IN RE PETITION OF CALHOUN COUNTY TREASURER
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STATE OF MICHIGAN
COURT OF APPEALS
IN RE PETITION OF CALHOUN COUNTY
TREASURER.
CALHOUN COUNTY TREASURER,
UNPUBLISHED
November 16, 2010
Petitioner-Appellee,
v
WAYNE SWAFFORD and JOAN SWAFFORD,
No. 293272
Calhoun Circuit Court
LC No. 08-001834-CZ
Respondents-Appellants.
Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
In this foreclosure action for failure to pay real property tax, respondents appeal as of
right the trial court’s order that denied their objections to the foreclosure judgment and amended
that judgment. Respondents also challenge the trial court’s denial of their motion for
reconsideration. We affirm.
This case stems from respondents’ refusal to pay the expenses of mowing an unpaved
strip of real property that lies between their two vacant parcels and the blacktopped portion of
12th Street in the West Side Park subdivision in the City of Springfield (the City). According to
the subdivision’s plat, 12th Street is 50 feet wide and is dedicated to the public. However, the
blacktopped portion of 12th Street is not 50 feet wide. An unpaved strip lies on the area
designated on the plat as 12th Street. The unpaved strip abutting respondents’ parcels is
approximately 11 feet wide. After the City mowed the unpaved strip in May 2006, it sent
respondents a bill. Respondents refused to pay, and the City assessed the mowing costs as part
of respondents’ 2006 summer property tax bill.
Springfield Ordinance, § 18-62 imposes a duty on the owners of lots and parcels to
destroy noxious weeds and female box elder trees that lie on their lots and parcels. Respondents
argued below that they do not own the unpaved strip; thus, they were under no obligation to
destroy noxious weeds and female box elder trees growing thereon. Following an evidentiary
hearing, the trial court held that “the owner of land which is bounded on a public street owns in
fee simple to the center of that street, subject to the easement of public way,” and because
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respondents “own the property which was mowed (subject to a public easement) the City had the
authority to assess these costs to them.”
On appeal, respondents claim that the trial court erred by applying law regarding
common-law dedication where the plat of the West Side Park subdivision involved a statutory
dedication. In particular, respondents maintain that if properly considered under statutory
dedication principles, the City is the owner of the at issue strip of land and consequently, they
cannot be held responsible for mowing it.
“A trial court’s factual findings are reviewed for clear error and its conclusions of law are
reviewed de novo.” Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 127; 737
NW2d 782 (2007).
Springfield Ordinance, § 18-62 provides:
It shall be the duty of the owner of every lot of parcel of land in the city on
which noxious weeds and female box elders trees are found growing to destroy
such weeds and trees before they reach a seed-bearing stage and to prevent such
weeds from perpetuating themselves. . . . [Emphasis deleted.]
Springfield Ordinance, § 18-64 provides the consequences of an owner’s failure to destroy
noxious weeds. It provides:
If an owner, agent or occupant of property upon which noxious weeds or
female box elder trees are growing shall refuse or neglect to destroy noxious
weeds or female box elder trees within five days after receiving notice to do so,
the code official may cause the destruction of such noxious weeds or female box
elder trees to be done. All costs pertaining to the destruction of such noxious
weeds or female box elder trees by the city shall be the personal obligation of the
owner, agent or occupant and subject to civil collection. Alternatively, the city
may assess against the property on the next general assessment roll of the city.
[Emphasis deleted.]
The rules of contract interpretation apply to the interpretation of ordinances. Gora v City of
Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). Thus, if the language of the City’s
ordinances is clear and unambiguous, the ordinances must be enforced as written. Diamond v
Witherspoon, 265 Mich App 673, 684; 696 NW2d 770 (2005).
Respondents’ assertion that the streets in the subdivision plat were dedicated to the public
pursuant to statute, rather than by common law, is not contested by petitioner. What is at issue is
whether, because the streets in the plat were dedicated pursuant to statute, the City, rather than
respondents, owns the unpaved strip of 12th Street, such that respondents had no duty to destroy
the noxious weeds and female box elder trees growing on the unpaved strip.
The distinction between statutory dedication and common-law dedication is that
dedication under the relevant plat statute “‘vest[s] the fee in the county, in trust for the
municipality intended to be benefited, whereas, at common law, the act of dedication created
only an easement in the public.’” Kalkaska v Shell Oil Co (After Remand), 433 Mich 348, 354 n
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11; 446 NW2d 91 (1989), quoting Grandville v Jenison, 84 Mich 54, 65; 47 NW 600 (1890),
aff’d 86 Mich 567 (1891). When the public has an easement in a street, the “owners of land
abutting [the] street are presumed to own the fee in the street to the center.” Thies v Howland,
424 Mich 282, 291; 380 NW2d 463 (1985). However, even if the streets have been dedicated for
public use pursuant to statute, the governing authority only obtains “nominal title” to the streets;
it “acquires no beneficial ownership of the land.” Kalkaska, 433 Mich at 357-358 (quotations
omitted) (holding that the county did not have any propriety interest in, and could not sell, the
gas and oil lying beneath the streets that were dedicated for public use pursuant to the relevant
plat acts). The ownership rights not held by the governing authority are held in fee by the
owners of land abutting the street. See Kalkaska v Shell Oil Co (On Remand), 163 Mich App
534, 536; 415 NW2d 267 (1987), aff’d 433 Mich 348 (1989) (holding that the rights to the oil
and gas underlying the platted streets were held in fee by the owners of abutting lots or those
persons who reserved the rights in prior conveyances).
Respondents’ two vacant parcels abutted 12th Street. Accordingly, respondents owned in
fee the rights to the street that were not held by the City. Under these circumstances, we
conclude that, for purposes of Springfield Ordinance, § 18-62, respondents were the owner of the
unpaved strip of 12th Street that abutted their two lots. Therefore, we affirm the trial court’s
holding that, pursuant to the ordinance, respondents had a duty to destroy the noxious weeds and
female box elder trees growing on the unpaved strip. See Gleason v Dep’t of Transp, 256 Mich
App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling may be upheld on appeal where the right
result issued, albeit for the wrong reason.”).
Respondents also raise a number of arguments related to the trial court’s findings of fact
and legal conclusions. None of these arguments have any merit.
First, respondents complain that the City owns the unpaved strip. Respondents rely on
the quit claim deed they received for the parcels, which states that they were receiving title to
lots 84 and 85 in the West Side Park subdivision, and a letter from the City manager, in which
the manager wrote that the City owned 12th Street. Respondents’ reliance on either document to
prove that the City owned the unpaved strip is misplaced. The rights to property are not
established by letters of correspondence, but by deeds to the property and other recorded
documents. In addition, when respondents obtained title to their parcels through the quit claim
deed, they received all rights incident to the ownership of their two lots.
Second, respondents contend that the trial court’s ruling, if left unchallenged, would
result in a clear violation of constitutional prohibitions against involuntary servitude. See US
Const, Am XIII and Const 1963, art 1, § 9. “Involuntary servitude is defined in federal case law
as the coerced service of one person for another through the use, or threatened use, of law,
physical force, or some other method that causes the laborer to believe that the laborer has no
alternative to performing the service.” Blair v Checker Cab Co, 219 Mich App 667, 673; 558
NW2d 439 (1996). Because respondents had some alternatives to mowing the unpaved strip,
such as paying the City to mow it, even if distasteful, there is no involuntary servitude. Id.
Third, respondents insist that they complied with the local weed abatement ordinance,
because they mowed their parcels. As discussed previously, however, respondents are the
owners of the unpaved strip for purposes of Springfield Ordinance, § 18-62. At the evidentiary
hearing, Wayne Swafford admitted that he never mowed the unpaved strip, notwithstanding
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several notices from the City demanding him to do so. Accordingly, respondents failed to
comply with the ordinance.
Fourth, respondents believe that their timely tendered payment for all taxes on their
parcels (but not the mowing costs) to the City and the City’s subsequent rejection constituted a
discharge. Respondents rely on a provision in Article 3 of the Uniform Commercial Code
(UCC) regarding tender of payment. See MCL 440.3603(2). We are not convinced that the
issuance of a summer property tax bill constitutes a commercial transaction such that the UCC
provision applies. See MCL 440.1102(2). Even if the UCC applied, the summer property tax
bill is not an “instrument,” see MCL 440.3104(1), (2); thus, MCL 440.3603(2) is inapplicable.
Fifth, respondents argue that there was no authority for the City to assess mowing costs
as a tax. Pursuant to MCL 247.64(2), the Legislature granted the City the authority to enact and
enforce its weed abatement ordinance, including authority to place liens for costs incurred by the
City for failure of property owners to destroy weeds. The Legislature further authorized the City
to enforce such liens “by ordinance passed by the governing body.” Id. In its relevant
ordinance, the City opted to “assess against the property [the costs incurred by the City to
destroy the weeds] on the next general assessment roll of the city.” The Legislature clearly
authorized the City to impose a duty on property owners to destroy noxious weeds or female box
elder trees, to destroy such weeds when the property owners failed to do so, to assess any
expenses incurred by the City to the property owners, and create a lien against the property in the
amount of the expenses, and to then enforce the lien, including “by ordinance passed by the
governing body of the . . . city.” Respondents’ argument is without merit.
Sixth, respondents present an unpreserved claim that the mowing fee constituted an
improper tax contrary to the Headlee Amendment. See Const 1963, art 9, § 31. We find it
unnecessary to address the alleged Headlee violation or even address whether the Amendment
applies, because respondents failed to comply with the one-year statute of limitation applicable
to Headlee Amendment claims. See MCL 600.308a(3).
Finally, respondents complain that the trial court abused its discretion in denying their
motion for reconsideration. See Shawl v Spence Bros, Inc, 280 Mich App 213, 218; 760 NW2d
674 (2008). Respondents’ allegations of error regarding the trial court’s ruling merely presented
the same issues ruled on by the trial court and other issues that did not constitute palpable errors.
MCR 2.119(F)(3). The trial court did not abuse its discretion in denying respondents’ motion for
reconsideration, where the ruling was within a range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Affirmed. Petitioner, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
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