Opinion
Docket No. 10053.
Decided May 20, 1971, 33 Mich. App. 634. Decided January 24, 1972. Leave to appeal granted and case remanded to Court of Appeals for reconsideration September 30, 1971. Leave to appeal granted, 387 Mich. 770.
Appeal from Ottawa, Raymond L. Smith, J. Submitted Division 3 April 2, 1971, at Grand Rapids. (Docket No. 10053.) Decided May 20, 1971, 33 Mich. App. 634. Leave to appeal granted and case remanded to Court of Appeals for reconsideration September 30, 1971. 386 Mich. 754. Decided January 24, 1972. Leave to appeal granted, 387 Mich. 770.
Complaint by Grand Haven Township against the City of Grand Haven for an injunction to prevent the defendant from annexing a parcel of land in Grand Haven Township. Summary judgment for defendant. Plaintiff appealed. Affirmed. Plaintiff appealed to the Supreme Court. Remanded for reconsideration. Previous decision of the Court of Appeals affirmed.
James W. Bussard ( Bauckham, Reed Lang, of counsel), for plaintiff.
Scholten Fant (by R. Neal Stanton), for defendant.
This case was remanded to us by order of the Supreme Court without opinion for our reconsideration in light of Township of Owosso v. City of Owosso, 385 Mich. 587 (1971).
We read the order of remand to mean that if we find Owosso controls, we are obligated to reverse ourselves and the trial court and direct the entry of an order denying annexation.
We read it to mean also that if an issue pleaded or unpleaded is essential to decision and has not been passed upon, we must remand with directions to the court requiring joining of that issue and making disposition thereof.
We think a third option is available to us. If, on reconsideration, we find Owosso does not control, we may distinguish it so that any apparent conflict between our holding here and that of the Supreme Court in Owosso be eliminated.
We have addressed ourselves assiduously to the record in this case. We have studied Owosso with care. We have reconsidered our own holding. We think Owosso is clearly distinguishable for the following reasons: First, the opening statement in Owosso by the Supreme Court is (p 588):
"This case involves the construction of the judicial requirement of `contiguity' in municipal annexation."
In the case at bar, the following excerpt from the order granting summary judgment appears:
"And the parties by their respective counsel of record having stipulated to the following facts as having existed at the time of the annexation: * * * the lands annexed * * * were owned by and adjacent to the Defendant; * * *." (Emphasis supplied.)
Owosso makes clear, p 591, that "adjacent" and "contiguous" may be, and are, used interchangeably. Thus, the issue of contiguity was stipulated out of this case. The stipulation having been received and approved by the trial judge, "contiguity" was not justiciable. The stipulation could have been rejected by the trial judge in the first place, of course, but having been accepted and the litigation having proceeded upon that acceptance, the stipulation of fact became sacrosanct and the trial judge was powerless to make a finding to the contrary.
"To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time-consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them." Dana Corp v. Employment Security Commission, 371 Mich. 107, 110 (1963). (Emphasis supplied.)
Hence, what the Supreme Court said was involved in Owosso is not involved here.
Second, this case was not the annexation of land owned by the plaintiff township and a part of its governmental territory. The defendant City of Grand Haven already owned it and was operating an airpark on it. Manifestly, this was not a city gobbling up territory of a township. The admitted hodgepodge boundary lines of the park did not come about by design in any effort to gerrymander and disenfranchise voters. The boundaries are explicable by the fact that the city bought the property involved parcel by parcel as it became available on the public market.
Third, disenfranchisement or gerrymandering could not possibly be involved here because the stipulation hereinbefore mentioned also recited "no person or persons resided thereon [the annexed property]".
The only pleaded issue in the case was whether the property was or was not "vacant", within the meaning of the statute. MCLA 117.9; MSA 5.2088. The trial judge held it was not. Then, however, he found as a matter of fact, clearly and unequivocally, that it was a "park", as that term is used in the statute. We quote:
"The court based its opinion and judgment on its finding that the property was a park."
The statute was pleaded affirmatively. The court made a finding thereunder. The statute makes annexation permissible if the involved property is "vacant" or a "park".
We believe we have already shown the judicial imposition of the requirement of "contiguity" is not here involved.
Hence, we hold that Owosso is inapposite. For the reasons herein set forth, we affirm our previous decision.
33 Mich. App. 634 (1971).