TOWNSHIP OF GRAYLING v. ALAN BERRY AND LOUIS SCARPINO
No. 344297
STATE OF MICHIGAN COURT OF APPEALS
July 23, 2019
If this оpinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
TOWNSHIP OF GRAYLING,
Plaintiff/Third-Party Defendant-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
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.
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.
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,
The original plat was recorded as shown:
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,
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 thе 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
II. ACCEPTANCE OF DEDICATIONS
The residents first argue that the Road Commission did not accept the dedications of Walnut Plaisance and Lincоln 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).
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 arеas 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
In Rice v. Clare Co. Rd. Comm, 346 Mich 658, 664; 78 NW2d 651 (1956), the county road commission adopted a resolution
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
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 sеt 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 residеnts 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 bе considered as
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-yеar 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 II), 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
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 Portagе 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 thе 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 languаge 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
resolution is directly contrary to the [the residents’] assertion that in not accepting Portage Lake Drive in 1937, thе 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 discrеpancies.”
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 resоlution 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. Becаuse 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).
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
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
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
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.
(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 to764.9g , 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 conduсt 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
“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
The trial court properly noted that the only case to address the requirements
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
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 аs 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
While an unpublished opinion of this Court lacks precedential value, the analysis
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
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 wаs 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
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
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
[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.
Section 4 and Section 5, in my view, is more abоut 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 hаve. 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.
(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 to764.9g , 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
Affirmed.
/s/ Thomas C. Cameron
/s/ Colleen A. O’Brien
/s/ Karen M. Fort Hood