PAUL R BOYD V CHEBOYGAN COUNTY ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
FRANK MUSTAZZA and ESTHER
MUSTAZZA,
UNPUBLISHED
September 14, 2004
Plaintiffs-Appellants,
v
No. 247234
Cheboygan Circuit Court
LC No. 01-006934-CH
CHEBOYGAN COUNTY ROAD
COMMISSION,
Defendant-Appellee.
PAUL R. BOYD,
Plaintiff-Appellant,
v
No. 247235
Cheboygan Circuit Court
LC No. 02-006990-CH
CHEBOYGAN COUNTY ROAD
COMMISSION,
Defendant-Appellee.
Before: Donofrio, P.J., and White and Talbot, JJ.
PER CURIAM.
Plaintiffs appeal as of right the judgment in favor of defendant in this dispute over road
width. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Plaintiffs own property on either side of Owens Road in Cheboygan County. They
brought these actions to quiet title after defendant sought to widen the road. The trial court
found that defendant established a highway by user and granted judgment in its favor.
This Court reviews de novo the legal requirements for establishing a highway by user,
but reviews the trial court’s factual findings for clear error. Kalkaska Co Bd of Co Rd Comm’rs
v Nolan, 249 Mich App 399, 401; 643 NW2d 276 (2002).
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MCL 221.20 provides:
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 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.
Property subject to the statute is treated as impliedly dedicated to the state for public use.
Kentwood v Sommerdyke Estate, 458 Mich 642, 652; 581 NW2d 670 (1998). Highway by user
requires (1) a defined line, (2) that the road was used and worked on by public authorities, (3)
public travel and use for ten consecutive years without interruption, and (4) open, notorious, and
exclusive public use. Nolan, supra, 401-402. The statute provides for a presumptive right-ofway of 66 feet, however, this presumption may be rebutted by proof that the width of an
easement was expressly or impliedly restricted. Boone v Antrim Co Bd of Rd Comm’rs, 177
Mich App 688, 694; 442 NW2d 725 (1989).
Plaintiffs do not contest that defendant established the four required elements of highway
by user. Rather, plaintiffs argue that the act of subsequently obtaining an invalid right-of-way
from plaintiffs’ grantor precludes defendant from relying on the highway by user statute.
However, where a highway by user was established before defendant obtained an express rightof-way from plaintiffs’ grantor, plaintiffs have failed to show that the right of way precludes the
application of the statute. Once the highway by user presumption arose, the original property
owner’s action in giving an express right of way did not defeat it. The later grant of a right-ofway could not revive the grantor’s rights and was of no consequence.
Affirmed.
/s/ Pat M. Donofrio
/s/ Helene N. White
/s/ Michael J. Talbot
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