LEWIS LESLIE V SAULT STE MARIE BRIDGE CO
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STATE OF MICHIGAN
COURT OF APPEALS
LEWIS LESLIE and MARY BETH LESLIE,
UNPUBLISHED
June 1, 2001
Plaintiffs-Appellants,
v
No. 223989
Dickinson Circuit Court
LC No. 98-010346-CZ
SAULT STE MARIE BRIDGE COMPANY,
JAMES BEAUCHAMP, and DICKINSON
COUNTY ROAD COMMISSION,
Defendants-Appellees.
Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ.
PER CURIAM.
In this adverse possession and prescriptive easement action, plaintiffs Lewis and Mary
Beth Leslie appeal by right, challenging the trial court’s two orders granting defendants Sault Ste.
Marie Bridge Company, James Beauchamp, and Dickinson County Road Commission summary
disposition. We affirm.
I. Basic Facts And Procedural History
In 1970 and 1971, the Leslies purchased parcels of land on Menominee Street near a
railroad in Quinnesec Township, Dickinson County, which they still own today. The Sault Ste.
Marie Bridge Company owns a strip of land as a right-of-way (the right-of way) parallel to its
railroad and just north of the Leslies’ property. According to the Leslies, since approximately
1970, Dickinson County has maintained a gravel road running through the Bridge Company’s
property that was used by the public for access from Lake Street, running nearly parallel to the
railroad. The Bridge Company apparently leased the right-of-way to James Beauchamp in 1998
so that he could construct a mini-storage facility. The parties refer to this road as the “alley,” so
we refer to it that way as well.
In June 1998, the Leslies filed a one count complaint against defendants alleging that the
alley had become a “highway by user” pursuant to MCL 221.20; MSA 9.21. In October 1998,
following defendants’ motion for summary disposition, the trial court granted summary
disposition on this complaint pursuant to MCR 2.116(C)(8), holding that the highway-by-user
statute did not create a private right of action.
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The trial court, however, granted the Leslies’ subsequent motion to file an amended
complaint in March 1999. In their amended complaint, the Leslies contended that they had used
the alley since 1970, as had their property’s previous owners. They claimed a prescriptive
easement over the alley to access the back of their lots. The Leslies also claimed that they
adversely possessed a section of the Bridge Company’s property, which is essentially a strip of
land 35 feet wide by 165 feet long located between the alley and their property, contending that
they and their predecessors in title have used this area since approximately 1970. In November
1999, the trial court granted defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10) on the amended complaint because, it concluded from Lewis Leslie’s deposition
testimony, there was no question of fact regarding whether the Leslies had claimed the disputed
pieces of property as of right. On appeal, the Leslies challenge both orders summarily disposing
of this case.
II. Standard Of Review
Whether a trial court properly granted summary disposition is a question of law that we
review de novo.1
III. Original Complaint
A. MCR 2.116(C)(8) Legal Standard
A trial court must grant a motion for summary disposition pursuant to MCR 2.116(C)(8)
if “[t]he opposing party has failed to state a claim on which relief can be granted.”2 “A motion
for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the
plaintiff's complaint and should be granted only if the claims are so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.”3 In ruling on this
motion, a trial court is only allowed to consider the pleadings and may not expand the record
under consideration to include, affidavits, depositions, or other documentary evidence.4
B. Highway-By-User
The Leslies contend that the highway-by-user statute5 grants them a private cause of
action to declare a privately-owned road a public highway. A statute may provide a private right
of action expressly, or it may be “can be inferred from the fact that the statute provides no
1
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
2
MCR 2.116(C)(8).
3
Int'l Brotherhood of Electrical Workers, Local 58 v McNulty, 214 Mich App 437, 443-444; 543
NW2d 25 (1995).
4
MCR 2.116(C)(G)(4).
5
MCL 221.20; MSA 9.21.
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adequate means of enforcement of its provisions.”6 MCL 221.20; MSA 9.21 defines what
constitutes a highway-by-user:
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, 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 in width
on each side of such lines. [Emphasis supplied].
The highway-by-user statute does not specifically indicate which individuals or entities have the
authority to invoke its authority. Rather, MCL 221.20a; MSA 9.21(1), separately provides:
A township with the prior written consent of the board of county road
commissioners and upon petition to the township board by 51% of the property
owners whose frontage abuts a road may commence an action in circuit court to
have the road determined to be a public highway and to determine the length and
boundaries of the road. If the court finds that there has been public use of the
road for at least 10 years and that public authorities have expended public money
on the road, it shall enter an order that the road has become a public highway
setting forth the length and boundaries of that public highway. If the court finds
that the road has not become a public highway, the township may in the same
action acquire by purchase or condemnation in accordance with section 20h of
this chapter the property rights of those owners who in the action claim that the
road is not a public highway and the court shall enter its order that the road is a
public highway and set forth the length and boundaries of that public highway.
[Emphasis supplied].
The plain language of this statute7 refers not once, but twice to a township as the entity with the
authority to commence an action to declare a highway-by-user. MCL 221.20a; MSA 9.21(1)
does not provide an explicit cause of action for individuals, regardless of their property
ownership.8 Nor can a cause of action for individuals be inferred from the statute because MCL
221.20a; MSA 9.21(1) specifically authorizes a township to commence an action to declare a
6
Lane v Kindercare Learning Centers, Inc, 231 Mich App 689, 695-696; 588 NW2d 715 (1998).
7
See In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999) (“If
the statute is unambiguous on its face, the Legislature will be presumed to have intended the
meaning expressed, and judicial construction is neither required nor permissible.”).
8
Lane, supra.
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road a highway-by user, allowing for effective enforcement of that statute.9 Because the trial
court properly concluded that the Leslies, individuals, are not entitled to commence an action to
declare the alley a public road by relying on the highway-by-user statute, it also properly
concluded that summary disposition was proper for the original complaint because it failed to
state a claim on which the trial court could grant relief.
IV. Amended Complaint
A. MCR 2.116(C)(10) Legal Standard
When a party moves for summary disposition pursuant to MCR 2.116(C)(10), the trial
court must grant the motion if “there is no genuine issue as to any material fact, and the moving
party is entitled to judgment or partial judgment as a matter of law.”10 In ruling on the motion,
the trial court must consider all the documentary evidence in the record, including affidavits,
admissions, depositions, and pleadings.11
When a motion under subrule (C)(10) is made and supported [by documentary
evidence on the record] as provided in this rule [in subsection (G)(5)], an adverse
party may not rest upon the mere allegations or denials of his or her pleading, but
must, by affidavits or as otherwise provided in this rule, set forth specific facts
showing that there is a genuine issue for trial.[12]
B. Adverse Possession And Prescriptive Easement
The Leslies argue that the alley was subject to their prescriptive easement and that they
had acquired the long strip of land by adverse possession. In order for the Leslies to withstand
the motion for summary disposition on their adverse possession claim to the long strip of land,
they had to demonstrate that there was a genuine question of material fact concerning whether
their possession of the land was “actual, visible, open, notorious, exclusive, hostile, under cover
of claim or right, and continuous and uninterrupted for the statutory period of fifteen years.”13
9
Id.; see also Donaldson v Alcona Rd Comm’rs, 219 Mich App 718, 727, n 3; 558 NW2d 232
(1996) (suggesting that a township has primary and exclusive authority to commence an action
“to declare a road a public highway”).
10
MCR 2.116(C)(10).
11
MCR 2.116(G)(5).
12
MCR 2.116(G)(4).
13
See West Michigan Dock & Market Corp v Lakeland Investments, 210 Mich App 505, 511;
534 NW2d 212 (1995) (emphasis added); MCL 600.5801(4); MSA 27A.5801(4).
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C. The Long Strip Of Land
The fatal flaw in the Leslies’ adverse possession claim is that they did not claim the long
strip of land as of right in a hostile manner.14 In Walker v Bowen,15 the Supreme Court defined a
“claim of right” in an extensive discussion. Reduced to its essence, a person manifests a claim of
right by asserting exclusive ownership of the land, even if this claim of right is expressed by
action or use rather than a statement to that effect,16 when there is no actual right to the
property.17 To be sure, the Leslies acted as if they had a claim of right to the long strip of land by
planting trees, cutting grass, parking vehicles, and storing old equipment and plumbing there that
Lewis Leslie, a plumber, intended to recycle. Lewis Leslie even put up a sign indicating that he
owned the long strip of land. The Leslies knew that they did not own the property because,
Lewis Leslie said, they knew exactly where their property began and ended from their deed and
because of a previous property tax dispute, they did not seek or receive permission to use the
long strip of land, and they used it as if they owned it. This was sufficient to create a question of
fact regarding their claim of right to the long strip of land, contrary to the trial court’s conclusion.
However, a claim of right is insufficient to satisfy the basic requirements for adverse
possession if the claim of right is not hostile.18
The term “hostile” as employed in the law of adverse possession is a term of art
and does not imply ill will. Nor is the claimant required to make express
declarations of adverse intent during the prescriptive period. Adverse or hostile
use is use inconsistent with the right of the owner, without permission asked or
given, use such as would entitle the owner to a cause of action against the
intruder. See Rose v Fuller, 21 Mich App 172; 175 NW2d 344 (1970); also, 25
Am Jur 2d, Easements and Licenses, § 51, pp 460-461.[19]
At first blush, Lewis Leslie’s deposition indicated that he and his wife possessed the long strip of
land in a hostile manner, as indicated by the sign noting that it was their property and the way
14
Only Lewis Leslie’s deposition testimony appears in the trial court record. We assume that the
parties did not depose Mary Beth Leslie.
15
Walker v Bowen, 333 Mich 13, 20-22; 52 NW2d 574 (1952).
16
Id. at 21, quoting Smith v Feneley, 240 Mich 439, 442; 215 NW 353 (1927); see also DeGroot
v Barber, 198 Mich App 48, 53; 497 NW2d 530 (1993) (plaintiffs expressed a claim of right,
though founded in a mistaken belief regarding true boundary, by using property exclusively,
“posting no trespassing signs,” denying permission to others who asked to use the land);
Connelly v Buckingham, 136 Mich App 462, 470; 357 NW2d 70 (1984) (“[T]he conduct of the
defendants clearly establishes their intent to claim title to all the land within the boundary of the
fence.”).
17
See Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 681; 619 NW2d 725
(2000).
18
West Michigan Dock, supra at 511.
19
Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976).
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they used the land. However, he also clearly indicated that he did not feel as if he and his wife
could keep others from using the land. He assumed that he could use the land so long as no one
complained. In fact, he agreed with defense counsel that he would have vacated the long strip of
land had its owners asked him to do so. Thus, while he and his wife used the long strip of land
as if they had a right to do so, the record evidence indicates that they did not use the land in a
hostile manner because they recognized that their right to use the land was inferior to the true
owner’s rights.20 Accordingly, summary disposition for their adverse possession claim was
proper.
D. The Alley
In order to support their claim that they had a prescriptive easement in the alley in the
face of the motion for summary disposition, the Leslies had to demonstrate that a genuine issue
of material fact remained in dispute regarding each of the elements relevant to adverse
possession, except that they did not need to address the exclusivity element.21 The evidence on
the record indicates that the Leslies used the alley by driving over it an average of five to six
times a week, calling Dickinson County to repair it, and by making small improvements in its
surface for their own benefit. However, the little evidence in the record concerning their attitude
toward this alley implies that they used the alley because they thought it was a public
thoroughfare, not because they thought the alley actually belonged to them or thought they had
been given a right to use it.22
The evidence on the also record makes clear that the Leslies used the alley in a manner
consistent with the way the public uses public roads, rather than the way someone with a property
interest in land may care for and use the land. For instance, though Lewis Leslie expressed
concern about the condition of the alley because he did not want to harm his vehicles as he drove
over it, he did not assume any significant responsibility for its repair and maintenance, instead
leaving that primarily to the county road commission. Nor did the Leslies erect any structure or
sign that would indicate that they had taken an interest in the alley that was adverse to the true
owner’s interests regardless of their willingness to allow others to use the alley. Thus, there is no
20
See, generally, Smeberg v Cunningham, 96 Mich 378, 385; 56 NW 73 (1893) (“An entry with
the intent to remain in possession until the real owner claims it, or demands rent, is not hostile.”);
Whitehall Leather Co v Capek, 4 Mich App 52, 55-56; 143 NW2d 779 (1966) (negotiating with
landowner to rent the property indicated that the plaintiff acknowledged that it was not the
exclusive owner, possession was not “adverse or hostile”).
21
West Michigan Dock, supra at 511; see also Dyer v Thurston, 32 Mich App 341, ; 188 NW2d
633 (1971) (“The basic elements for a prescriptive easement are: (1) Continued and
uninterrupted use or enjoyment; (2) Identity of the thing enjoyed, and; (3) A claim of right
adverse to the owner of the soil, known to or acquiesced in by him.”).
22
See Reed v Soltys, 106 Mich App 341, ; 308 NW2d 201 (1981) (“A prescriptive easement is
founded on the supposition of a grant.”).
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remaining question of fact concerning whether their use of the alley was pursuant to a claim of
right or hostile, making summary disposition proper.
Affirmed.
/s/ David H. Sawyer
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
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