JAMES MICHAEL VICK V DEPT OF CONSUMER & INDUSTRY SERV
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES MICHAEL VICK and DIANE L.
DEFORTY-VICK, husband and wife,
UNPUBLISHED
July 8, 2004
Plaintiffs-Appellants,
v
No. 243630
LC No. 01-714-19-CH
KATHLEEN M. WILBUR, director of the State of
Michigan Department of Consumer & Industry
Services, successor by Executive Order to the
Michigan Department of Treasury; K.L. COOL,
Director of the State of Michigan Department of
Natural Resources; DOUGLAS WAY, Chair of the
Charlevoix Country Road Commission; JOANN
BEAMAN, Charlevoix County Drain
Commissioner; MELROSE TOWNSHIP, a
Michigan municipal corporation; AMERITECH,
MICHIGAN CONSOLIDATED GAS CO.,
GREAT LAKES ENERGY CO,. and the following
lot owners in the Plat of Walloon Heights or
owning property within 300 feet of the premises
sought to be vacated: TRUSTEE OF THE
PRISCILLA S. RASMUSSEN TRUST; CELIA C.
MONTON; JOHN W. CARLILE, Trustee of the
JANE W. CARLILE FAMILY TRUST; JOHN B.
PICKFORD, Trustee of the GEORGE P. SCULLY
TRUST; ANN P. BURR; REBECCA R
SPANGLER; STEPHEN J. LAING and
SUZANNE R. LAING; JOHN D. SHAFER III;
THOMAS H. SHAFER; TRUSTEE OF THE
EWEND FAMILY COTTAGE TRUST; ROBERT
CULBERTSON, JR. and JOYCE W.
CULBERTSON; JOSEPH D. LONGO and
LINDA L. LONGO; KENNETH A PICKL and
MARGO L. PICKL; CAROLYN ANN
MACDONALD, Trustee of the WALLOON
LAKE HOUSE TRUST; JANET R.
CHAMBERLAIN; RICHARD C. HERMANN and
CYNTHIA B. HERMANN; ARLINE E.
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HOELSCHER; ALICE JANE SMITH;
FREDERICK WILLIAMS and FLORENCE
WILLIAMS; TRUSTEE OF THE ERB PIERCE
TRUST; GEORGE V. WHITFIELD and MAXINE
WHITFIELD; JAMES C. WHITFIELD, JR. and
DIANA WHITFIELD; and RANDALL H. LIPPS
and MARGARET C. LIPPS,
Defendant-Appellees.
Before: Zahra, P.J., and Saad and Schuette, JJ.
PER CURIAM.
In this action to vacate land, plaintiffs James and Diane Vick appeal as of right the trial
court’s grant of summary disposition for defendants pursuant to MCR 2.116(C)(4) and (C)(10).
Plaintiffs own several lots in a subdivision on Walloon Lake. A road, Howard Street, bisects
their lots and plaintiffs wish to have this road vacated. This road was dedicated by the proprietor
of the subdivision for use by the public in 1901. Plaintiffs contend that this dedication was never
properly accepted and the land in question should be vacated. Defendants assert that this is a
public road and that they accepted the dedication.
I. FACTS AND PROCEDURE
On August 15, 1901, Edwin Sweet and William Knowlton, as executors of the estate of
John McConnell, recorded the plat of Walloon Heights in the Charlevoix County Records. As
part of that recording, a platted street 300 feet long and 66 feet wide, named Howard Street1 was
dedicated to public use. The dedication was not otherwise recorded. In 1931, the Michigan
Legislature passed a bill known as the McNitt Act, MCL 247.1 et seq., which required counties
to assume jurisdiction over township road and roads specified as public in recorded plats. In
1938, as part of a statewide road study, Howard Street was determined to be part of the system of
Charlevoix county roads that were open and available for public travel at least three months out
of the year.
On April 3, 1940, pursuant to the McNitt Act, the Charlevoix County Road Commission
(“road commission”) submitted color-coded maps of the roads they had taken over as county
roads, to the state highway commissioner (“commissioner”) for the exclusive purpose of a gas
tax reimbursement calculation. The maps depicted all of the platted roads within Walloon
Heights as being certified as county roads, including Howard Street, by shading them in green
color. In 1941, the road commission again certified to the commissioner that Howard Street was
1
Howard Street was one of three platted streets that lead directly to Walloon Lake.
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part of its system of roads, and the state accepted that certification for the gas tax calculations. It
is factually significant to note that although reproductions of the certification maps were attached
to the pleadings, all are in black and white and are void of any color or shading.
The parcels of property immediately surrounding Howard Street changed owners
numerous times after the dedication. In the mid-1960’s much of Howard Street was paved by
the owners of the property adjacent to the road and was used as part of a driveway. Affidavits of
neighbors reveal that throughout much of this time, many people used Howard Street as an
access to Walloon Lake for recreational activities such as swimming, boating, fishing, and
snowmobiling. Moreover, Howard Street has never been taxed as private property by Melrose
Township (“township”), Charlevoix County or the state government.
Plaintiffs acquired an interest in parcels of land adjacent to Howard Street in August of
2000 that included lots 28, 29, 30, 50, and a portion of 51. Neither they nor their predecessors
have ever prevented the public from using Howard Street. Plaintiffs filed this action in
Charlevoix Circuit Court in an effort to have Howard Street (which runs between their lots in the
plat of Walloon Lake) vacated pursuant to Section 221 of the Land Division Act, based upon
their contention that the dedication of the street for public use was never accepted by public
authorities and that there was no reasonable objection by other lot owners in the plat to the
vacation of the street.
The complaint was answered by the road commission, the township, and the state
defendants (the Michigan Department of Natural Resources and the Michigan Department of
Consumer and Industry Services). In March 2001, plaintiffs served requests for admissions upon
the road commission and township defendants. In their initial responses, defendants admitted
that Howard Street had never been designated as a county road; that the road commission had no
record of any resolution accepting Howard Street; that Howard Street had never been taken over
by the road commission; and, that neither the road commission nor the township had ever spent
public funds on Howard Street.
However, on May 2, 2001 defendants received a packet of information from the assistant
attorney general that included maps, resolutions and charts that defendants believe document
their rightful ownership of Howard Street. Defendants immediately notified plaintiffs of this
newly discovered information which they asserted was legally significant and would change their
answers to admissions. Defendants then moved for leave to amend their answers. The trial court
granted defendants’ motion, and they were permitted to amend their answers to admissions.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4) and
(10) based on their contention that the road commission formally accepted the dedication of
Howard Street no later that 1940, pursuant to the McNitt Act. On August 16, 2002, the trial
court agreed with defendants’ arguments and concluded that Howard Street was a public street
because the dedication of 1901 was formally accepted by defendants under the 1940 McNitt
resolution. Therefore, the trial court granted defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(4) and (10). This appeal ensued.
II. ANALYSIS
A. The Amendment of Answers to Request for Admissions
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Plaintiffs argue that the trial court abused its discretion when it granted defendants leave
to amend their answers to request for admissions. We disagree.
1. Standard of Review
Trial courts have the discretion to grant or deny a party’s request to amend or withdraw
its response to a request for admission, and an abuse of discretion will only be found if an
unprejudiced person upon considering the facts on which the trial court acted would say there
was no justification or excuse for the ruling. Medbury v Walsh, 190 Mich App 554, 556-557;
476 NW2d 470 (1991).
2. Analysis
Defendants provided answers to the request for admissions on March 2, 2001 and based
their answers on the knowledge, information and belief they had at that time. When presented
with newly discovered pertinent evidence that suggested an acceptance of the 1901 dedication
had actually occurred, the road commission and township immediately notified plaintiffs and
sought to amend their previously filed answers to plaintiffs’ request for admissions.
MCR 2.312(D)(1) provides that upon a showing of good cause a trial court may allow a
party to amend or withdraw an admission.
Plaintiffs argue that the amendment to the request for admissions should have been
denied because they were not material and relevant to this action. However, the relevance and
materiality of the evidence on which defendants based their amended responses to plaintiffs’
request for admissions turned on the merits of defendants’ motion for summary disposition.
Further, the amendment did not prejudice plaintiffs because plaintiffs were immediately
informed of their existence, and the reason for the delay was inadvertent.
Given that our Supreme Court has held that an abuse of discretion is found only in
extreme cases in which the result is so palpably and grossly violative of fact and logic that it
evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Dep’t
of Transportation v Randolph, 461 Mich 757, 768; 610 NW2d 893 (2000), we conclude the trial
court did not abuse its discretion when it allowed defendants to amend their earlier answers to
requests for admissions.
B. The County’s Acceptance of Howard Street
Plaintiffs argue that the trial court erred in granting defendants’ motion for summary
disposition. They assert that defendants have not proven that the offer of dedication was
formally accepted in 1940 because defendants only produced a map of county roads with
Howard Street shaded green certifying that it was a county road for purposes of gas tax
reimbursement. Plaintiffs argue that this evidence is not sufficient to establish that there was a
formal McNitt resolution. We disagree.
1. Standard of Review
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On appeal, a trial court’s decision on a motion for summary disposition is reviewed de
novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This Court must
review the record in the same manner as must the trial court to determine whether the movant
was entitled to judgment as a matter of law. Morales v Auto-Owners Ins, 458 Mich 288, 294;
582 NW2d 776 (1998). The purpose of summary disposition is to avoid extensive discovery and
an evidentiary hearing when a case can be quickly resolved on an issue of law. Shepherd
Montessori Center Milan v Ann Arbor Twp, 259 Mich App 315, 324; 675 NW2d 271 (2003).
2. Analysis
It is undisputed that there was a dedication of a plat, including the roads adjacent to the
north shore of Walloon Lake in 1901. As part of this dedication, Howard Street was given to
public use. Plaintiffs’ right to a vacation of Howard Street depends upon whether the 1901
dedication of Howard Street for public use was accepted by defendants. Plaintiffs argue that the
grant of summary disposition by the trial court was improper because there was never any formal
acceptance of this dedication.2
When the plat of Walloon Heights was recorded, the Michigan Plat Act provided that a
dedication of land for public use was deemed to vest property rights in a city or village (or if
outside a city or village then in a township) merely by the recording of a map made in
compliance with the statute. 1839 PA, § 1, as amended by 1887 PA 309. Michigan’s plat act did
not refer to any process of acceptance by the municipality. Rather, the transfer of the fee in lands
dedicated for public use was considered complete upon a proper recording of the plat. Eyde Bros
Development Co v Roscommon County Bd of Road Com’rs, 161 Mich App 654,662; 411 NW2d
814 (1987). Such conveyances became a problem for local municipalities because they were
often recipients of land that they did not want. Thus, in Wayne County v Miller, 31 Mich 477
(1875), our Supreme Court required that dedications of public land be accepted by the local unit
of government.
More recently, In Kraus v Dep’t of Commerce, 451 Mich 420, 424; 547 NW2d 870
(1996), our Supreme Court further defined the law in relation to the dedication of land for a
public purpose. As stated in Kraus, a valid dedication requires two elements: (1) a recorded plat
clearly offering the land for public use and (2) a subsequent acceptance of the offer by a public
authority. Id. The acceptance must be timely, and it must be accomplished by a public act
“‘either formally confirming or accepting the [offer of] dedication, and ordering the opening of
such street, or by exercising authority over it, in some of the ordinary ways of improvement or
regulation.’” Id., quoting Tillman v People, 12 Mich 401, 405 (1864). The question presented in
this case is whether there was an acceptance of Howard Street by the county. Defendants claim
the county accepted Howard Street under the McNitt Act.
2
Offers of dedication may be accepted: (1) formally by resolution; (2) informally through the
expenditure of public money for repair, improvement and control of the roadway; or (3)
informally through public use. Marx v Dep't of Commerce, 220 Mich App 66, 74; 558 NW2d
460 (1996). Only the formal acceptance by resolution is at issue in this case.
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The McNitt Act authorized consolidation of the township and county road systems and
apportioned state funds for the purpose of doing so. Missaukee Lakes Land Co v Missaukee
County Road Com’n, 333 Mich 372, 375; 53 NW2d 297 (1952). As a basis for this
apportionment, the commissioner was to ascertain the total amount of highway mileage for each
township and county. Id. Under the McNitt Act, in order to qualify and be certified, a two part
test must be satisfied: 1) the roads had to be in use at least three months of the year and, 2) the
county must have taken over the road and incorporated it into its roadway system between
September 17, 1931, and July 1, 1939. Id. at 376. Road commissions were advised to delineate
those roadways that satisfied the criteria by shading them green on the maps submitted to the
commissioner for approval. Id. They were also instructed not to include any roads that did not
satisfy both provisions, because the calculation would be based upon their representations to the
commissioner. Id. To this end, road commissions were even given proposed form resolutions in
an effort to ensure the accuracy of the certifications. In April of 1940, the road commission filed
its first certification resolution, including maps, purportedly outlining in green those roads which
were taken over as part of the county road system pursuant to 1939 PA 36. The 1940 resolution
certified that all of the:
roads, streets and highways shown in green color on the attached maps, no. 1 to
16, inclusive and totals shown on accompanying mileage sheets were as of July 1,
1939, county roads in actual use for public travel at least three months each year
taken over by the Board of County Road Commissioners of the County of
Charlevoix Michigan as county roads subsequent to September 17, 1931.
Again, in 1941, the road commission certified to the state through the acknowledgement of the
total mileage of roads in their county system, and the state accepted this certification.
Significantly, the mileage of the county roads declared in the 1941 certification equals a total that
is accurate only if Howard Street is included in the county roads. Defendants assert that these
certification resolutions, drafted because of the McNitt Act and submitted for the calculation of
mileage within the county, satisfy the requirements for formal acceptance. We agree.
In Morrill v White Pigeon Twp, 467 Mich 870; 651 NW2d 919 (2002), our Supreme
Court reversed an unpublished decision of this Court (Docket no 217365, rel’d 12/11/2001) that
upheld the lower court’s grant of summary disposition based upon the trial court’s finding that a
McNitt resolution identifying a street on a map did not constitute a formal acceptance of an offer
to dedicate. In that case, the only evidence that any governmental authority accepted Stewart
Street [the street at issue] by resolution was a McNitt resolution that was passed in February
1940. The resolution indicated that all streets and highways shown in green on the attached
maps were in actual use for public travel. Almost all of the roads on the attached maps were
highlighted in green. Id. at 9. A panel of this Court concluded:
In this case, the McNitt resolution that was passed did not expressly identify
Stewart Street or Bluff Beach Plat. The general resolution was not sufficient
under current law to effect manifest acceptance of the offer. Thus, there was no
formal acceptance as a matter of law and summary disposition for plaintiff on the
issue of formal acceptance was proper. Id. at 10.
Our Supreme Court disagreed and reversed this Court’s decision:
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[T]o the extent that it affirms the grant of summary disposition to plaintiffs on the
issue of formal acceptance of Stewart Street, and REMAND to the St. Joseph
Circuit Court for further proceedings not inconsistent with this order. A McNitt
resolution that expressly identifies the platted road in dispute or the recorded plat
in which that road was dedicated is sufficient to effect acceptance of the offer to
dedicate the road to public use. Krause v Dep’t of Commerce, 451 Mich 420,
430, 547 NW2d 870 (1996). Although in this case the road in dispute is not
identified by name or by reference to the recorded plat, appellants argue that the
street is identified by a map attached to the resolution. In addition to the issues
identified by the Court of Appeals, the circuit court on remand shall reconsider
the motions for summary disposition on this question and determine whether there
is any genuine issue of material fact regarding the identification of Stewart Street
or its formal acceptance by means of the McNitt resolution.
As long as a McNitt resolution expressly identifies the street in question, the resolution
suffices as evidence of a formal acceptance of the street. In this case, the certification resolutions
of 1940 and 1941, indicate that certain roads were included in the calculation of county road
system mileage. Further, an attachment to the resolution depicts Howard Street among those
roads shaded in green that are included as part of the county road system. This case is analogous
to Morrill in that both cases involved a map submitted to the state with the street in question
shaded in green indicating that it had been taken over by the road commission. However, unlike,
Morrill, this case need not be remanded, because the 1941 certification that declared the total
mileage of the county road system included Howard Street in that calculation.
We conclude that the trial court correctly granted defendants’ motion for summary
disposition because Howard Street was specifically identified in 1940 and 1941 certification
resolutions as a road that had been taken over by the road commission. These resolutions and the
accompanying map suffice as evidence of a formal acceptance of the street. Given our
determination that a valid acceptance occurred via McNitt resolution, we need not address the
remaining issues presented on appeal.
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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