Olsen v. Village of Grand Beach , 282 Mich. 364 ( 1937 )

Plaintiffs filed a bill of complaint for the purpose of restraining the defendants from opening up a portion of certain streets in Grand Beach Springs Addition which is located on the shores of Lake Michigan.

The plat was dedicated in 1908 and the land was then located in New Buffalo township. It shows a street called Lakeview avenue which runs nearly parallel to the lake and is intersected by streets called Oak, Cedar and Ely which run down to the beach. At the time the property was platted, this dune land was undeveloped and covered with small native shrubs and trees. Later Lakeview avenue was laid out and the road surfaced. Plaintiffs Olsen, Stewart and McGurren bought lots and built valuable homes on Oak and Ely streets between Lakeview avenue and the beach. These streets were not developed into roads, the brush and trees were left growing, but a plank or board walk had been laid in the center of each street from Lakeview avenue to the shores of Lake Michigan.

For several years, plaintiffs used this property between their own and the walk as their own. Plaintiff McGurren buried oil tanks in the street, put in a hedge across the end of the street, and planted shrubs and sodded the street adjacent to his property; Stewart built the steps of his house in the street and planted grass and shrubs in the street; and Olsen used the street in a similar manner.

About 1920, the owners of property in Grand Beach Springs formed a voluntary association known as the Grand Beach Property Owners' Association. The property owners paid fees and the association maintained a life guard, a night watchman, provided fire protection, paid for the building of concrete walks five feet wide in Oak and Ely streets from Lakeview avenue to the bluff of Lake Michigan, and steps down to the beach, trimmed the shrubs along these walks, and put in benches on the platforms on the bluff. These walks have always been used by the public, but no portion of the streets abutting plaintiffs' property was ever used by automobiles, teams or wagons except for cleaning the sidewalk of leaves and brush.

In 1931, the township of New Buffalo created the Grand Beach road repair district, which included the village of Grand Beach and property in dispute; taxes were spread and road work was done in the district, although the record shows that the only work done on the portion of the streets involved in this litigation was removing sand from the sidewalks.

The trial court found as a fact that none of the streets have been used or permitted to be used by the public generally; that there had been no formal acceptance of the streets by the public authorities and concluded as a matter of law that the action of the township board in creating a road district in 1931 was not an acceptance by public authorities of the streets as public highways; and that if it be considered as an intention to accept, it did not occur within a reasonable time after the dedication (1908).

It is the claim of defendant that the streets had been used by the public and that the acceptance of the plat as a road district by the township of New Buffalo in 1931 did occur within a reasonable time after dedication.

In this cause, although the record contains no testimony on behalf of plaintiff Bagley, it is conceded by appellant that if the other plaintiffs' contention is correct it would affect all streets in the village, consequently no point is made of this fact. The plat was dedicated in 1908; streets were dedicated to the public and plaintiffs as well as others purchased their property by lot number. At the time the lots were purchased the streets were unimproved and remained so for a period of five or six years. The homes of plaintiffs are in the last row of houses facing Lake Michigan and the chief use of the streets would be for passage to and from the lake. Certain personal uses were made of the streets by the lot owners, but this use did not interfere with the use made by the public generally. The streets are three of the five existing openings from the village to the waters of Lake Michigan.

Section 3936, 1 Comp. Laws 1929, provides:

"All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not * * * shall be deemed public highways."

See, also, Brown v. Township of Byron, 189 Mich. 584.

Use alone does not constitute a public highway.

In Snow v. Murphy, 248 Mich. 659, we said:

"The public has used this road for a longer time than would be required to establish a way by user, but use alone is not sufficient. There must be an acceptance by the public at least by taking over the control and maintenance of some portion of the alleged highway."

See, also, Stickley v. Township of Sodus, 131 Mich. 510, cited in the above case and also reported in 59 L.R.A. 287 and Waubun Beach Ass'n v. Wilson, 274 Mich. 598 (103 A.L.R. 983).

In the instant case there is no claim made that the plat was accepted by any formal action of the township authorities until 1931 nor did said officials take charge of or maintain such streets until 1931.

The mere making sale of lots with reference to a map or plat prepared or adopted by the owner does not constitute an irrevocable dedication to the public, but amounts to a mere offer of dedication which may be withdrawn if not accepted by the public within a reasonable time; but the platting and sale of lots constitute a dedication of streets, etc., delineated on the plat as between the grantors and purchasers for them.Pulcifer v. Bishop, 246 Mich. 579 . The facts and circumstances relied upon to prove the existence of an intent on the part of a dedicator and acceptance by the public must be of a positive and unequivocal character. Vance v. Village of Pewamo, 161 Mich. 528.

This brings us to the question of the reasonableness of time in which the plat was accepted by the public authorities. The general rule is that an offer of dedication must be accepted within a reasonable time.

In the County of Wayne v. Miller, 31 Mich. 447, the dedication by plat was an offer which for more than 20 years the public neglected to accept. The court said:

"After what length of time such an offer must be regarded as withdrawn, circumstances may perhaps determine, but unless there are facts equivalent to a continuous renewal of the offer it cannot be considered open after a lapse of a period of time sufficient to bar all actions for the recovery of lands under the statute of limitations."

In Village of Grandville v. Jenison, 84 Mich. 54, the public failed for 20 years to accept an offer by land owners to dedicate land for a street and for 14 years it was occupied by the owner of the adjoining property in such a way as to indicate a denial of any right of the public therein. This court held the acceptance was not within a reasonable time, citing County of Wayne v. Miller, supra and Field v. Village ofManchester, 32 Mich. 279.

In our opinion the acceptance of the offer of dedication came too late. The plat was dedicated in 1908. In 1917 plaintiffs purchased their lots and soon thereafter erected dwellings, planted trees and shrubs, spent large sums of money in improving the streets abutting upon their property. For a time they kept the outside gate locked to keep the general public out and issued membership cards and ordered people off the premises. All of the above acts were done with the knowledge of defendant and indicate a withdrawal of the offer of dedication prior to 1931.

The decree of the lower court should be affirmed, with costs to plaintiffs.

POTTER, J., concurred with SHARPE, J.