Opinion
Case No: 00-CV-10230-BC.
June 8, 2003.
OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
The plaintiffs own land in Tuscola County, Michigan that is in close proximity to Saginaw Bay. They filed this action in June 2000 alleging that the governmental defendants were attempting to take a portion of their property in order to make a public road that would provide access to adjoining State land. The complaint has since been revised and amended, and the Revised Second Amended Complaint now states claims based on 42 U.S.C. § 1983 and the Fourth, Fifth, and Fourteenth Amendments, and related state law claims. One defendant, the Tuscola County Road Commission, has responded to the plaintiffs' allegations with the claim that there can be no taking because the portion of the plaintiffs' property at issue is in fact a public road, resulting from the historical use of that land and Michigan's highway-by-user statute, Mich. Comp. Laws § 221.20. The plaintiffs reply that the factual predicate for establishing a highway-by-user is lacking, and further that if any road right-of-way existed, the Road Commission has abandoned it by formal resolution. The parties filed cross motions for summary judgment, and defendant Michigan Department of Natural Resources (DNR) filed a brief in support of the Road Commission's motion. The Court heard oral argument on December 16, 2002, after which an order was entered directing the parties to file the complete transcripts of certain depositions which had been excerpted and appended to the motion papers. The Court has now reviewed those items and the matter is ready for decision. The Court finds that the record does not support the plaintiffs' contention that the Road Commission formally abandoned the road right-of-way, and therefore the plaintiffs' motion for summary judgment will be denied. However, there are material fact questions which preclude summary judgment on the Road Commission's claim that a highway-by-user was established on the property, which must be resolved by a fact finder at trial.
I.
The plaintiffs refer to the disputed land in their pleadings as "Parcel A," which is located at the intersections of Garner and Oakhurst Roads in Wisner Township, Tuscola County, Michigan. Parcel A is described as follows:
Commencing at the Northwest Corner of the Southwest Quarter of the Southwest Quarter of Section 1, Town 14 North, Range 7 East; thence South to the Northern edge of the intersection of Garner and Oakhurst Road, then Easy 33 feet, thence North to the Northern most point of the Southwest Quarter of the Southwest Quarter of Section 1, thence West 33 feed to the point of beginning.
The defendants claim that this land is a public road and that it extends over Parcel A and beyond to land owned by the State of Michigan and to the waters of Saginaw Bay. As such, the plaintiffs cannot prohibit members of the public from entering Parcel A to access the road.
The dispute over the land emerged in the Fall of 1999 when Lyle Houthoofd and James McFarlane, defendants in this case before the complaint was amended, entered Parcel A allegedly to examine the property as a potential road site. There is no discernable roadway presently on Parcel A. The plaintiffs state that Lyle Houthoofd and McFarlene refused to leave Parcel A at the plaintiffs' request. Several weeks later, Lyle Houthoofd and former defendant Myron D. Gainforth allegedly came to the plaintiffs' house, stated that the plaintiffs had no right to keep Lyle Houthoofd and Gainforth off Parcel A, and threatened plaintiff Terry Houthoofd with bodily injury. Threatening and disparaging remarks allegedly continued until plaintiff Terry Houthoofd threatened to call the police. At that point, Lyle Houthoofd and Gainforth allegedly retreated to their vehicle, yelled that "they'd show him," drove onto Parcel A, and remained there about thirty minutes.
Several days later, defendant Haines, a DNR employee, allegedly came to the plaintiffs' house and asked why they refused to allow hunters to cross Parcel A to reach the adjacent state-owned property. Plaintiff Terry Houthoofd explained that once a hunter shot at his house while his teenage son was home alone and on other occasions rabbits and squirrels were shot and left on his property. Haines returned after allegedly consulting with Brian Schrope, attorney for the Tuscola County Road Commission, and told plaintiff Terry Houthoofd that he should not interfere with the public's use of Parcel A because it is a road right-of-way. The Road Commission denies that Mr. Schrope advised Haines that Haines and others could enter Parcel A. The plaintiffs state in their pleadings that plaintiff Terry Houthoofd
contacted the Road Commission's attorney, Brian Schrope, who confirmed that a decision was made allowing Defendant Haines and others to enter upon Parcel A. Mr. Schrope said the decision was based on his `gut feeling' that Parcel A was part of a `section line road'. Mr. Schrope also said the portion of road encompassing Parcel A was `nothing but trouble' and `should be abandoned'.
Revised Second Amended Compl., ¶ 32.
For the next few weeks, Lyle Houthoofd, Haines, and Gainforth entered Parcel A and remained there for long periods of time. The plaintiffs called the Michigan State Police and Tuscola County Sheriff's Department but they failed to respond because defendant Haines allegedly instructed them not to respond.
The Tuscola County Road Commission previously held a meeting on April 2, 1998 and adopted the following resolution concerning the "road" on Parcel A:
WHEREAS, it is the opinion of the Board of County Road Commissioners that a portion of Garner Road is of no further use as a public road or street.
NOW THEREFORE BE IT RESOLVED, that a portion of Garner Road from Allen Road north, between Sections 1 and 2, T14N-R7E, Wisner Township, Tuscola County, Michigan, be totally and permanently abandoned and discontinued as a public road or street.
BE IT FURTHER RESOLVED, that a meeting of the Board of Tuscola County Road Commissioners be held at the intersection of Garner Road and Allen Road at 1:30 P.M., Thursday, May 14, 1998 for the purpose of hearing any objections to said abandonment.
Pl.s' Mot. S. J., Ex. 2. The pleadings do not indicate if any objections were raised at the May 14, 1998 hearing. This resolution presupposes that Parcel A was a "public road or street" prior to May 14, 1998, which is in dispute.
On August 6, 1998, the Road Commission held another meeting, at which it resolved:
WHEREAS, Garner Road from a point 1140 feet north of Allen Road to a point 1380 feet north of Allen Road, a certified county road, is no longer being maintained by the Tuscola County Road Commission, and
WHEREAS, the above mentioned northerly portion of Garner Road is no longer open for vehicle traffic and does not qualify as a public roadway as described in Act 51 of 1951, and
WHEREAS, to remove roads that are certified and no longer maintained by this Road Commission a determination is needed,
NOW THEREFORE BE IT RESOLVED, that Garner Road from a point 1140 feet north of Allen Road to a point 1380 feet north of Allen Road, a distance of 240 feet, be removed from the certified local road mileage effective immediately, and
WHEREAS, for clarification purposes, it is the intent of this resolution to only decertify the above-mentioned portion of Garner Road and not to abandon the statute and platted right of way.
Def.'s Mot. S. J., Ex. G.
In late April or early May 2000, a surveyor for the Road Commission entered Parcel A to survey the parcel. In June 2000, two employees of the DNR entered Parcel A. They allegedly told plaintiff Terry Houthoofd they were permitted to be there because Parcel A was a road right-of-way and they were planning to build a road across Parcel A and a parking lot. Another former defendant, Jimmie L. Mead, circulated and filed a petition declaring to the public that Parcel A is part of "platted and statute road right of way" and requesting that the Tuscola County Road Commission abandon Parcel A. The Road Commission published a Notice of Abandonment and scheduled a hearing for June 22, 2000 to determine the advisability of abandoning and discontinuing the property. The plaintiff then filed a complaint and an ex parte motion for a temporary restraining order on June 21, 2000. This Court's predecessor, the Honorable Victoria A. Roberts, granted the temporary restraining order on the same day.
On August 14, 2000, Judge Roberts issued an opinion and order granting the plaintiffs' motion for a preliminary injunction. The order restrains the "Tuscola County Road Commission from abandoning, discontinuing, vacating, transferring or conveying any alleged road right of way over the property" in question. In the order, Judge Roberts determined that the plaintiff had established a strong likelihood of success on the merits.
The motion practice engaged in by the parties thereafter is somewhat confusing. The Road Commission responded to the complaint with a motion to dismiss, and on January 7, 2002, this Court issued an opinion and order denying the Road Commission's motion. Meanwhile, the plaintiffs had filed a motion for summary judgment on July 19, 2000 based on the theory that the Road Commission abandoned it rights to the parcel. The Road Commission answered the motion on August 9, 2000, and on June 10, 2002, this Court issued an opinion and order denying the plaintiffs' motion for summary judgment, finding that there was a material factual dispute about whether a road existed on Parcel A, and that "[t]he question of whether the Tuscola County Road Commission had the authority to abandon and discontinue the road cannot be determined until the fact-finder decides whether a road existed on Parcel A." Opinion and Order of June 10, 2002 at 7.
On June 27, 2002, the Road Commission filed the motion for summary judgment which is presently before the Court. On August 1, 2002, the Road Commission filed a paper styled as an answer to the plaintiffs' motion for summary judgment and a reply to the plaintiffs' response to the defendant's motion for summary judgment. However, there was no plaintiffs' motion for summary judgment pending at the time (the Court having denied the motion on June 10, 2002), nor had the plaintiffs answered the Road Commission's motion for summary judgment. The plaintiffs did not file an answer to the Road Commission's summary judgment motion until October 24, 2002. On that same date, the plaintiffs filed a cross motion for summary judgment reasserting the abandonment theory. As mentioned previously, defendant DNR filed a brief in support of the Road Commission's motion for summary judgment and opposing the plaintiffs' cross motion for summary judgment on December 12, 2002.
Thus, there are two summary judgment motions now before the Court. The Road Commission argues that Garner Road extended across Parcel A from at least 1934 and for more than ten years thereafter to provide public access to the lakeshore. The key issue in the case, therefore, is whether or not a highway-by-user was established during the critical time period. As will be explained below, there are four elements under Michigan law that must be demonstrated in order to prove a highway-by-user. If the undisputed evidence establishes each of the four elements, the Road Commission is entitled to a judgment as a matter of law. If it is undisputed that one of four elements cannot be proven, then the plaintiffs are entitled to summary judgment. If a material fact dispute exists on any of the elements, summary judgment in favor of either party is inappropriate. Further, if the plaintiffs can establish that the Road Commission abandoned its rights in the land, the plaintiffs are entitled to summary judgment.
II.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
A.
The Court first considers the plaintiffs' cross motion for summary judgment in which they contend once again that the property in question was formally abandoned pursuant to Mich. Comp. Laws § 224.18(3) by the Road Commission in the April 2, 1998 resolution. In the Court's June 10, 2002 opinion, the Court was of the view that the abandonment question could not be decided until the highway-by-user question was resolved. However, the Court now believes that the abandonment issue can be decided on the present record.
The right of a private property holder to exclude others is well-recognized. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) ("We have repeatedly held that, as to property reserved by its owner for private use, the right to exclude [others is] one of the most essential sticks in the bundle of rights that are commonly characterized as property."). Just as a state may create a property interest that is entitled to constitutional protection, the state also has the power to permit an unused interest in property to revert to another after the passage of time. Texaco, Inc. v. Short, 454 U.S. 516, 526 (1982).
The plaintiffs state that the Tuscola County Road Commission's resolution on April 2, 1998 constituted a formal abandonment of its interest in Parcel A. The resolution stated that the road across Parcel A be "totally and permanently abandoned and discontinued as a public road or street." See Pl.s' Mot. S. J., Ex. 2. Once property is abandoned under Mich. Comp. Laws § 224.18, the plaintiffs allege the property reverts back to the adjacent landowners — in this case, the plaintiffs. See Township of Dalton v. Muskegon County Bd. of County Road Comm'rs, 223 Mich. App. 53, 55, 565 N.W.2d 692, 694 (1997) ("While the [highway-by-user] statute does not state who obtains title when there is an absolute abandonment of a road or right of way, under common law a street or alley that is vacated reverts to the abutting landowner."). Therefore, the plaintiffs argue, they are entitled to summary judgment because the property at issue was abandoned and they are the true owners of the property and can exclude whomever they wish.
The authority of a board of county road commissioners to relinquish jurisdiction of a county road, and its authority to abandon a county road, is governed by Section 224.18 of the Michigan Complied Laws. The statute provides in relevant part:
The board of county road commissioners of any county which has adopted the county road system is hereby authorized and empowered to, at any time, either relinquish jurisdiction of or absolutely abandon and discontinue any county road, or any part thereof, by a resolution adopted by a majority vote. . . . After proceedings to relinquish jurisdiction have been had, the jurisdiction and control of such road, or part thereof, shall revert to the township or municipality within which the same is situated. . . . After proceedings to absolutely abandon and discontinue have been had, such road or part thereof shall cease to exist as a public highway. Said board shall, at the time of the passage of any resolution to absolutely abandon and discontinue any portion of any highway under its jurisdiction, determine in said resolution that it is to the best interests of the public that said highway or portion thereof shall be absolutely abandoned and discontinued.
Mich. Comp. Laws § 224.18 (emphasis added); see Township of Dalton, 223 Mich. App. at 55, 565 N.W.2d at 694 (holding that the decision to abandon a highway is legislative in nature and should not be disturbed by courts absent fraud, collusion, or clear abuse of discretion).
The resolutions adopted by the Board of the Tuscola County Road Commission do not effectuate an abandonment of the "road" in this case. Although the Road Commission conducted a hearing concerning the disputed road on April 2, 1998 and concluded that the road be "totally and permanently abandoned and discontinued as a public road or street," it was clear that further proceedings were contemplated before final action was to be taken on the matter. For instance, the resolution calls for a public hearing at which objections to abandonment would be entertained. Although there is no evidence of any such hearing, further action was taken at the August 6, 1998 meeting, which concluded with a resolution that stated, "for clarification purposes, it is the intent of this resolution to only decertify" the portion of Garner road that is in dispute and "not to abandon the statute and platted right of way." Def.'s Mot. S. J., Ex. E.
Read together, these two resolution are insufficient to prove that the Road Commission "absolutely abandon[ed]" the road "by resolution adopted by a majority vote" as required by Mich. Comp. Laws § 224.18. There is also no evidence that the Road Commission determined that "it is to the best interest of the public" that the disputed portion of Garner Road "be absolutely abandoned and discontinued." The plaintiff has offered no additional proof of abandonment and has not demonstrated that a fact question on this issue exists. Consequently, the Court concludes that the plaintiff is not entitled to summary judgment on this issue.
B.
The question of whether there was a public road to abandon — that is, a highway-by-user — remains. Although the plaintiffs' claim of an unconstitutional taking without just compensation is based on federal law, see, e.g., Montgomery v. Carter Co., Tenn., 226 F.3d 758, 766, 768-70 (6th Cir. 2000), the scope of the plaintiffs' property rights themselves is defined by state law. McLaurin v. Fisher, 768 F.2d 98, 102 (6th Cir. 1985). The Court continues to believe that material fact issues preclude the entry of summary judgment for either the plaintiffs or the Road Commission on this question.
"For a road to become public property, there generally must be either a statutory dedication and an acceptance on behalf of the public, a common law dedication and acceptance, or a finding of highway by public user." Beulah Hoagland Appleton Qualified Personal Residence Trust v. Emmet County Road Comm'n, 236 Mich. App. 546, 554-55, 600 N.W.2d 698, 702 (1999). A highway-by-user is a roadway in which the public has acquired an interest despite the absence of a formal dedication. Cimock v. Conklin, 233 Mich. App. 79, 86-87, 592 N.W.2d 401, 405 (1998); Rigoni v. Michigan Power Co., 131 Mich. App. 336, 343, 345 N.W.2d 918, 924 (1984). The highway-by-user statute, Mich. Comp. Laws § 221.20, states:
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 [sixty-six feet], 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 [thirty-three feet] in width on each side of such lines.
Mich. Comp. Laws § 221.20. The critical period presented by the evidence, according to the parties, is between 1935 and 1945. The first version of the highway-by-user statute was enacted in 1838, the year after Michigan became a state. 1838 RS, tit. 6, chap. 4, § 42. Although the statutory period for retention of the property right has changed over the years, the statute has remained substantially similar to the one enacted as first written. See City of Kentwood v. Estate of Sommerdyke, 458 Mich. 642, 650, 581 N.W.2d 670, 673 (1998).
Thus, a party asserting that a public highway came into existence pursuant to Section 221.20 must prove (1) a defined line, (2) that the road was used and worked on by public authorities, (3) public travel and use for ten consecutive years without interruption, and (4) open, notorious and exclusive public use. Beulah Hoagland, 236 Mich. at 555, 600 N.W.2d at 702; see Bain v. Fry, 352 Mich. 299, 89 N.W.2d 485 (1958); Alton v. Meeuwenberg, 108 Mich. 629, 66 N.W. 571 (1896).
"The highway-by-user statute does not treat the property in question as abandoned; however, it does treat the property as impliedly dedicated to the state for public use." City of Kentwood, 458 Mich. at 652, 581 N.W.2d at 674; see also Kruger v. LeBlanc, 70 Mich. 76, 37 N.W. 880 (1888). Michigan's highway-by-user statute states that dedication to the public is established after a ten-year period of limitation. See City of Kentwood, 458 Mich. at 654, 581 N.W.2d at 675. The property owner must present evidence of activity during the ten-year period that rebuts the existence and extent of a public highway. City of Kentwood, 458 Mich. at 654, 581 N.W.2d at 675. In addition, a property owner must assert the right within the prescribed period in a manner calculated to interfere with, disturb, or interrupt the use by the public, or by instituting an action in court. Id. at 655, 581 N.W.2d at 676. If ten years pass without an assertion of right by the property owners, the law presumes that the owner intended to dedicate the entire four-rod width of the road to the state. Id. at 662-63, 581 N.W.2d at 679.
If the government claims that a roadway is public property by virtue of the highway-by-user statute, then the government has the burden of proving each of the elements necessary to establish a highway-by-user. See Cimock, 223 Mich. App. at 87 n 2, 592 N.W.2d at 405 n 2. The plaintiffs need not rebut the presumption that their predecessors in interest impliedly dedicate the land to the state. City of Kentwood, 458 Mich. at 654, 581 N.W.2d at 675. The burden of rebutting the presumption that a highway-by-user is sixty-six feet wide, however, falls to the landowner. See Eyde Bros. Development Co. v. Eaton Co. Drain Comm'r, 427 Mich. 271, 298, 398 N.W.2d 297, 317 (1986).
If the property owner did not properly assert his right to the property within the ten-year period, or if the government establishes that a highway by user has been formed, then the Taking Clause of the Constitution is not implicated because after dedication, "the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property — and not the action of the State — that causes the lapse of the property right; there is no `taking' that requires compensation." Texaco, 454 U.S. at 530; see City of Kentwood, 458 Mich. at 662-63, 581 N.W.2d at 679.
As to the first element — a defined and visible route, see Rigoni, 131 Mich. App. at 343-44, 345 N.W.2d 918, 924 — the defendant points to the testimony of Richard McLaren, a long-time resident of the area, who stated that the public used Garner Road as it ran across Parcel A to get to the lakeshore between 1934 and 1966. McLaren Dep., at 20. He also stated that around 1934 or 1935 the road was graded, especially during hunting season. Id. at 17. Lyle Houthoofd testified that, "the road went right to the water" and that the road was built with logs and covered with dirt. Lyle Houthoofd Dep., at 4, 6. Alfred Lindenberg, another long-time resident of the area, testified that Garner Road went all the way to the shore and the road in 1938 was wide enough for a car to drive across. Lindenberg Dep., at 10-11. Lindenberg further testified that there was nothing obstructing the road in the 1930s. Id. at 17.
On the other hand, attached to the plaintiffs' original verified complaint is an affidavit by Gerald Sweetman, a thirty-two year resident of Oakhurst Park who claims to have personal knowledge of the area for the last fifty-five years. He states "with absolute certainty and truthfulness that there has never been in the last fifty-five years any public road or trail whatsoever on any part of the Houthoofd property." Compl., Ex. G, ¶ 5. The deposition of Sweetman was taken in 2000, so it is Sweetman's testimony that the road was not in existence after 1945. The aerial photographs submitted by the defendant date back only to 1949 and therefore are not particularly useful in determining whether a road existed at the time period in question. Furthermore, the plaintiffs suggest that Lyle Houthoofd's testimony that the road was used by him in the late 1930s is apocryphal because Lyle was born in 1937 and could not likely remember using the road as an infant.
This anecdotal evidence is some proof that a road existed, but it does not conclusively establish a defined and visible route. More importantly, the evidence is disputed. The Court finds that a genuine dispute of fact exists with respect to this element of the defense.
The second element of the defense requires the public body to show control over the road in question. Keller v. Locke, 62 Mich. App. 591, 592, 233 N.W.2d 666, 667 (1975). The degree of maintenance required to demonstrate such control is merely enough to keep the road in a "reasonably passable condition." Boone v. Antrim Co. Bd. of Rd. Comm'rs, 177 Mich. App. 688, 694, 442 N.W.2d 725, 731 (1989); see also Indian Club v. Lake Co. Rd. Comm'rs, 370 Mich. 87, 91, 120 N.W.2d 823, 826 (1963). However, infrequent maintenance and repairs by the county do not make it a public road. Keller, 62 Mich. at 592-93, 233 N.W.2d at 667.
According to Lyle Houthoofd's testimony, the township built and maintained the road across Parcel A between 1935 and 1945. Houthoofd Dep., at 5, 8, 13. Lyle Houthoofd further testified that the county graded the road in the 1940s. Id. at 30. However, as observed earlier, Lyle Houthoofd purported to describe the road during the period covering the two years prior to his birth to his eighth year. McLaren testified that he was not completely sure but that he believed the county would grade the road from time to time all the way to Saginaw Bay. McLaren stated that Earl Metiva would run the grader and that Metiva worked for the county; but McLaren always "took it for granted" that the county was performing the grading on the road. McLaren Dep., at 17-19. Lindenberg testified that the county dug a ditch for the road. Lindenberg Dep., at 8, 10. The Court finds that the testimony on this element is equivocal and insufficient to establish this element as a matter of law.
The next element is whether the public used the road without obstruction for ten consecutive years. Cimock, 223 Mich. App. at 86-87, 592 N.W.2d at 405. The law does not fix the number of people who must travel upon a road in order to establish this element. Roebuck v. Mecosta Co. Rd. Comm'n, 59 Mich. App. 128, 131, 228 N.W.2d 343, 345 (1975). It is sufficient if the road was traveled as much as the circumstances of the surrounding population, and its business, required. Ibid. A road used by the public for accessing areas for hunting and recreation may be deemed a highway-by-user. Roebuck, 59 Mich. App. at 131, 229 N.W.2d at 345. However, as Cimock emphasizes, this element of the highway-by-user test requires a showing that the road is used by members of the general public and not merely the friends and family of people living on the road.
Lyle Houthoofd testified that when he was young he would haul ice out of the Bay using the road across Parcel A and would also access the road to go ice fishing. Lyle Houthoofd Dep., at 11-13. Lyle Houthoofd also testified that people from Flint, Michigan would use the road when they came to the area during the summer. Id. at 13. Lindenberg testified that the road was accessed for hauling water to cattle, duck hunting, swimming, and to cut trees. Lindenberg Dep., at 15-18. Houthoofd, McLaren, and Lindenberg all testified that the road was used without obstruction, see Houthoofd Dep., at 5-7, McLaren Dep., at 20, Lindenberg Dep., at 17, although Houthoofd also admitted that a gate was possibly put at the beginning of the road in the 1940s. Houthoofd Dep., at 33.
The Court concludes that this testimony fails to conclusively establish that the roadway was used by the public without obstruction for a consecutive ten-year period. Although the testimony shows that there was some use by the public for some period, and use for the ten-year time period could be inferred from the testimony, that conclusion is not compelled by the evidence in the record and a fact finder would be free to draw a different inference.
Finally, the Road Commission must show that the public use of the road was "open, notorious, and exclusive." Alton, 108 Mich. at 636, 66 N.W. at 574. The Alton court explained that the public travel
must be open. It must be notorious. It must be accepted by the public generally. It must be traveled upon as a public highway, and the possession of the public must be exclusive; so that, if any person entered upon the premises and sought to use it in a manner other than as a public highway, the public authorities would have an action against such person for trespass upon the road.Id. at 636, 66 N.W. at 575. The court in Donaldson v. Alcona County Board of County Road Commissioners, 219 Mich. App. 718, 558 N.W.2d 232 (1996), stated that
it is insufficient if public use of a roadway is a mere permissive use by the general public however long continued. In order to make it a public highway, the use must be so open, notorious and hostile as to be notice to the landowner that his title is denied. Other precedents substitute the requirement that a use must be "exclusive" instead of "hostile." We conclude that these two terms are of similar import.Id. at 725, 558 N.W.2d at 235 (citations omitted). The court provided further explication: "[a]n action is `exclusive' if it `excludes' something, meaning that it `shuts out,' `bars,' or `disregards' something. Similarly, an action is `hostile' if it treats something in an `antagonistic' manner." Ibid. The defendant states that it is difficult to fathom, in light of the testimony of the witnesses recounted earlier, that the plaintiffs' predecessors in interest were unaware of the deer and duck hunters, horses pulling wagons, and general public accessing the Bay over their property, and that the plaintiffs essentially must rebut a presumption that the land was not dedicated to the public by the former landowners. See City of Kentwood, 458 Mich. at 654, 581 N.W.2d at 675. The plaintiffs, on the other hand, state that the defendant has not conclusively proved this element and that it is a question of fact as to whether an occasional permissive hunter or ice fisherman constitutes "open, notorious and exclusive use uninterrupted for 10 years."
The Court agrees with the plaintiffs. The evidence does not conclusively demonstrate that the public use of the road was open, notorious, and exclusive from 1935 to 1945. It is true that the defendant has provided the testimony of various individuals that the road was accessed by the public to hunt, swim, and engage in other recreational activities. However, there is no evidence that these activities were not done under protest by the property owners at the time, or that the property owners did not grant permission to the public to use the road for limited purposes.
The Road Commission has not established the existence of a highway-by-user over Parcel A as a matter of law.
III.
The plaintiffs have not come forward with sufficient evidence to create a material fact issue on their claim that the Road Commission abandoned its rights in Parcel A. However, the Road Commission has not conclusively shown that a roadway was established there at all. Fact issues remain.
Accordingly, it is ORDERED that the defendant Road Commission's motion for summary judgment [dkt. #49] is DENIED.
It is further ORDERED that the plaintiffs' cross motion for summary judgment [dkt. #79] is DENIED.
It is further ORDERED that the parties appear before the Court on Monday, August 4, 2003 at 3:30 p.m. for a status and case management conference.