CRAIG C SMITH V LIVINGSTON COUNTY ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
CRAIG C. SMITH, CONNIE SMITH, JAMES P.
NIEMI, and LAURA A. NIEMI,
UNPUBLISHED
September 9, 2008
Plaintiffs/Counter DefendantsAppellants,
v
No. 277606
Livingston Circuit Court
LC No. 00-18130-CH
LIVINGSTON COUNTY ROAD COMMISSION,
PUTNAM TOWNSHIP, LIVINGSTON COUNTY
DRAIN COMMISSION, GENEVIEVE
JAKUBUS, MAUREEN JAKUBUS, PERI
GAGALIS, PATTY JO GAGALIS, HARRY
COLLINS, VIRGENE DOHERTY, LORAINE
HARWICK, LEO K. LUCKHARDT, LORENA
K. LUCKHARDT, GERALD RICHARDS,
KAREN RICHARDS, JACK I. COLEMAN,
CREAGH MILFORD, KATHLEEN MILFORD,
RICHARD HAAS, WILLIAM PEET, SHARON
PEET, MICHAEL MCGUIRE, TRESSA
MCGUIRE, HAROLD A. HARTMAN, SHARON
K. HARTMAN, NELSON BAUDER, BERNARD
C. SHEEHAN, and RONALD C. BELL,
Defendant,
and
STATE TREASURER,
Defendant-Appellee,
and
PAUL KING, SANDRA M. KING, JOAN F.
PARKS, JAMES K. FETT, MARGARET A.
FETT, JANET HAMLIN-O’BRIEN, and MARY
SHEEHAN MAUVIZ,
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Defendants-Counter Plaintiffs,
and
MICHAEL GRZESIK and CAROL GRZESIK,
Defendants/Counter PlaintiffsAppellees.
Before: Donofrio, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
Plaintiffs appeal as of right the grant of declaratory relief to defendants in this real
property action regarding Alley No. 5 in Baughn Bluff platted subdivision on Portage Lake in
Livingston County. Plaintiffs filed suit in September 2000 to modify the plat, to vacate the alley,
which is adjacent to their property, and declare the offer of public dedication of the alley
withdrawn. Because the trial court followed this Court’s directive and properly applied the law
to the facts on remand; and, because the encroachments at issue were minor there was no
manifest injustice in declining to declare partial withdrawal of public dedication, we affirm.
This case involves a prior appeal by defendants Grzesik from an original trial court
decision.1 Smith v Livingston Co Drain Comm’n, unpublished per curiam opinion of the Court
of Appeals, issued May 5, 2005 (Docket No. 251523) (“Smith I”). Defendants’ main argument
on prior appeal centered on MCL 560.255b, regarding the presumption of acceptance of land
dedicated to public use and the rebuttal of that presumption. The statute states:
(1) Ten years after the date the plat is first recorded, land dedicated to the
use of the public in or upon the plat shall be presumed to have been accepted on
behalf of the public by the municipality within whose boundaries the land lies.
(2) The presumption described in subsection (1) shall be conclusive of an
acceptance of dedication unless rebutted by competent evidence before the circuit
court in which the land is located, establishing either of the following:
(a) That the dedication, before the effective date of this act and before
acceptance, was withdrawn by the plat proprietor.
1
Originally, defendants included, in addition to those listed above, property owners within the
plat who used the alley for access to the lake. A stipulated order for summary disposition
granted defendant property owners within the plat a permanent right to use the alley, and
therefore their rights were not at issue at the bench trial and are not at issue here.
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(b) That notice of the withdrawal of the dedication is recorded by the plat
proprietor with the office of the register of deeds for the county in which the land
is located and a copy of the notice was forwarded to the state treasurer, within 10
years after the date the plate of the land was first recorded and before acceptance
of the dedicated lands.
With respect to the application of the presumption, this Court stated the following in Smith I:
In its order and judgment after the filing of the motion for reconsideration,
the trial court does not address the presumption of acceptance occurring on the
effective date in 1978 of MCL 560.225b. Rather, the trial court merely states that
the offer of dedication was withdrawn before public acceptance. We presume that
the trial court was relying on MCL 560.225b in its reference to acceptance and
thus no error is present regarding whether the statute applied. Thus, the issue is
whether the offer of the plattors was withdrawn before 1978 by the private acts of
plaintiffs and their predecessor. From our review of the record, we conclude that
whether the offer was withdrawn is a disputed fact question that requires
resolution at trial rather than by summary disposition. As previously noted, while
there is evidence that plaintiff’s [sic] acquiesced in use of the alley by others,
plaintiffs have presented evidence of a number of acts arguably “inconsistent with
public ownership.” Consequently, we reverse and remand for trial on the question
of withdrawal only. [Smith I, supra at p 5 (citation omitted).]
Smith I also stated that evidence presented by the Grzesiks that there was informal public
acceptance was insufficient to circumvent the statutory presumption and rebuttal:
The Grzesiks also argue that public acceptance occurred informally,
through township involvement with, or public use of, the alley. However, we find
the township’s supervisor’s notation regarding use of the streets and alleys in the
1941 Supervisor’s Plat of Beulah Beach, which redrew a portion of the Baughn
Bluff plat and on which the Grzesiks rely, to be clearly insufficient to establish
acceptance, and note that all other township involvement with the alley cited by
the Grzesiks occurred after the presumed acceptance in 1978 pursuant to MCL
560.255b. Moreover, as found by the trial court, “the supermajority of persons
that have used the alley were either lot owners inside the plat, lot owners outside
the plat that believed they were located within the plat or invited individuals of lot
owners.” Such is similarly insufficient to establish informal acceptance by public
use.” [Id. at p 4 n 2 (citations omitted).]
Ultimately, on remand, the trial court found in favor of defendants and deemed the alley
accepted by the public under the statutory presumption in MCL 560.255b. The trial court found
that, given that plaintiffs did not exclude the public from using the alley, plaintiffs had not
withdrawn the offer of dedication to the public.
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Plaintiffs contend that the trial court violated the law of the case. “The law of the case
doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court
and all lower tribunals with respect to that issue.” Higgins Lake Property Owners Ass’n v
Gerrish Twp, 255 Mich App 83, 91; 662 NW2d 387 (2003). “[I]f an appellate court has passed
on a legal question and remanded the case for further proceedings, the legal questions thus
determined by the appellate court will not be differently determined on a subsequent appeal in
the same case where the facts remain materially the same.” Grievance Administrator v Lopatin,
462 Mich 235, 259; 612 NW2d 120 (2000) (internal citation omitted). Application of the law of
the case doctrine is a question of law reviewed de novo on appeal. Kasben v Hoffman, 278 Mich
App 466, 470; 751 NW2d 520 (2008).
Plaintiffs specifically assert that in its prior decision, this Court made a legal ruling
binding the trial court to make a decision based on the sufficiency of plaintiffs’ uses of the alley
that were inconsistent with public ownership, and that precluded the trial court from making its
decision based on plaintiffs’ failure to exclude the public. Plaintiffs support this argument by
directing us to Judge Neff’s partial concurrence, partial dissent in the prior appeal. Judge Neff
stated as follows: “In the instant case, plaintiffs have failed to show inconsistent use of Alley
No. 5 to the extent necessary to demonstrate withdrawal of the offer to dedicate by either
themselves or their predecessors.” Smith I, supra at p 3 (Neff, J., concurring in part, dissenting
in part). Plaintiffs interpret this passage to mean that the majority decided the legal question of
what constitutes withdrawal. They argue that the majority concluded that plaintiffs could prevail
if they show use of the alley inconsistent with public ownership to the extent necessary to
demonstrate withdrawal, precluding a conclusion based solely on whether plaintiffs excluded the
public.
Although plaintiffs argue that this Court implicitly ruled that failure to exclude the public
from the alley cannot be the controlling factor in deciding whether there was a withdrawal of an
offer of public dedication, the language of the prior decision does not indicate such a legal ruling.
In fact, this Court explicitly stated that there was a “disputed fact question that requires
resolution at trial” on the question of whether the offer of dedication was withdrawn. Smith I,
supra at p 5. “When this Court reverses a case and remands it for a trial because a material issue
of fact exists, the law of the case doctrine does not apply because the first appeal was not decided
on the merits.” Brown v Drake-Willock International, Ltd, 209 Mich App 136, 144; 530 NW2d
510 (1995).
Plaintiffs fail to recognize that Smith I did not preclude consideration of, or direct the trial
court regarding how much weight it should afford the failure to exclude. The only directive
given to the trial court was that it look to the facts of the case, including acts of acquiescence of
public use as well as “acts arguably ‘inconsistent with public ownership.’” Smith I, supra at p 5,
quoting Kraus v Dep’t of Commerce, 451 Mich 420, 431; 547 NW2d 870 (1996). This was not a
legal ruling that bound the trial court or this Court on appeal and does not trigger application of
the law of the case doctrine.
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Next, plaintiffs argue that the trial court erred in denying their request for partial vacation
of the alley with respect to encroachments. Plaintiffs did not preserve this issue for our review.2
This Court may review an unpreserved issue “if the failure to consider the issue would result in
manifest injustice, if consideration is necessary for a proper determination of the case, or if the
issue involves a question of law and the facts necessary for its resolution have been presented.”
Smith v Foerster-Bolster Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006).
Accordingly, we review this issue for manifest injustice. Id.
Although plaintiffs offer no description of the encroachments at issue in their brief on
appeal, we presume plaintiffs are referring to the cottage, porch, driveway, pump house, and the
neighbors’ sheds. The trial court stated on the record that the cottage and the pump house were
“relatively minor . . . and frankly somewhat difficult to spot . . . in some areas.” One of the sheds
was built on cement blocks and one was sitting directly on the ground. The trial court also stated
that the sheds “were not certainly major structures” and were “somewhat readily removed.” The
driveway is apparently used by people who want to gain access to the lake, and is thus not
exclusive of public use, and there is no evidence that the pump house was maintained for private
use. Despite its statements on the record, ultimately, the trial court declined to decide the
encroachment issue because plaintiffs had not brought an adverse possession claim. After
reviewing the record, we conclude that because the encroachments at issue were minor, there
was no manifest injustice in the trial court declining to address the encroachment issue and
declining to declare partial withdrawal of the public dedication.
This Court in Smith I directed that “if at trial the decision is that the dedication for public
use was withdrawn before acceptance, the trial court must divide ownership between the
adjoining property owners of Lots 52 and 53, subject to the easement of the subdivision lot
owners.” Smith I, supra at p 6. Because the trial court did not find that the dedication for public
use was withdrawn before acceptance, or partially withdrawn, the trial court need not divide
ownership.
Finally, although MCL 560.226 was referenced but not argued below, its dictates need
not be applied and a new plat drawn up according to its provisions.
Affirmed.
/s/ Pat M. Donofrio
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
2
Although this Court remanded the case on the issue of withdrawal, the trial court was under no
obligation to make a determination on something that was not requested at trial. The trial court
is permitted to grant relief to an entitled party even if that party did not plead such a request, but
is not obligated to do so. MCR 2.601(A). Here, the trial court declined to address the
encroachments because there was no claim by plaintiffs regarding adverse possession. Similarly,
there was no claim by plaintiffs or partial acceptance/withdrawal of the alley dedication and thus
it was properly within the discretion of the trial court not to make a determination.
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