Jaschuk v. Manistee County Road Commission

205 Mich. App. 322 (1994) 517 N.W.2d 318

JASCHUK
v.
MANISTEE COUNTY ROAD COMMISSION

Docket No. 144514.

Michigan Court of Appeals.

Submitted December 16, 1993, at Grand Rapids. Decided May 16, 1994, at 9:45 A.M.

Varnum, Riddering, Schmidt & Howlett (by Matthew D. Zimmerman and Scott T. Rickman), for the defendant.

Before: NEFF, P.J., and WEAVER and K.B. GLASER,^[*] JJ.

WEAVER, J.

Plaintiffs, Nicholas and Sophia Jaschuk, are the owners of certain property in Manistee County that is bordered on the south by a county road. Defendant obtained jurisdiction over this road sometime before March 30, 1933, through the highway-by-user statute, MCL 221.20; MSA 9.21. Plaintiffs brought suit because defendant was widening the road, primarily through snow removal. Plaintiffs claimed this widening created a trespass and requested an injunction to halt defendant's actions. Defendant denied that it was trespassing, claiming that MCL 221.20; MSA 9.21 gave it a two-rod, or thirty-three-foot, easement on each side of the center line of the road.

The trial court determined that the statute's rebuttable presumption of a four-rod-wide road could constitute an unconstitutional taking of property, relying on Eager v State Hwy Comm'r, 376 Mich. 148; 136 NW2d 16 (1965). Accordingly, the court held the statute creates a dedication of an easement that extends only to the actual use to which the road is being put, rather than to the full four rods as is set forth in the statute. Following an evidentiary hearing to determine the actual use of the road, the court entered a judgment establishing the width of the road at sixteen feet.

Defendant now appeals as of right, arguing that the highway-by-user statute creates a statutory presumption that a public road established by user is four rods (sixty-six feet) wide.^[1]

MCL 221.20; MSA 9.21 reads as follows:

All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines.

In 1965, our Supreme Court addressed the highway-by-user statute, then 1948 CL 221.20, and ruled that

privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of Constitution of 1850, art 18, § 14, Constitution 1908, art 13, § 1, which prohibited taking by the public of private property except upon determination of necessity and just compensation "being first made or secured." [Eager, supra, p 154.]

The Court ruled that an implied dedication under the statute applies only to the extent of the use. Following this law as set forth by our Supreme Court, we affirm the judgment of the trial court.

Appellant argues that we should instead follow Eyde Bros v Eaton Co Drain Comm'r, 427 Mich. 271, 297-298; 398 NW2d 297 (1986), which stated: "When highway easements are established by user, they are as wide as the extent of the user, and as § 20 of the general highway law states, are presumed to be four rods or sixty-six feet wide...." In Eyde, however, the Supreme Court was not specifically addressing the validity of this portion of the highway-by-user statute. The Court was considering what would be a sufficient showing of possession and control to rebut the statutory presumption.

Thus, the Court's pronouncement as quoted above was dicta, and we do not construe it as overruling the precedent set by Eager, supra. The Supreme Court does not favor abandonment of its prior decisions by implication. People v Stoeckl, 347 Mich. 1, 16; 78 NW2d 640 (1956).

We affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Defendant also raises the issue whether sufficient evidence was introduced at trial to rebut the statutory presumption that the public road in question is four rods wide. However, this issue is rendered moot by our disposition of the first question.