Feldman v. Monroe Twp. Board , 51 Mich. App. 752 ( 1974 )

51 Mich. App. 752 (1974) 216 N.W.2d 628

FELDMAN
v.
MONROE TOWNSHIP BOARD

Docket No. 16065.

Michigan Court of Appeals.

Decided March 5, 1974.

Edward L. Cobb, for plaintiffs.

Ready, Sullivan & Ready, for defendants.

Before: LESINSKI, C.J., and HOLBROOK and BASHARA, JJ.

HOLBROOK, J.

Plaintiffs are seeking to reverse the December 6, 1972 circuit court ruling denying the vacation of certain areas of the recorded plat, Greenings Bayside Subdivision No. 1. The plat was duly filed in 1928 by Benjamin Greening, and included a statement that "the streets, parks, and canals as shown on said plat are hereby dedicated to the use of the property owners only". These properties consisted of areas labeled (1) "La Plaisance Court", (2) "canal" (westerly), (3) "canal" (easterly), and (4) "park", all of which have been so dedicated for the past 45 years.

Plaintiffs claim rights as successors in interest of the original grantor dedicator and as owners of lots abutting the dedicated properties. Following the submission of proofs at trial, plaintiffs amended their request for relief to exclude the "westerly canal" and a portion of the park. It appears that plaintiffs' interest in obtaining the dedicated areas is to expand their current business ventures there. At trial there was considerable testimony as to the degree of use that defendants and plaintiffs have made of the dedicated areas.

Plaintiffs have brought their claim under two theories, the first being that defendants' lack of use constitutes abandonment or nonacceptance of the privately dedicated properties so that title vests in the owner of the abutting land. Plaintiffs argue that the present case, while involving a private dedication, should use the same guidelines as those used to vacate public dedication. This position, however, is not supported by the law.

A private dedication is "irrevocable" upon the sale of lots by reference to the plat and the grantees of the dedicators are bound by the dedication. See 86 ALR2d 860, § 6, p 877; Westveer v Ainsworth, 279 Mich. 580; 273 N.W. 275 (1937); Kirchen v Remenga, 291 Mich. 94; 288 N.W. 344 (1939).

The Kirchen Court provides guidance as to the legal theory under which such private dedications occur and of the status of the parties therein, p 108-109; 288 N.W. 349:

"The purchasers of lots in the original plat took not only the interest of the grantor in the land described in their respective deeds, but, as an incorporeal hereditament (1 Sheppard's Touchstone [7th Ed] p 91) appurtenant to it, took an easement in the streets, parks and public grounds mentioned and designated in the plat as an implied covenant that subsequent purchasers should be entitled to the same rights. The grantors could not recall this easement and covenant any more than they could recall other parts of the consideration. They added materially to the value of every lot purchased. Grogan v Town of Hayward, 4 F 161 [Calif Cir, 1880]. And the rule has been established in this state that such an easement appurtenant to the lots sold is valid and enforceable not only against the plattor of such land, but as against all who hold under the original grantor. Westveer v Ainsworth, 279 Mich. 580 [273 N.W. 275 (1937)]; Schurtz v Wescott, 286 Mich. 691 [282 N.W. 870 (1938)]; 18 CJ 115."

We agree with this position and rule that both the defendants and plaintiffs have an easement in the privately dedicated lands. The generally acknowledged principle concerning easements is that mere nonuse, no matter how long, will not constitute an abandonment in an easement created other than by prescription unless accompanied by some act which manifests a clear intent to abandon. First National Trust & Savings Bank v Smith, 284 Mich. 579, 588; 280 N.W. 57, 60 (1938); State Highway Commission v St Joseph Twp, 48 Mich. App. 230, 237; 210 NW2d 251, 254-255 (1973); 25 Am Jur 2d, Easements and Licenses, § 105, p 509.

The trial judge, under the facts presented, was amply justified in determining that a clear intent to abandon was not shown. On the contrary, plaintiffs and defendants are in dispute over the use of the area, not abandonment. For a case involving similar facts and supporting this position, see Schurtz v Wescott, 286 Mich. 691; 282 N.W. 870 (1938).

Plaintiffs' second argument relies on the recently enacted Subdivision Control Act of 1967, specifically MCLA 560.101; MSA 26.430(101) through MCLA 560.229; MSA 26.430(229). This Court agrees with the lower court's determination that unfortunately these provisions emerged prematurely from the legislative drafting process. Typifying the result and confusion is the revised MCLA 560.222(2); MSA 26.430(222)(2). In determining who has standing to sue under the act, this section declares:

"To vacate, correct, alter or revise a recorded plat or any part of it, the proprietor of a subdivision or any lot in a subdivision; the governing body of a municipality which considers it necessary or advisable in the interest of the welfare, health or safety of its citizens; 2/3 of the proprietors collectively, of lands in the subdivision, and who also own 2/3 by area of the lands may apply to the appropriate circuit court."

The section preceding the first semicolon, namely, "the proprietor of a subdivision or any lot in a subdivision"^[1] conflicts with that section following the last semicolon "2/3 of the proprietors collectively, of lands in the subdivision, and who also own 2/3 by area of the lands".

One of two conclusions is possible from this wording, either the latter portion is correct and it overrules the standing of a proprietor of a single lot or the first section is correct and the latter section then is meaningless. A review of the legislative history reveals that the only substantial change brought about by § 222(2) from its predecessor, § 60 of the Plat Act, is the addition of the clause following the last semicolon. It would appear unlikely that the Legislature would have added this clause only to have it negated by the first one.

Plaintiffs argue that because of this Court's decision in Darnton v Hayes Twp, 22 Mich. App. 575; 177 NW2d 706 (1970), we have previously determined that full weight should be given to the first clause. However, this Court in Darnton was concerned with determining which procedure, either a declaratory judgment under GCR 1963, 521, or the Subdivision Control Act, was the better procedure to bring a similar plat action. No issue was presented to that Court on the present disputed section. Thus, this Court determined only that the Subdivision Control Act was the better method for plaintiffs to proceed under rather than pursue a declaratory judgment action. As such, that case is not controlling as to the issue here raised. Plaintiffs do not qualify as "2/3 of the proprietors collectively, of lands in the subdivision, and who also own 2/3 by area of the lands".

We hold that the latter clause, giving standing to 2/3 of the proprietors collectively, of the platted land, who also own 2/3 by area of that land, is the controlling interpretation.

Affirmed. No costs, the interpretation of a statute being involved.

All concurred.

NOTES

[1] A proprietor of a subdivision may qualify also under the last provision of the section.