163 N.W.2d 227 | Mich. Ct. App. | 1968
VANDER MEER
v.
OTTAWA COUNTY.
Michigan Court of Appeals.
James W. Bussard, and McCobb & Heaney, for plaintiffs.
Scholten & Fant, for defendant Spring Lake Township.
*495 J.H. GILLIS, J.
This action arises on a petition to vacate a platted road,[1] part of Blandford and Gilleland's Plat in Spring Lake township, Ottawa county, Michigan.
The road, Lake Beach drive, is an unimproved public right-of-way which, so far as is relevant here, runs in an east-west direction along the south shore of Spring Lake. Physically the road is partially covered by grass and shrubbery although it is passable and in fact so used. Lake Beach drive is separated from the lake on the north side of the road
Blandford and Gilleland's Plat
*496 only by a number of small (10-foot-wide) boat lots. On the other side of the platted road are larger residential lots, the owners of which are the petitioners herein. Although some of these residential lots are only accessible over Lake Beach drive, all the owners of land so situated were joined in the vacation petition.
The present petition deals with that section of Lake Beach drive located between the easterly line of Franklin avenue and the easterly line of Blandford avenue. Franklin, Ottawa and Blandford avenues form the only access to Lake Beach drive and the lake lots at this section of the plat. An attempt by the public authorities to improve and grade the northern ends of Blandford and Ottawa avenues at their intersection with Lake Beach drive is the subject of a companion lawsuit and appeal. See Ackerman v. Spring Lake Township (1968), 12 Mich. App. 498, post.
Owners of the boat lots objected to the proposed vacation on the ground that the only access to their lots was by means of Lake Beach drive. The trial judge found such objections to be reasonable[2] and denied the petition. This appeal challenges that ruling.
Findings of the trial court indicate that no public acceptance of Lake Beach drive had occurred either by formal resolution or public user. See West Michigan Park Association v. Department of Conservation (1966), 2 Mich. App. 254. The objections therefore are by private owners protecting their own private rights under the recorded plat, including Spring Lake Township which has acquired ownership *497 of a number of the boat lots and has filed a brief in this matter as appellee.
We agree with the findings of the trial judge that reasonable objections to vacation were presented. The record established that boat lot owners made regular, albeit seasonal, use of the platted road. Travel over the road is by car and foot and at the beginning and end of the season boats, trailers, and often docks are transported by these owners over the road in question.
The test of whether an objection to vacation of a portion of a recorded plat is reasonable is not capable of precise answer. In Westveer v. Ainsworth (1937), 279 Mich. 580, 585, the Supreme Court stated:
"It is reasonable objection to vacation of the plat that it is proposed to take from the lot owners the conditions they prize as advantages and for which they have paid."
We are constrained to agree that access to one's property as it existed under a recorded plat at the time of purchase forms the basis of a reasonable objection to impairment of that access by vacation. The offer of easement by petitioners hardly persuades us otherwise, for if the rights under the easement would be as great as those under the plat, we sincerely doubt whether we would have had a lawsuit here.
We find no error in the action taken by the trial court in denying the petition.
Affirmed. Costs to appellees.
HOLBROOK, P.J., and BURNS, J., concurred.
NOTES
[1] CL 1948, § 560.59 et seq. as amended (Stat Ann 1953 Rev and Cum Supp § 26.489 et seq.). More recently these sections were repealed and essentially reenacted as part of the subdivision control act of 1967, PA 1967, No 288 (Stat Ann 1968 Cum Supp § 26.430 [101] et seq.).
[2] CL 1948, § 560.62 as amended by PA 1958, No 101 (Stat Ann 1965 Cum Supp § 26.492) as existing at the time of this lawsuit. This section has more recently been repealed by the subdivision control act of 1967, supra, footnote 1.