KEWEENAW CO ROAD COMM V PHILLUP BRINKMAN
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STATE OF MICHIGAN
COURT OF APPEALS
KEWEENAW COUNTY ROAD COMMISSION,
UNPUBLISHED
August 2, 2002
Plaintiff-Appellant,
v
No. 230832
Keweenaw Circuit Court
LC No. 98-000356-CH
PHILLUP BRINKMAN,
Defendant-Appellee.
Before: Griffin, P.J., and Hood and Sawyer, JJ.
SAWYER, J. (dissenting).
I respectfully dissent.
The majority bases its decision upon an argument not raised or briefed by the parties:
whether a county road commission is a “municipal corporation” for purposes of MCL
600.5821(2). The decision relied upon by the majority, Oakland Co Bd of Co Rd Comm’rs v
Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590; 575 NW2d 751 (1998), does not
even involve road law, much less whether MCL 600.5821(2) applies to county road
commissions. Rather, it considered whether a county road commission could raise an equal
protection argument against a state statute and the Supreme Court made the observation that a
road commission is a “body corporate,” but not a “municipal corporation.” However, this is a
minor part of the opinion and the statement is made without any citation to authority beyond a
reference to an Attorney General opinion. In short, I am not willing to make a major
pronouncement on road law sua sponte based upon a minor comment by the Supreme Court in a
case wholly unrelated to the issue at bar. Accordingly, I would proceed on the basis that MCL
600.5821(2) does apply to county road commissions and leave that issue for another case in
which it is properly raised and briefed. And on that basis, I would reverse the trial court.
The highway-by-user statute, MCL 221.20, 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, and all roads
which have been or which may hereafter be laid out and not recorded, and which
shall have been used eight 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 four rods in
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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
two roads in width on each side of the line.
A landowner may assert a right to the property within ten years after the creation of the
road as a public road by use. Kentwood v Sommerdyke Estate, 458 Mich 642, 662; 581 NW2d
670 (1998). If the ten years pass without continuous assertion of right by the property owners,
the law presumes that the owner intended to dedicate the entire four-rod width of the road. Id. If
the owners fail to act, the property is deemed dedicated to the state. Id., 663. After the
dedication, the property owner retains no interest in the property. Id. Thus, the property in
question was never owned by defendant. Id., 665.
In the absence of legislation to the contrary, the statute of limitations for recovery of real
property does not run against the state, and therefore land held by the state cannot be acquired by
adverse possession. Caywood v DNR, 71 Mich App 322, 327; 248 NW2d 253 (1976). MCL
600.5821(2) provides, “Actions brought by any municipal corporation for the recovery of the
possession of any public highway, street, alley, or any other public ground are not subject to the
period of limitations.” The circuit court erred in using adverse possession principles to find that
defendant could regain rights to the roadway established by implied dedication.
I would reverse and remand for further proceedings, with defendant being allowed to
offer evidence to rebut the presumption that the dedication was for the full statutory four-rod
width. Kent Co Rd Comm v Hunting, 170 Mich App 222, 231; 428 NW2d 353 (1988).
/s/ David H. Sawyer
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