*1
v SHELL OIL COMPANY
VILLAGE OF KALKASKA
REMAND)
(AFTER
2).
(Calendar
Argued
No. Decided
Docket
81915.
December
No.
11, 1989.
September
Petroleum, Ltd.,
Village
County
and
The
and
of Kalkaska
MGM
against
brought
the
Circuit Court
the
an action in
Kalkaska
proprietary
Company, seeking a
of
Shell Oil
determination
alleys
gas
lying
oil
streets and
of the
interests
and
abutting platted
village.
lots
Owners of
joined
drilling
village were
within two
units within the
defendants,
Michigan
joined as a defen-
and the State of
also
Porter, J.,
court,
granted
judg-
summary
A.
dant. The
William
complaint, stating
the
ment for
defendants and dismissed the
Legislature
recording
did not
that the
that the
intend
subject plats
PA
and 1887
1859 PA
roadways
conveyance
the
PA 309 would
constitute
absolute, but, rather,
municipality
that
con-
in fee
fee,
subsequent
subject
veyance
to the
base
condition
roadways
they
or the fee
terminate. The
be used as
would
Burns, P.J.,
Appeals,
of
and Maher and
F. D.
Brouil-
(Docket
JJ.,
per
opinion
in an
No.
lette,
affirmed
curiam
87230).
Supreme
The
Court remanded
case to
Court of
light
Eyde
Development
Appeals
of
for
Bros
reconsideration
(1986).
remand,
Comm’r,
Eaton Co
sufficient village use in the in trust for the purposes designated village and no did others. not assert a mineral, oil, rights claim to incident placement utilities structures. While mineral *2 might appropriate necessary extraction be to the extent place improvements property, appropri- in or on it is not marketing. purpose ate where the extraction is for the village county proprietary and have no interest in oil lying gas and and beneath dedicated under acts for use. joined by Boyle, concurring, Riley, Chief Justice Justice specific plats stated that the dedication could reasonably interpreted gas to have transferred oil and streets, platted beneath the but evidences intention to convey an easement to effectuate the limited for which the enacted. Affirmed. (1987) App 534; NW2d affirmed. J. Thomas Jewett and Thomas L. for Moore plaintiff Petroleum, MGM Ltd. Gregory plaintiffs Village
William S. of Kal- County kaska and of Kalkaska. Kelley, Attorney General,
Frank J. J. Louis Caruso, General, Solicitor and Richard R. Roesch Attorneys Prins, General, E. and Russell Assistant Michigan. for the State of Litzenburger, Marco, Smith, Erhart, & Brown Smith), (by Wayne P.C. Richard for defendant abutting landowners. Meyers, (by Mika, Beckett A. & Jones Mark
Kehoe) Company. for defendant Shell Oil Amicus Curiae: Gotting Parsley,
Loomis, Ewert, Ederer, Davis & (by Rodger Neal, Ederer, James R. T. and John O. Juroszek) Standing on Committee Oil Michigan. Bar of Law of the State Gas question presented is whether J. The Levin, propri- of Kalkaska obtained gas lying etary beneath the in oil and designated, plats re- that was surface land use corded streets and the Court agree judge alleys. circuit with the We proprietary Appeals inter- village conveyed to the est in oil and county recorded, and that were when village the oil not sell the lying the land. the surface of i Company explored for and Defendant *3 eighty-acre apparently oil or in two discovered plaintiff Village drilling of Kalkaska. units within drilling plain- developed units, Shell had After tiff MGM Petroleum, Ltd., from Kalkaska leased gas lying in oil and an interest village.1 alleys The against action Shell to this Kalkaska commenced of lots in land.2 The owners determine interests abutting platted ing drill- within the joined The State of
units were defendants. claiming Michigan joined defendant, fee also platted roadways rights under to mineral title respecting adjacent platted the state lots fee to minerals. had reserved title drilling units, are, three re- There within plats, Addition, 1876, in Sweet’s recorded corded challenged by validity the defen this several of lease pertinent appeal. to this for reasons dants (now 3.411); 600.2932; MSA 27A.2932. MCL MCR GCR (After Rem) v Shell Oil Addition,
Sweet’s Second recorded in Addition, Phelp’s recorded in 1918.3 The plat provided acts that a subdivision or map plat recorded in compliance with the acts "shall be deemed a sufficient conveyance to vest the fee of parcels of land as be therein designated in the city village or within the incorporate limits of which the land platted is included township parcel where the [or not within incorporated city village] in trust to and for the uses and purposes desig- therein nated, and for no other use or whatever.”4
The circuit
judge granted summary judgment
favor of the defendants
and dismissed plaintiffs’
complaint,5 stating that
"the Legislature
did not
intend that
the recordation
of the subject plats
would constitute
a conveyance to the municipality
roadways
fee
.
. .”
absolute
.
He
said that
the "statutory
conveyance referred to is
”6
the conveyance
fee,’
of a
i.e.,
’base
the fee was
dedicatory language
There is no
on the face of Sweet’s Addition or
purposes
appeal,
Sweet’s Second Addition. For the
of this
the defen
assume, arguendo,
properly
dants
that all the
were
made and
recorded
to the statutes.
plat acts,
4
Men’s Christian Ass’n of NW op Opinion the Court subject quent” "qualification subse- or a condition to the alley continued be the "street or be
that and, such, not, "the fee if it were used” municipality would terminate.” judge by the said that providing conveyance in trust to and that the plat, purposes designated in the and for the nature and extent of the interest Legislature to limit the evidenced "intent
of the trustee reasonably municipality sufficient to what was responsibility.” He the the continued that exercise its Legislature say additionally to that
"went on purposes use or fee was to be used for than those other designated, He concluded whatsoever.” Legislature the trustee that intended to limit property municipality to the "to utilization purposes and uses extent designated effect reasonably anything necessar- ily incidental thereto.” plain- judge extent, added "to the prove can and oil and/or
tiffs deposits other mineral were of a reasonable statute, (1899)] probably by the was used in the said was meant qualification annexed to it. sense Bouvier’s a fee which has a (Rawle’s Dictionary rev), p 3d 329. Law of "base fee” are Other definitions property possibility An estate real has enduring may put to an forever but which determined conveyance by the aid of some act or event end without circumscribing Law its continuance extent. [Ballentine’s (3d ed), p Dictionary 125.] contingency hap- does One that last forever if the pen, depends upon but debased because its duration collateral conditional, it; qualify circumstances which determinable, sometimes called qualified fee. law, qualification English In old or fee which has a estate thereto, subjoined and which must be determined whenever the Dictionary qualification annexed to at an end. Law it is [Black’s (5th ed), p 137. Citations omitted.] *5 Rem) (After 353 Kalkaska v Oil practical utility for the use or maintenance of a property street or alley, taking of by may same the defendants be actionable to such circuit length extent.” The at judge reviewed case law and concluded that summary judgment dismissing complaint plaintiffs’ should be entered the defendants. for of Appeals, affirming, Court adopted the of the circuit
opinion judge.7 This remanded the case Appeals Court of reconsidera- Eyde Bros Co Eaton of Development v light tion Comm’r, Drain Co 271; 427 Mich 398 297 NW2d (1986).8 remand, On the Court of re- Appeals affirmed, stating did it believe earlier Bros, Eyde decision was inconsistent with public held "a easement dedi- highway a travel, by cated user limited to surface but uses, includes those such as the installation of sewers, contemplated be in said, benefit.”9 The Court agree: we of Kalkaska did not assert a claim oil, mineral, gas rights
to the
placement
incident
to the
utilities
thereon.
structures
Even had such a claim been
made, it would not
merit
have
under the facts of
this
appro-
case. While mineral extraction
priate to the extent necessary
place improve-
(see
property
ments in or on the
v
Cleveland
[1949]),
Detroit,
527;
324 Mich
Kalkaska relies on Des Moines (1868), Belgum Kimball, 163 v Neb 237 (1957), 774, 782; 81 which held that NW2d 205 alleys dedicated in a minerals under streets and statutory plat belong municipality. the provided that the Iowa recording statutes and Nebraska "equivalent plat a deed in ” apart portion fee of of the land set "public use.” or other statutes as Other courts have construed similar "only conveying so much of the the surface and necessary for street construction subsurface as is municipal city services,” and that "ac- quired underlying oil, or other minerals result of the recording acknowledgment of subdivision
10
accompanying
See
text.
n and
of
has been to vest
effect
a dedication under
statute
municipality
county, in
for the
intended to
the
be
in the
trust
fee
benefited, whereas,
law,
dedication
at common
of
only
public, [Village of
v
Grandville
created
easement
54, 65;
Jenison,
(1890).]
Kalkaska’s reliance on
v
(1872),
Collins,
Mich 514
and Bissell v
Mich 277
(1873), misplaced.
Cuming, gravel
In
found in
alley
alley.
the whole
distributed over
As
Cuming "recognized
right
Bissell,
stated in
city
gravel
to make use of the
found within the
alley
improving
part
any
limits of the
But,
of it.”13
Cuming,
right
city
as stated
had no
gravel
sale,
take the
"for
unless
plaintiff
using
disposing
had assented to”
or
of it
Cuming
recognized
right
in that manner.14
also
Co,
248, 251;
Mining
See also Leadville v Bohn
P
37 Colo
86 1038
"
(1906),
parks,
avenues, streets,
provided,
alleys,
where the statute
and other
'[a]ll
places designated
or described as for
use on
map
town,
any city
or
or of
addition made to such
town,
city
public property,
shall be deemed to be
and the fee
”
Mallory Taggart,
thereof be vested in such
2d
maps
the
lanes,
or town.’
24 Utah
267, 269;
provided:
soil, city right would have had an undoubted to use the grading any city. same in did not desire that or In other street case it purpose, it for such and the owner of the gas-pipes, water-pipes "to sink Id., pp 523-524. like purposes.” to use it for Co Land v Grand Central on reliance Kalkaska’s (1942), is also 105; 4 Rapids, NW2d conveyed City Land been misplaced. had it used on deed condition Rapids by Grand This absolute park was purposes. for street and subsequent that would aon condition conveyance if the land were used take effect conveyance and not a conveyed purposes for oil ruled that to a act. The was not a violation production park lands subsequent it of the condition because park purposes: for street and inconsistent with use extraordinary rather Defendants have taken operating park oil wells on care property so materially does not activity this purposes for impair use of the land for the [Id., city. p it conveyed which was 110.] park any property nor Neither whole portion being any used in thereof is substantial way any purpose which in substantial degree which the interferes with the uses for [Id., city. p property conveyed 113.] Miller, Co v Wayne In attempted to lands dedicated recover claim, the Court rejecting county’s
a street.
In
that existed [in
said,
very
"It
clear
not,
property
city
doing,
did
then the
from in front of which it was taken
it,
might,
right
in so
would have a clear
remove
ánd
dispose
any way
proper.
it
sell or
of it
considered
[Emphasis added.]
*8
(After Rem)
357
v
give
to
title in
a
the nature of
plat
the 1839
act]15
private ownership.”16
Bay
added.)
Co
(Emphasis
In
Bradley,
(1878),
166
the Court held
that
county
ejectment
could not
maintain
action
to
respect
land dedicated
to
public
the 1839
use and
that
observed
"acquires
ownership
no beneñcial
the county
land”;
"the law vests it with
title”;
nominal
grant
cannot
dispose
otherwise
"[i]t
added.)
In Backus v
premises
. . . .” (Emphasis
Detroit,
49
115;
Mich
passed the fee in
upon
all streets marked
it to the
county
which the
Comp
is situated:
L
1345; but
only
pur
this was
in trust
for street
§
poses.
special
We
importance
attach no
fact
passed
that
the title
instead of a mere easement.
purpose
is not
give
statute
rights
county
proprietor,
the usual
of a
but
preclude questions
might
respecting
which
arise
uses,
other than
passage,
those mere
devoted.[18]
might
to which the
[Emphasis
land
added.]_
15
The text
Albers’ Petition, 640; (Emphasis NW 1110 *9 by Opinion Riley, C.J. conclude, review of statements
We years, analyses Court over of this pro- Kalkaska have sell, prietary lying in, oil and pub- dedicated beneath pursuant 1887 and acts of lic use years. earlier
Affirmed. JJ., Griffin, Cavanagh, Archer,
Brickley, Levin, J. concurred with (concurring). I with the result concur C.J. Riley, persuaded by I am because Justice Levin reached that to the various dedication reasonably inter- cannot involved herein acts preted oil and to have transferred platted streets. specific
I believe convey an easement intention to evidences an the limited to effectuate was enacted. holding today Finally, con- that our I believe Michigan prior case law. sistent with Boyle, J., C.J. Riley, concurred