ALFRED VILLADSEN V MASON CNTY ROAD COMMAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ALFRED VILLADSEN, DONALD VILLADSEN,
MARILYN VILLADSEN, and JACK
July 19, 2005
September 27, 2005
Mason Circuit Court
LC No. 02-000348-CH
MASON COUNTY ROAD COMMISSION,
Official Reported Version
DEPARTMENT OF NATURAL RESOURCES
and MASON COUNTY DRAIN
Before: O'Connell, P.J., and Schuette and Borrello, JJ.
Plaintiffs appeal as of right an order in which the trial court held that a particular section
of Darr Road that is located in Sherman Township in Mason County and that abuts plaintiffs'
property is a highway by user under MCL 221.20. We affirm.
At issue in this case is ownership of a one-mile section of Darr Road. Darr Road is a
north-south road that the trial court characterized as "an established but intermittent section line
road [that extends] for 19 or 20" miles. The disputed portion of the road lies between Fountain
Road and Mavis Road, which are both east-west roads, and it begins one-quarter mile south of
Fountain Road and ends one-quarter mile north of Mavis Road. The one-quarter mile section of
Darr Road located south of Fountain Road and extending to the beginning of the disputed
portion of the road is an improved county road. The Lincoln River bridge is located on this onequarter mile section of the road. Plaintiffs do not contend that this one-quarter mile section of
Darr Road or the one-quarter mile section immediately north of Mavis Road is not a public road.
The dispute is limited to the one-mile section described above.
Plaintiff Alfred Villadsen1 owns approximately 400 acres of land that borders the
northern portion of the disputed section of Darr Road to the east. Plaintiff Jack Mickevich owns
approximately 80 acres of land that borders the southern portion of the disputed section of Darr
Road to the west. While plaintiff Villadsen uses the portion of Darr Road in dispute to gain
access to his property, plaintiff Mickevich does not.
Although a small portion of Darr Road is paved, most of it is a dirt and gravel road, with
the exception of the approximately one-mile section that is the subject of the dispute in this case.
The disputed section of the road was described at trial as a two-track road. A Mason County
map labels the disputed portion of the road a trail. The disputed portion of Darr Road is not
paved and, for the most part, is not covered with gravel. Moreover, it is undisputed that at
certain wet times of the year, the portion of the road becomes temporarily impassable because of
the existence of the two wet areas. However, over the years, detours have developed around
both wet areas. Testimony at trial revealed that for years people have been getting stuck in the
wet areas of the disputed portion of the road. One of the wet areas is near plaintiff Alfred
Villadsen's property on the northern portion of the road in dispute. The other wet area, which is
known as the blueberry bog, is larger and poses greater difficulty for vehicles attempting to pass
than the first wet area; the blueberry bog is located more to the south-east section of the disputed
portion of the road.
There was testimony that since the 1950s there have been "dead end," "no outlet," or
"road closed" signs on or near the disputed portion of Darr Road at different times. Testimony
revealed that defendant road commission had placed "road closed" signs on the disputed portion
of the road in 2002, and these signs were present at the time of trial. Evidence also established
that there were "no outlet" signs on or near the disputed portion of the roadway at the time of
trial. However, the record was unclear regarding who had placed the "no outlet" signs or any of
the other signs that had been placed on or near the disputed roadway over the years.
On July 30, 2003, plaintiffs filed a complaint seeking to quiet title to the road in question
and enjoin defendants from entering the property. Defendants each filed an answer and
affirmative defenses, arguing, among other things, that the disputed portion of Darr Road was a
Plaintiffs Donald and Marilyn Villadsen are Alfred Villadsen's parents. They owned Alfred's
home and real property from 1931 until 1977. At the time of trial, they lived across from Alfred
on the disputed portion of Darr Road.
public road either under the highway-by-user statute, MCL 221.20, or that the road had been
created by dedication and acceptance. In addition, defendant road commission filed a third-party
complaint against plaintiffs, Sherman Township, other individuals who owned property near the
disputed portion of Darr Road, the Department of Natural Resources, and the Mason County
Drain Commissioner, seeking a declaratory judgment that the disputed portion of Darr Road was
a public highway, either through dedication and acceptance or under the highway-by-user
The trial court issued an opinion and order finding that defendants established the four
elements necessary to conclude that the portion of Darr Road in question was a highway by user
under MCL 221.20.2
Plaintiffs argue that the trial court erred in holding that the one-mile portion of Darr Road
in dispute was a public road under the highway-by-user statute. We disagree.
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). A finding is clearly erroneous if the
reviewing court is left with the definite and firm conviction that a mistake has been made. Id.
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 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 or quarter 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.
The highway-by-user statute treats property subject to it as impliedly dedicated to the
state for public use. Kalkaska Co, supra at 401. "'Highway by user' is a term that is used to
describe how the public may acquire title to a highway by a sort of prescription where no formal
dedication has ever been made." Kent Co Rd Comm v Hunting, 170 Mich App 222, 230; 428
NW2d 353 (1988). Establishing a public highway pursuant to the highway-by-user statute
The order also addressed defendant's third-party complaint. As it relates to plaintiffs, the order
simply effectuated plaintiffs' stipulation on the record that the one-quarter mile sections of Darr
Road just south of Fountain Road and just north of Mavis Road were public roads under the
highway-by-user statute. Plaintiffs do not appeal this portion of the order.
requires four elements: (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. Kalkaska Co, supra at 401-402. The burden of proof rests
with the governmental agency claiming a highway by user. Cimock v Conklin, 233 Mich App
79, 87 n 2; 592 NW2d 401 (1998). If all four elements are established, MCL 221.20 raises a
rebuttable presumption that the road is four rods, or 66 feet, wide. Kent Co, supra at 231.
Regarding the first element, plaintiffs contend that the existence of the two wet areas on
the disputed portion of Darr Road preclude a finding that there was a defined line because the
existence of the wet areas requires persons traversing the road to take detours that extend outside
the right-of-way. In addition, plaintiffs contend that roads that change with the elements do not
have a defined line. The trial judge noted in his opinion that he personally visited and observed
the disputed portion of Darr Road on September 8, 2003. According to the trial judge's opinion,
based on his personal observation, the disputed portion of the road "visually appears to run in a
true and straight north/south line across Plaintiff 's farm property and in a true straight line south
through the wetland area and it continues as a straight line through the woods, across the
blueberry bog area, all the way to Mavis Road." The trial court specifically stated that "the
roadbed in the wetland was distinctly visible." In addition, the trial court characterized any
"meandering" of the road as being "minimal" and not exceeding "four or five feet in direction."
Regarding the detours around the wet areas, the trial court observed that, although there was a
two-track bypass around the smaller wet area that carried "virtually all of the present traffic," the
detour was a "trail of convenience" that "does not negate the fact that the roadbed is easily
visible and available for use during dry periods." In addition to his personal observations of the
area in dispute, the trial judge also relied on aerial photographs that were submitted as exhibits in
concluding that the section of the roadway in dispute was defined despite the existence of
bypasses around the wet areas.
In order to satisfy the defined line element of a highway by user, there must be "a defined
line of travel with definite boundaries . . . ." Rigoni v Michigan Power Co, 131 Mich App 336,
343; 345 NW2d 918 (1984). In Kalkaska Co, supra at 402, after reviewing the aerial
photographs relied upon by the trial court in concluding that there was a defined line, this Court
held that clear visibility in aerial photographs was sufficient to prove the existence of a defined
line. Similarly, in this case, after reviewing the exhibits relied upon by the trial court, although,
as the trial court observed, there are "fade-out areas not as readily detected via the aerial
[photographs]," we are convinced that the trial court did not clearly err in finding the existence
of a defined line in this case. We defer to the trial court's superior ability to determine whether
the roadway was defined inasmuch as the trial judge personally observed the disputed portion of
the roadway and the detours. "As trier of the facts, a trial judge has wide discretion in his
determination of the facts." Keller v Locke, 62 Mich App 591, 592; 233 NW2d 666 (1975). It is
particularly inappropriate for this Court to substitute its judgment on a finding such as this when
the trial judge personally observed the disputed section of the roadway in question.
Plaintiffs argue that roads that change with the elements do not have a defined line. In
support of this argument, plaintiffs rely on the Supreme Court's decision in Thunder Mountain
Hts Land Corp v Van Buren Co Rd Comm, 342 Mich 88; 68 NW2d 765 (1955). In Thunder
Mountain, the Supreme Court refused to hold that a road was a public road in part because the
roadway, which, like the roadway in this case was also characterized by some testimony as being
a trail, ran alongside a river and overflow from the river caused the road not to follow a "definite
or established route." Id. at 90. We reject plaintiffs' reliance on Thunder Mountain because the
facts of Thunder Mountain are distinguishable from the facts of this case. In Thunder Mountain
the course of the roadway changed over the years because of the overflow from the river,
whereas, in this case, the existence of the wetlands has not changed the course of the roadway;
rather, the wetlands merely require the taking of detours at certain times of the year. The
roadway in this case, unlike the roadway in Thunder Mountain, follows a "definite or established
route" despite the detours. Id.
Regarding the second element necessary to establish a highway by user, plaintiffs argue
that infrequent and minor maintenance will not make a public highway out of a private road.
According to plaintiffs, there are only three documented instances of public work on the portion
of the roadway in question, and this is insufficient to establish that the road was used and worked
on by public authorities. Moreover, plaintiffs contend that the fact that the portion of the road in
dispute is not reasonably passable is evidence that defendant road commission's use and work on
the disputed road was not sufficient to establish this element of a highway by user. Again, we
Plaintiffs are correct that public authorities must engage in more than infrequent, minor
maintenance to satisfy this element of a highway by user. See Keller, supra at 592-593.
However, the nature of the road must also be considered in determining whether this element is
satisfied. See Pulleyblank v Mason Co Rd Comm, 350 Mich 223, 229; 86 NW2d 309 (1957).
Because the disputed portion of the road in question was a quiet country two-track road with
only a minimal amount of traffic, defendant road commission's work on the road was not
required to be extensive to satisfy the public work element of a highway by user. "Work on
country roads . . . is adjusted also to the needs of local traffic and local inhabitants." Id. While
we recognize that the work done by defendant on the portion of the road in dispute was not
extensive, given the nature of the road, defendant was not required to expend large amounts of
money improving and maintaining it or large amounts of time working on it to satisfy this
element of a highway by user.
Moreover, plaintiffs' contention that the trial court could only consider defendants' use
and work on the disputed portion of Darr Road in determining whether defendants established
this element of a highway by user is incorrect. In fact, the trial court was permitted to consider
the maintenance efforts and work directed at areas of Darr Road that are not in dispute rather
than limiting its concentration to the one-mile section of Darr Road that is in dispute. "'It is not
essential that every part of a highway should be worked in order to evidence the intention of the
public authorities to accept and maintain the entire highway.'" Kalkaska Co, supra at 402,
quoting Neal v Gilmore, 141 Mich 519, 527; 104 NW 609 (1905). Therefore, the trial court did
not err in considering work performed by defendants on portions of Darr Road outside the
disputed portion of the roadway in this case.
Plaintiffs argue that establishing the second element of a highway by user requires
defendant to maintain the road in a manner that renders it reasonably passable. A party asserting
a highway by user is required to show acceptance of the road in question; however, the degree of
maintenance required to demonstrate such acceptance is merely enough to keep the road in a
"reasonably passable condition." Boone v Antrim Co Bd of Rd Comm'rs, 177 Mich App 688,
694; 442 NW2d 725 (1989). Defendant does not contest that the section of the roadway in
question was not always passable. At trial, there was testimony that the road sometimes
becomes temporarily impassable during certain wet times of the year and that vehicles
attempting to travel over the road would sometimes become stuck. There was also testimony
that mud boggers,3 who were prone to driving on the disputed section of the roadway,
contributed to the impassability of the road.
In its opinion, the trial court observed that the portion of Darr Road in dispute "would not
be passable in places during the spring and possibly into the summer due to snow melt off and
spring rains and at times in the late fall due to November rains at the location of the wetland
marsh and the bog area." The trial court opined that one would need a four-wheel-drive vehicle
to successfully pass through the bog area. Nevertheless, the trial court, relying on the Supreme
Court's opinions in Indian Club v Lake Co Rd Comm'rs, 370 Mich 87; 120 NW2d 823 (1963);
Pulleyblank, supra; Alton v Meeuwenberg, 108 Mich 629; 66 NW 571 (1896), characterized the
existence of the two wet areas as "a localized problem" that "would not defeat a finding that
there has been public user."
We hold that the disputed portion of the roadway was reasonably passable. Our Supreme
Court has concluded that roadways are reasonably passable even when the weather renders the
roadway temporarily impassable or when a detour is necessary to render a roadway passable. In
Indian Club, supra, at 91, our Supreme Court held that a "trail" was reasonably passable, despite
the fact that it was not passable "after the winter snows." Similarly, the Supreme Court's
decision in Pulleyblank supports the conclusion that the existence of a detour would not preclude
a finding of a highway by user. In Pulleyblank, supra at 231, the Supreme Court stated:
At the trial some effort was made by appellants to show that the Benson
road, at a certain point, really included a detour . . . , the theory (disputed by
defendants) being that Benson road itself was always impassable at this point and
that detour was necessary. This theory was apparently not persuasive to the
chancellor . . . and we are not persuaded he was in error therein.
In light of the Supreme Court's decisions in Indian Club and Pulleyblank and the fact that
the trial judge personally observed the wet areas and the detours and determined that the section
of the roadway was reasonably passable despite the existence of the wetlands, we conclude that
Mud bogging was described in the record as a recreational activity in which people put extra
large tires on their vehicles and then drive them through the mud.
the trial court did not clearly err in concluding that the portion of Darr Road in dispute was
Regarding the final requirements of a highway by user that there be open, notorious, and
exclusive public travel and use for ten consecutive years, plaintiffs argue that the existence of
"road closed," "dead end," and "no trespassing" signs posted on or near the disputed portion of
the roadway since the 1950s means that any use of the disputed portion of Darr Road would
constitute a trespass and would be insufficient to establish the public use element of a highway
by user. We disagree.
The public use element "requires evidence of use of the roadway claimed to be a highway
by user by members of the general public, not merely by employees of a governmental entity, on
a repeated basis for the requisite ten-year period." Cimock, supra at 87 (emphasis in original).
However, "this does not require constant or continuous use by the general public over the course
of a ten-year period." Id. at 87 n 3. Moreover, the law does not fix the number of people who
must travel upon a road to satisfy this element. Kalkaska Co, supra at 403. "[I]t is sufficient if
the road was traveled as much as the circumstances of the surrounding population and their
business required." Id. Furthermore, a road used by the public for gaining access to areas for
hunting and recreation may satisfy the public use requirement. Id. However, the road must be
used by members of the general public and not merely the friends and family of people living on
the road. See Cimock, supra at 87-88.
The trial court found that the public's use of the portion of the road in question satisfied
the last two elements necessary to establish a highway by user. Specifically, the trial court noted
that the record was "replete with examples of hunter usage, horseback riding, snowmobile riding,
cross-country skiers, four-wheel drive vehicle usage, and bog runner usage" and concluded that
"public usage has been open and notorious and although not high numerically, said farming and
recreational usage has been shown to have lasted from the 1930's until the present."
We find that the record supports the trial court's assertion that the final two elements
necessary to establish a highway by user were present. Ron Campbell, who owned plaintiff
Alfred Villadsen's property from 1977 to 1997, testified that during that time, he saw people use
the portion of Darr Road in dispute for deer and raccoon hunting, horseback riding,
snowmobiling, and bog running. In addition, Campbell testified that he farmed the property he
owned at the time and that buyers would come to his farm to purchase oat and wheat seed, hay,
and calves. Although, as the trial court observed, the number of people who traversed the road
was not high, the law does not fix the number of people who must travel upon a road to satisfy
this element. Roebuck v Mecosta Co Rd Comm, 59 Mich App 128, 131; 229 NW2d 343 (1975).
We hold that the portion of Darr Road in dispute was traveled as much as the circumstances of
the surrounding population, and their business, required. Id. The only evidence of any business
was Campbell's testimony regarding members of the public coming to his farm to purchase
items. Other than the small amount of business traffic generated by Campbell's farm, the
disputed roadway was a quiet country two-track road, which was used largely by the public for
recreational purposes. Such recreational use is sufficient to satisfy the public use element. Id.
Given the character of the road and the circumstances of the surrounding population, there was
sufficient public use of the disputed roadway to satisfy the public use element of a highway by
Furthermore, we reject plaintiffs' contention that the existence of "road closed," "dead
end," and "no outlet" signs on the disputed roadway or near the ends of the disputed roadway
negates this element of highway by user. According to plaintiffs, as a result of the placement of
the "road closed" signs, any member of the public who traveled on the disputed portion of the
road was a trespasser. Plaintiffs further contend that because of the signs, the public could not
legally use the disputed roadway because it was closed to the public. There were also "no outlet"
signs in place on each end of the disputed portion of the road at the time of trial. Although it is
unclear from the record if defendant road commission or someone else put up most of the signs,
it was not contested that the signs existed. According to testimony at trial, "dead-end" signs are
no longer used, but they were used in the past "to indicate that there was a problem up ahead."
Testimony indicated that a "road closed" sign would indicate that the use of caution is necessary,
but would not necessarily mean that the road is closed to all vehicular traffic and would not
render travel on such a road illegal. In addition, a "no outlet" sign indicates that it would be
difficult to get through a road.
The trial court's conclusions "that a road closed sign is intended to serve as a warning the
road may be impassable" and that "it is not illegal to travel on such a closed road" are supported
by the record. Although the record was not clear regarding who placed most of the signs, even if
defendant road commission erected all the signs, such conduct would constitute evidence of
public maintenance of the disputed road under the second element of a highway by user. In any
event, regardless of who installed the signs, it is clear from the record that they were regularly
ignored by the members of the public who used the road in dispute over the years. In other
words, the public used the roadway in spite of the signs. Therefore, because the public used the
roadway, the public use element of the highway by user was established in spite of the existence
We further hold, contrary to plaintiffs' argument on appeal, that the second and third
elements necessary to establish a highway by user existed during the same ten-year period. In
fact, we conclude that the evidence established that the public use and the public work and
maintenance elements of a highway by user were established for a 20-year period, from
approximately 1977 to 1997.
Regarding the public work and maintenance element, Richard Hansen, the road
commission's assistant superintendent from 1968 through about 1984 and its superintendent from
1984 until 1987, testified that he drove and inspected the disputed portion of the road every year
as a part of his normal duties. Hansen also asserted that in the late 1970s or early 1980s, the road
commission hauled gravel north of the Freeman drain bridge on the disputed portion of Darr
Road. Hansen further asserted that the road commission did some plowing of at least a portion
of the disputed roadway. Hansen also testified that in 1986, after a heavy rain, the road
commission made repairs to the Lincoln River bridge. Finally, Hansen testified that the road
commission consistently pulled out vehicles that had become stuck in the disputed portion of the
roadway. In addition, David Hasenbank, the Mason County Drain Commissioner, testified that
in 1987 the road commission cleaned out the Freeman Drain. Furthermore, Ron Campbell
testified that the road commission cut brush in the ditches on the disputed roadway just about
every year. He also asserted that the road commission graded and snowplowed the area that
used to be his driveway north to Fountain Road.
Regarding the public use element, Campbell's testimony, which was detailed above,
established that there was public use of the disputed portion of the roadway from 1977 to 1997
for recreational purposes and for business associated with Campbell's farm.
On the basis of the testimony of Richard Hansen, David Hasenbank, and Ron Campbell,
we conclude that the evidence did establish that the public use and public authorities' work and
use of the disputed roadway did occur during the same 20-year period, from 1977 to 1997.
To the extent that plaintiffs suggest that the trial court erred in relying on testimony that
defendants might need the disputed portion of the road in the future in concluding that the
section of the road in question was a highway by user, we disagree. Plaintiffs' appellate brief
does not cite any case law or statutory authority to support their contention that the trial court's
alleged reliance on the testimony regarding the future public use of the road was improper. A
party who fails to brief the merits of an alleged error has abandoned the issue on appeal. Yee v
Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). "It is not
enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position." Id., quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Even if
the trial court did note that defendants might need the disputed portion of the road in the future
for some public use, this would not alter the fact that defendants established the elements
necessary to establish a highway by user under MCL 221.20.
Plaintiffs next argue that even if the portion of Darr Road at issue did, at some point,
become a highway by user, defendants abandoned the disputed section of the road by failing to
maintain it and by putting up "road closed" signs. We disagree.
This Court reviews for clear error a trial court's factual findings following a bench trial;
however, legal conclusions are reviewed de novo. Essexville v Carrollton Concrete Mix, Inc,
259 Mich App 257, 265; 673 NW2d 815 (2003).
"A roadway established for public use may cease to be such by voluntary abandonment
and nonuse." Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637, 652; 662 NW2d 424 (2003).
To prove abandonment, "both an intent to relinquish the property and external acts putting that
intention into effect must be shown by the party asserting abandonment." Id. "Nonuse alone is
insufficient to prove abandonment." Sparling Plastic Industries, Inc v Sparling, 229 Mich App
704, 718; 583 NW2d 232 (1998).
We hold that the trial court properly concluded that defendants had never abandoned the
portion of Darr Road in dispute. At trial, there was no evidence that defendants intended to
relinquish the property and there was no evidence regarding any external acts done by them
indicating an intent to abandon the disputed roadway. Plaintiffs contend that defendants' failure
to improve, maintain, or make the road reasonably passable, as well as the placement of signs at
each end of the disputed portion of the road, constituted external acts done by the road
commission to show its intent to relinquish the property. However, mere nonuse is insufficient
to prove abandonment, Sparling Plastic, supra at 718, and, even if it were, the record does not
support plaintiffs' contention that the road commission failed to maintain the disputed portion of
the roadway. Although it did not engage in an abundance of maintenance and work on the
disputed roadway over the years, the record reveals that the road commission's care and
maintenance of the roadway was sufficient and consistent with the character of the roadway.
The record reveals that the road commission maintained the disputed roadway as it would any
country two-track road. This maintenance, while not large in scope or expense, was sufficient to
preclude a finding of abandonment. Moreover, the evidence at trial does not support plaintiffs'
contention that the road commission's placement of signs at each end of the disputed roadway
evidences defendants' intent to abandon or close the disputed roadway. Therefore, we hold that
the trial court did not clearly err in concluding that defendants had not abandoned the portion of
Darr Road in question.
/s/ Peter D. O'Connell
/s/ Bill Schuette
/s/ Stephen L. Borrello