewitt Landing Ass’n, 287 Mich App 690, 715; 792 NW2d 18
(2010), quoting Marx v Dep’t of Commerce, 220 Mich App 66, 78; 558 NW2d 460 (1996). As
long as the original proprietor or his successor takes no steps to withdraw the offer, the offer
must be considered as continuing. Kraus, 451 Mich at 427; White v Smith, 37 Mich 291, 295-
296 (1877). In White, the Court opined, “There is no doubt but that an acceptance must be made
within a reasonable time, but what shall be considered such time must be largely governed by the
surrounding circumstances in each case. And so long as the original proprietor, or those
claiming through him, take no steps to withdraw the offer, we think it must be considered as
5
Withdrawal occurs “when the proprietors use the property in a way that is inconsistent with
public ownership.” Kraus, 451 Mich at 431.
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continuing.” White, 37 Mich at 295-296. Similarly, the Kraus Court held that “whether an offer
to dedicate lapsed or continued depends on the circumstances of each case.” Kraus, 451 Mich at
427. The Kraus Court noted, “While the outer limit for acceptance within a reasonable time has
not been set, we note that this Court has held that a 1961 acceptance of an 1874 grant (eighty-
seven years later) was unreasonably late.” Kraus, 451 Mich at 427.
In this case, the residents did not present evidence of any attempts to withdraw the offers
to dedicate Walnut Plaisance and Lincoln Park Boulevard before the Road Commission’s
acceptance in 1937. Accordingly, under Kraus, 451 Mich at 425-427, the offers remained open
at the time of the acceptance.
In Christiansen, 239 Mich App at 391, this Court found that the 37-year span between the
offer and acceptance was more in line with Ackerman v Spring Lake Twp, 12 Mich App 498,
501; 163 NW2d 230 (1968) (holding that a 26-year time span was not unreasonable) than with
Kraus, 451 Mich at 435 (holding that an 86-year time span was unreasonable). In this case, the
36-year time span between the offer and acceptance is similar to that in Christiansen, and
therefore, was not unreasonable.
The residents point to Vivian, 433 Mich 511; 446 NW2d 161 (1989) (Vivian), and the
cases cited therein, to support their argument that a 36-year time span between dedication and
acceptance is excessive. In Vivian II, the plaintiff brought an action against the Roscommon
County Board of Road Commissioners and others seeking to vacate an alley, street, and
boulevard dedicated to public use in a 1901 plat. Id. at 513. The plaintiff had fenced, cared for,
and maintained the property for over 40 years. Id. at 517. The dedication had not been accepted
by any of the defendants. Id. The Supreme Court granted leave limited to the issue whether a
1978 amendment of the Subdivision Control Act of 1967,6 1967 PA 288, MCL 560.101 et seq.,7
was applicable to the case. Id. at 513. The Court found that there was sufficient evidence to
show that the plaintiff had withdrawn the dedication before the effective dates of either the act or
the 1978 amendment. Id. at 516. The cases cited in Vivian II involved situations where a
substantial period of time had elapsed between an offer of dedication and an attempted
acceptance, the use of the dedicated property was inconsistent during that time period, and
ultimately the dedication was never accepted. Those cases are inapposite to the issue in the
present case of whether the dedications had lapsed prior to the Road Commission’s acceptance of
6
The Subdivision Control Act of 1967 is now referred to as the Land Division Act, 1996 PA
591.
7
“The 1978 amendment added § 255b to the Subdivision Control Act. Section 255b provides
that ten years after the date a plat is first recorded, land dedicated to the use of the public in a plat
shall be presumed to have been accepted unless rebutted by evidence establishing either ‘(a) That
the dedication, before the effective date of this act and before acceptance, was withdrawn by the
plat proprietor’ or ‘(b) That notice of the withdrawal of dedication is recorded’ within ten years
after the plat was first recorded and before acceptance of the dedicated lands.” Vivian, 433 Mich
at 513-514.
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the dedications. Accordingly, the trial court did not err in finding that there was no question of
fact that the acceptance of the dedications was timely.
C. ACCEPTANCE OF THE ENTIRE LENGTH OF WALNUT PLAISANCE AND LINCOLN
PARK BOULEVARD
The residents argue that because the 1937 McNitt resolution did not encompass the entire
length of Walnut Plaisance and Lincoln Park Boulevard, the portion of the roads that terminate at
the water’s edge could not be accepted into the county road system. In support of their
argument, they assert that the 1937 resolution referred to a shorter length of the roads than their
actual lengths.
Assuming that the 1937 McNitt resolution did, in fact, accept less than the entire portions
of Walnut Plaisance and Lincoln Park Boulevard, the residents have simply “assumed” that it
was the lake ends of these roads that were not accepted. In support of this assumption, they
highlight that none of Portage Lake Drive in the first, second, and fourth additions was accepted,
and that Portage Lake Drive was eventually abandoned in the 1956 resolution. They argue that
the Road Commission never intended to accept the portions of Walnut Plaisance and Lincoln
Park Boulevard that end at the lake. The Road Commission, on the other hand, principally relies
on the language in the 1956 resolution, which specifically provides that “all platted streets
leading to the shore of Lake Margrethe and coinciding with PORTAGE LAKE DRIVE (sic)
shall remain open public streets giving access in the manner shown in said Plats.”
Whether or not the McNitt resolution evidenced intent to accept the entire road or just the
specified portion is a factual question. See Christiansen, 239 Mich App at 387. In Christiansen,
the McNitt resolution specified a length of road 472 feet long, while the actual road length was
505 feet. Id. The plaintiffs argued that the 33-foot difference had never been accepted by the
resolution and therefore must be vacated. Id. This Court held that whether or not the McNitt
resolution evidenced intent to accept the entire road or just the specified portion was a factual
question. Id. at 387. This Court found that the trial court did not err in finding that the road
commission intended to accept the entire road length on the basis of a surveyor’s explanation
that it may have simply been an oversight, noting that the “record [was] devoid of any logical
explanation to explain the [approximately thirty-three foot] difference.” Id. at 388 (alterations in
original).
In this case, the trial court opined as follows, in relevant part:
This Court finds that when the 1937 McNitt resolution and the 1956
resolution are read in conjunction with each other, the language supports a finding
that even if the 1937 McNitt resolution did not intend to accept the entire portions
of the roads, it did intend to accept the lakeward portions. As in Christiansen, the
McNitt resolution does not contain any explanation for the lengths specified or
why the entire lengths were not listed. However, the 1956 resolution makes it
clear that the [Road Commission] wanted to ensure that public access to the Lake
was preserved on any platted street that ended at the Lake, and more importantly
to make it clear that the abandonment of Portage Lake Drive was not to affect
public access to the Lake over these roads. In the Court’s view the 1956
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resolution is directly contrary to the [the residents’] assertion that in not accepting
Portage Lake Drive in 1937, the Road Commission did not intend to accept roads
leading to or along the Lake. As above, the [residents] have failed to bring forth
any evidence to counter the plain language and intent of the 1956 resolution.
The trial court also found that because Portage Lake Park subdivision was platted as a
lakefront subdivision, development of the lake area and access to the lake was of primary
importance and, therefore, that it was reasonable to conclude that when the McNitt resolution
was adopted, the Road Commission’s primary concern would have been to address the portions
of the streets and alleys that were closest to the lake. The court found that, “[a]s stated in
Christiansen, no other logical explanation has been given for the discrepancies.”
The trial court concluded:
For purposes of this motion the Court finds that it does not need to
determine whether the 1937 McNitt resolution accepted the entire portions of the
roads at issue. The Court finds that based on the language in the 1956 resolution,
there was an intent by the [Road Commission] to accept at least the portions of
the roads that led to the shore of Lake Margrethe. To the extent that the 1937
McNitt resolution did not accept the entire portions of Walnut Plaisance and
Lincoln Park Blvd., the Court finds that it did accept the portions of those roads
that ended at Lake Margrethe or that coincided with Portage Lake Drive where it
ran along Lake Margrethe. The [residents] have failed to provide any evidence to
counter the plain language of the 1956 resolution or to provide evidence to
support any other explanation for the discrepancy in measurements.
As the trial court found, in light of the 1956 resolution, there was no question of fact with
respect to the Road Commission’s intent to accept at least the portions of the roads that lead to
the water’s edge. Accordingly, the trial court did not err in finding that there was no question of
fact that the Road Commission accepted the portions of Walnut Plaisance and Lincoln Park
Boulevard that intersect with Portage Lake Drive and the edge of the lake.
III. AMENDMENT OF COMPLAINT
The residents also argue that the trial court abused its discretion when it denied their
motion for leave to amend their amended counterclaim to include a claim for common-law
abandonment. Because the residents failed to file a proposed amendment in writing, we
disagree.
This Court reviews a trial court’s decision regarding a motion to amend the pleadings for
an abuse of discretion. Sanders v Perfecting Church, 303 Mich App 1, 8-9; 840 NW2d 401
(2013). A trial court abuses its discretion when its decision is outside the range of principled
outcomes. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
When the trial court grants summary disposition to a party “based on subrule (C)(8), (9),
or (10), the court shall give the parties an opportunity to amend their pleadings as provided by
MCR 2.118, unless the evidence then before the court shows that amendment would not be
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justified.” MCR 2.116(I)(5). “Amendments must be filed in writing . . . .” MCR 2.118(A)(4).
When a party makes an oral request to amend the complaint under MCR 2.116(I)(5), that party
must also offer a proposed amendment in writing. Lown v JJ Eaton Place, 235 Mich App 721,
726; 598 NW2d 633 (1999). Where a plaintiff fails to do so, the plaintiff has failed to comply
with the court rule and the trial court does not abuse its discretion in denying the request to
amend. Id.; see also Burse v Wayne Co Med Examiner, 151 Mich App 761, 768; 391 NW2d 479
(1986). Accordingly, because the residents failed to file a proposed amendment in writing, the
trial court did not abuse its discretion when it denied the residents’ motion to amend.
IV. APPLICABILITY OF MCL 221.22
The residents argue that the trial court also erred when it concluded that MCL 221.22 did
not apply to the property at issue in this case. We disagree.
Questions regarding the proper interpretation and application of a statute are reviewed de
novo. Spectrum Health Hosps v Farm Bureau Mut Ins Co, 492 Mich 503, 515; 821 NW2d 117
(2012).
Specifically, the residents argue that under MCL 221.22,8 the roads ceased to be public
roads because the Road Commission never opened or worked on Walnut Plaisance and Lincoln
Park Boulevard within four years after the dedications in the various plats. This precise issue
was addressed and decided in Rice, 346 Mich 658. The Court held in Rice that MCL 221.22 did
not apply to a road or street that was dedicated to the public on a recorded plat. Id. at 662-663.
As the trial court properly noted, Rice has not been overturned and there are no other published
decisions addressing the applicability of MCL 221.22 to roads dedicated in plats. The trial court
properly found that MCL 221.22 does not apply to the facts and issues in this case.
V. APPLICABILITY OF MCL 324.30111(b)
The residents argue that because Walnut Plaisance and Lincoln Park Boulevard as platted
in the fourth addition have never been improved or opened and are not available for vehicular
travel, the roads are not “lawfully open for public use” and not governed by MCL 324.30111b.
We disagree.
Questions regarding the proper interpretation and application of a statute are reviewed de
novo. Spectrum Health Hosps, 492 Mich at 515. This Court reviews de novo a trial court’s
decision on a motion for summary disposition. Latham, 480 Mich at 111.
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MCL 221.22 provides that “[e]very public highway already laid out, or hereafter to be laid out,
no part of which shall have been opened and worked within 4 years after the time of its being so
laid out, shall cease to be a road for any purpose whatever.”
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MCL 324.30111b provides:
(1) A public road end shall not be used for any of the following unless a
recorded deed, recorded easement, or other recorded dedication expressly
provides otherwise:
(a) Construction, installation, maintenance, or use of boat hoists or boat
anchorage devices.
(b) Mooring or docking of a vessel between 12 midnight and sunrise.
(c) Any activity that obstructs ingress to or egress from the inland lake or
stream.
(2) A public road end shall not be used for the construction, installation,
maintenance, or use of a dock or wharf other than a single seasonal public dock or
wharf that is authorized by the local unit of government, subject to any permit
required under this part. This subsection does not prohibit any use that is
expressly authorized by a recorded deed, recorded easement, or other recorded
dedication. This subsection does not permit any use that exceeds the uses
authorized by a recorded deed, recorded easement, other recorded dedication, or a
court order.
(3) A local unit of government may prohibit a use of a public road end if
that use violates this section.
(4) A person who violates subsection (1) or (2) is guilty of a misdemeanor
punishable by a fine of not more than $500.00. Each 24-hour period in which a
violation exists represents a separate violation of this section. A peace officer
may issue an appearance ticket as authorized by sections 9c to 9g of chapter IV of
the code of criminal procedure, 1927 PA 175, MCL 764.9c to 764.9g, to a person
who violates subsection (1) or (2).
(5) This section does not prohibit a person or agency from commencing a
civil action for conduct that violates this section.
(6) As used in this section:
(a) “Local unit of government” means a township, city, or village in which
the public road end is located.
(b) “Public road end” means the terminus at an inland lake or stream of a
road that is lawfully open for use by the public.
Despite the trial court’s thorough analysis of this issue, and the court’s rejection of the
residents’ argument, the residents did not raise this argument in their statement of questions
presented before this Court, nor did they address the trial court’s ruling on this issue in their brief
on appeal. Rather, in a reply brief, they simply announce, without any analysis of the issue, that
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“a review of the 4th Addition as a stand-alone Plat demonstrates that Walnut Plaisance and
Lincoln Park Blvd do not terminate at any body of water.” The residents have abandoned this
issue by failing to adequately brief it. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998); see also Thompson v Thompson, 261 Mich App 353, 356; 683 NW2d 250 (2004) (“An
appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.”).
The residents also argue that the trial court erred by finding that the subject roads were
lawfully open for use by the public because there was “no evidence presented that would
establish that [the] subject area was ever improved, maintained, or used by the general public.”
They contend that the test for determining whether a road is open for public travel for purposes
of the highway exception to governmental immunity should be applied in determining whether a
road is lawfully open for public use for purposes of MCL 324.30111b. Thus, they contend that
the proper test is “whether a reasonable motorist, under all the circumstances, would believe that
the road was open for travel.” The residents do not cite any authority in support of their
argument that the test applied for purposes of governmental immunity is applicable for purposes
of MCR 324.30111b.
The trial court properly noted that the only case to address the requirements of MCL
324.30111b in its current form is Colthurst v Bryan, unpublished per curiam opinion of the Court
of Appeals, issued June 14, 2016 (Docket No. 323539). In Colthurst, the plaintiff owned a lot on
Wamplers Lake next to a 50-foot long right-of-way called Elm Court, which ended at the
lakeshore. Colthurst, unpub op at 3. The plaintiff sought to enjoin the individual defendants’
use of Elm Court to moor their boats, erect docks, and install boat lifts, and to store these various
items. Id. The plaintiff argued that such uses exceeded the scope of the dedication in the plat
and were prohibited by statute. Id. at 3-4. The defendants argued that Elm Court was not a road
end as contemplated by MCL 324.30111b and that such activities were not prohibited. Id. at 4.
In part, the defendants argued that Elm Court was not a road end because it was not really a road
but merely a grassy area. Id. at 8. The trial court visited the area, and together with pictures and
other documentary evidence, concluded that there was no question of fact that Elm Court was a
public road end under the statute. Id. In affirming the trial court’s decision, this Court found
several factors that were important to the determination: (1) the plat clearly dedicated Elm Court
to “the use of the public”; (2) backlot owners had access to the lake through Elm Court; (3)
subdivision rules contemplated the use of Elm Court by the public to access the lake; and (4) the
fact that Elm Court was not an improved road but merely a grassy area of land was not relevant;
rather, it was the availability of the area for the public to use that controlled. Id.
In this case, the trial court found Colthurst persuasive due to the factual similarities
between the two cases. The trial court opined:
The [c]ourt has already ruled that they remain public roads under the jurisdiction
of the [Road Commission]. Here there is no question that backlot owners have
used the area where both Walnut Plaisance and Lincoln Park Blvd. end to access
Lake Margrethe. Here, both parties acknowledged on the record that members of
the public could travel down Lincoln Park Blvd. as it currently exists and access
the Lake. Finally, there are no questions of fact regarding the character of the
area where these roads end. [the residents’] Exhibits A and B show an aerial
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picture and a survey of the area. There is an obvious clearing and a turn-around
for vehicles, as well as a boat launch area. The turn-around in particular is within
the portion of Lincoln Park Blvd. that is contained in the 4th Addition plat. While
there are some trees in the area where Walnut Plaisance ends that would prevent
vehicular travel or the launching of watercraft, there is nothing that would
prohibit the public from walking in that area or accessing the water there. Even if
the rest of the length of Walnut Plaisance were found to be inaccessible by even
foot traffic, the end of Walnut Plaisance where it meets the Lake certainly is
accessible from Lincoln Park Blvd. Looking at all this evidence, this Court
concludes, as did the trial court in Colthurst, that there could not be “any other
way to look at this area as being other than the terminus of a public road at an
inland lake.” The [c]ourt finds that as a matter of law the road ends of Walnut
Plaisance and Lincoln Park Blvd., whether in the 1st, 2nd, or 4th Additions, are
lawfully open for the use of the public and are therefore public road ends for
purposes of MCL 324.30111b.
While an unpublished opinion of this Court lacks precedential value, the analysis in
Colthurst is factually similar, germane, instructive, and persuasive for the case at bar and we
adopt its reasoning. MCR 7.215(C)(1); Paris Meadows, LLC, v Kentwood, 287 Mich App 136,
145 n 3; 783 NW2d 133 (2010). Application of the analysis to the undisputed facts, as set forth
by the trial court, demonstrates that Walnut Plaisance and Lincoln Park Boulevard are open for
the use of the public as a matter of law.
VI. STANDING
Finally, the residents argue that Grayling does not have standing to bring this action for
determination of the scope of the dedications of the various plats. We disagree.
“The question whether a party has standing presents a question of law reviewed de novo
on appeal.” Tennine Corp v Boardwalk Commercial, LLC, 315 Mich App 1, 7; 888 NW2d 267
(2016). Questions regarding the proper interpretation and application of a statute are reviewed
de novo. Spectrum Health Hosps, 492 Mich at 515.
“The concept of standing represents a party’s interest in the outcome of litigation that
ensures sincere and vigorous advocacy.” House Speaker v Governor, 443 Mich 560, 572; 506
NW2d 190 (1993). A party must demonstrate more than just “a commitment to vigorous
advocacy.” Id. It must also show that it has a substantial interest that “will be detrimentally
affected in a manner different from the citizenry at large.” Id. (citation omitted). That is, the
plaintiff must demonstrate an actual injury or likely chance of immediate injury that is different
from that of the general public. Kuhn v Secretary of State, 228 Mich App 319, 333; 579 NW2d
101 (1998). The plaintiff’s suit is generally precluded if its interests are no different than those
of the public. Id.The residents have not cited any authority supporting their claim that Grayling lacks
standing to bring a claim to enforce the scope of an accepted dedication of land for roads for
public use. Grayling relies on the plain language of MCL 560.253(2) of the Land Division Act,
MCL 560.101 et seq., which states that “the land intended for the streets, alleys, commons, parks
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or other public uses as designated on the plat shall be held by the municipality in which the plat
is situated in trust to and for such uses and purposes.” Grayling argues that because it holds the
roads at issue in trust for the use of the public, it has a legal obligation to institute legal action to
protect the property held in trust for the benefit of the public. Grayling contends that Wayne Co
v Miller, 31 Mich 447, 448-449 (1875), “supports the statutory citation above.” In Miller, a strip
of land that was recorded as part of a plat was recorded under the act of 1839, which “provided
that a plat executed in accordance with its provisions should ‘vest the fee of such parcels of land
as are therein expressed, named or intended for public uses, in the county’ in which such lands
should lie.” Id. at 448. The Court, noting that “[i]t is not very clear what sort of title the act of
1839 designed to vest in the county,” stated, “[U]nquestionably the purpose was to vest in the
county such a title as would enable the public authorities to devote the lands to all the public uses
contemplated in making the plan, and to charge them with corresponding obligations when the
title should vest.” Id. at 449.
According to the plain language of MCL 560.253(2), Grayling has an obligation to
enforce the uses and purposes of the “land intended for the streets, alleys, commons, parks, and
other public uses as designated on the plats.” MCL 560.253(2). Therefore, Grayling was the
proper party to pursue a declaratory action concerning the scope of the dedications and to
challenge any uses outside the scope of the dedications of the roads at issue. Accordingly,
Grayling had standing to bring the action under MCL 560.253(2).
VII. GRAYLING’S RIGHT TO COMMENCE A CIVIL ACTION UNDER MCL
324.30111b(5)
The residents argue the trial court also erred because Grayling was not allowed to
commence a civil action as provided under MCL 324.30111b(5). We disagree.
Questions regarding the proper interpretation and application of a statute are reviewed de
novo. Spectrum Health Hosps, 492 Mich at 515.
Grayling had the right to commence a civil action under MCL 324.30111b(5) for conduct
that violated MCL 324.30111b. The residents sought a declaratory ruling as to whether MCL
324.30111b(5) grants townships a civil remedy or whether townships are limited to issuing
appearance tickets under MCL 324.30111b(4). After a hearing on the request, the trial court
treated the request “as a (C)(8) motion” because the request is “an argument that [Grayling] can’t
state a claim under the statute because the statute or any other authority doesn’t give it the ability
to do that.” The trial court opined as follows:
[I]t’s apparent to me that the sections of the statute are in there to accomplish
different things. Section 3, to me, is more about a local government’s ability to
control what does or doesn’t happen at the public road ends. In other words, to
set rules and guidelines and boundaries for what can and can’t happen at road
ends.
It gives local governments the ability to prohibit uses. The converse of
that, I think, is that it gives local governments the ability to issue permits for
certain uses at road ends. But it gives local governments the ability to regulate.
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Section 4 and Section 5, in my view, is more about enforcements. Section 4
allows for the potential for criminal penalties as a way to enforce, and Section 5
allows for civil remedies as a way to enforce. And so I think there is a distinction
between allowing local governments the authority to regulate and allowing for
enforcement. And so looking at it in that light, Section 5, to me, does not prohibit
a local government, such as a township, from using its civil action to enforce.
There’s nothing that expressly excludes it. It uses pretty broad language. A
person or agency, that’s pretty broad. That could mean many different types of
private and public entities and governmental entities.
So for those reasons, the [c]ourt finds that [Grayling] is not prohibited
under the plain language of the statute from bringing a civil action, as they have.
And so to the extent that this is a (C)(8) motion, the [c]ourt is going to deny the
request for declaratory relief, again, looking at is using a (C)(8) analysis.
MCL 324.30111b provides, in pertinent part, as follows:
(3) A local unit of government may prohibit a use of a public road end if
that use violates this section.
(4) A person who violates subsection (1) or (2) is guilty of a misdemeanor
punishable by a fine of not more than $500.00. Each 24-hour period in which a
violation exists represents a separate violation of this section. A peace officer
may issue an appearance ticket as authorized by sections 9c to 9g of chapter IV of
the code of criminal procedure, 1927 PA 175, MCL 764.9c to 764.9g, to a person
who violates subsection (1) or (2).
(5) This section does not prohibit a person or agency from commencing a
civil action for conduct that violates this section.
The residents’ sole argument is that under the plain language of the statute, Grayling is
not a “person or agency” and that it therefore cannot commence a civil action for conduct that
violates MCL 324.30111b. This argument fails.
MCL 324.30111b(3) clearly gives a local unit of government, which includes townships,
MCL 324.30111b(6), authority to prohibit a use of a public road end if that use violates MCL
324.30111b. MCL 324.30111b(4) provides that “[a] peace officer may issue an appearance
ticket as authorized by sections 9c to 9g of chapter IV of the code of criminal procedure” to a
person who violates subsection (1) or (2). MCL 324.30111b(5) provides, “This section does not
prohibit a person or agency from commencing a civil action for conduct that violates this
section.” Nowhere does subsection 5 indicate that an entity is prohibited from bringing a civil
action in reliance on the statute, or that the relief is limited to a select class of plaintiffs. Under a
plain reading of the statute, Klooster v City of Charlevoix, 488 Mich 289, 295; 488 Mich 289(2011), subsection 5 does not prohibit a local unit of government from commencing a civil
action. Rather, subsection 5 appears to clarify that civil actions are not limited to those local
units of government who have authority to prohibit a use of a public road end if that use violates
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MCL 324.30111b. Grayling had a right to commence its civil action under MCL 324.30111b(5)
for conduct that violated MCL 324.30111b.
Affirmed.
/s/ Thomas C. Cameron
/s/ Colleen A. O’Brien
/s/ Karen M. Fort Hood
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