GATCHBY PROPERTIES LP V ANTRIM CO ROAD COMM
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
GATCHBY PROPERTIES, L.P.,
UNPUBLISHED
March 5, 2002
Plaintiff-Appellant,
v
ANTRIM COUNTY ROAD COMMISSION,
TOWNSHIP OF HELENA, ASSOCIATION FOR
THE PRESERVATION OF PUBLIC ACCESS,
and MICHAEL CRAWFORD,
No. 217417
Antrim Circuit Court
LC No. 97-007232-CH
Defendants-Appellees,
and
ISABEL AMERSON,
ON REMAND
Defendant.
Before: White, P.J., and Murphy1 and Talbot, JJ.
PER CURIAM.
This case is before us on remand from the Supreme Court. The single issue presented is,
as stated by the Supreme Court:
Whether the trial court’s grant of summary disposition must be affirmed because
the plaintiff, on appeal, failed to challenge the rationale relied on by the trial court,
that plaintiff was barred from challenging the regularity of the condemnation
proceedings for the reasons set forth in DeFlyer v Oceana Co Rd Comm’rs, 374
Mich 397, 402 [; 132 NW2d 92] (1965).
1
Judge Murphy has been substituted for Retired Judge Danhof on remand.
-1-
We conclude that plaintiff has incurred no such procedural default requiring affirmance, but that
our earlier remand should be expanded to allow defendants to continue to pursue an estoppel
defense based on DeFlyer, supra.
I
The circuit court’s decision was based on the conclusion that “a presumption of
regularity” applied. The circuit court relied on two Michigan cases and a New York case in
support of this conclusion, People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994), Edel v
Filer Township, 49 Mich App 210; 211 NW2d 547 (1973), and Clark v New York, 246 NYS2d
53; 41 Misc 2d 714 (Ct Cl, 1963). The circuit court identified two issues - - “the lack of
paperwork to support compliance with the technicalities of the Michigan condemnation law that
applied in 1897,” and “questions of proof about whether the road was opened and worked within
four years of 1897 as required by the law at that time.” The first issue was decided in
defendant’s favor based on a presumption of regularity. The second issue, although also
involving DeFlyer, is not implicated on remand.2
After ruling that there was a presumption of regularity that had not been adequately
rebutted, and after discussing DeFlyer in the context of the open and worked requirement, the
circuit court went on to discuss DeFlyer further:
Now, DeFlyer, which was a condemnation case, also held that the plaintiffs in that
case who were successors to the owners who applied for the condemnation
originally, the condemnation of the road in question in DeFlyer, that those
plaintiffs as successors to the original petitioners for condemnation were not
permitted, or able to challenge the validity of the laying out proceedings
connected with the condemnation.
The circuit court then quoted from DeFlyer, supra at 402:
Furthermore, we hold that plaintiffs are not in a position to challenge the validity
of the laying out proceedings in 1915 for lack of service and notice of hearing by
the commissioner because the then owners of plaintiffs’ land signed the
application or petition therefor. Also, their action in that respect was the
equivalent of at least a common-law if not a statutory dedication of the strip for
highway purposes, thus rebutting plaintiffs’ complaint of lack of conveyance or
2
In addressing the second issue, the court again concluded that a presumption of regularity
applied. The court discussed the available evidence regarding the opened and worked
requirement, and concluded that it did not overcome the presumption of regularity. Thus, the
court found that based on the presumption of regularity the road had been opened and worked
within four years of 1897, “at least as to much or most of the way from Torch Lake Drive west,
down to the lake. However, there is [nothing] that really shows that it was worked all the way
down to the lake.” The court then relied on DeFlyer, supra, for the proposition that opening and
expending funds on part of the road was sufficient to constitute an acceptance of the full length
of the road.
-2-
dedication of the strip by the property owners. We agree with defendant that said
section 20 of the act bars plaintiffs, after more than 8 years of user without
objection by them, from now challenging the regularity of the 1915 proceedings.
See Potter v. Safford, 50 Mich 46. While the county road commissioners’ action
under the McNitt act could not deprive plaintiffs of title, [citation omitted], it is
indicative of the understanding of the township and county officials, at least, that
the disputed strip was part of the township’s highway system. This is precisely
what plaintiffs’ predecessors in title had wanted and asked for in their 1915
petition or application. Of this fact, plaintiffs could have taken some notice by
reason of the gap in description of the premises in the deed on which their rights
depend, indicating a probable intent to except the usual 2 rods along a section line
for highway purposes.
The circuit court continued:
Now, interestingly in DeFlyer, the plaintiffs there, the court held had some notice
that there was probably a road here, because there was a two rod hole in their
description which seemed to fit with what the highway - - half of the highway on
their property would have been. But that would require some thought if you’re
looking at the description to understand that.
In our case, the notice of the road to plaintiffs, when they bought their property
was clear. Right in the plat it explicitly says that the plat of the property, they are
buying lot 1, the plat that describes and defines lot 1, says right in it, adjacent to
lot 1 it labels that property as a county road. So there was no ambiguity that the
lot plaintiffs bought did not include the county road. So it’s an even stronger case
in that respect in [sic] DeFlyer.
Now, in fairness, the law that applied, the condemnation law in DeFlyer is
somewhat different. This was in 1915, and there are some differences in the law
from the one that applied to this case in 1897. But the principle that when you
take from someone who is in on, or petition[s] for the condemnation, that you are
barred from challenging the procedures by which the condemnation is laid out, I
think applies as well here.
Now, in our case, the south half of the road in question, which is in section 9,
back in 1897 was owned by Decker and Amerson. The document by the highway
commissioner, Mr. Main, recites that they were among the petitioners who
petitioned for condemnation. There is no evidence presented that Decker and
Amerson were not among, and this is William Amerson, were not among the
petitioners who petitioned for condemnation. So there’s no fact question about
that point.
Plaintiff, with respect to the south part of the road, which is in section 9, plaintiff
is a successor to - - in title to Decker and Amerson. So plaintiff, under the theory
of DeFlyer, is barred from contesting the condemnation of this part of the road.
-3-
Now, with respect to the north part of the road, which is in section 4, it was
owned by persons in 1897, who may not have been petitioning for the road
condemnation. The names of the people who did petition is [sic] set forth in the
Main document, and depending upon how things work out, there might be, I
mean, Charlie Coy might be indeed the owner, or others, but some of them may
not have been.
And it does say in the Main document, after naming a number of the petitioners,
that there were others who were then not named. But assuming that the north half
was not owned by persons, or at least we can’t be sure that it was owned by
persons who petitioned for the condemnation of the road, it is clear that in 1904
when the plat of Maybloom Beach was - - occurred, the platter was William
Amerson and his wife, and William Amerson is one of the petitioners. That’s
explicitly set forth in the Main document. And indeed, he was, at the time of the
condemnation, was one of the owners of the property to the south in section 9.
So by 1904, he and his wife were the owners of the property to the north, section
4. And in 1904 they platted Maybloom Beach. And they explicitly had the south
edge of the plat in leaving this highway in place, And they explicitly in the
platting documents show the property just to the south of that plat, and just to the
south of those lots as highway.
So we have in 1904, only seven years after the condemnation in question, one of
the petitioners for the condemnation owning the property platting it, and clearly
showing the existence of this highway.
Now, to the extent the plaintiffs have an interest in the north part of that highway,
the section 4 part, their interest comes as ownership that comes down through
William Amerson and his wife. And consequently plaintiff’s interest in the north
part, which derives from William Amerson, and therefore under DeFlyer the same
principle would apply to show that plaintiff is not able to challenge the
condemnation with respect to the north part of the road either.
II
Plaintiff’s first argument on appeal was couched as follows:
THE CIRCUIT COURT ERRED IN GRANTING DEFENDANTS’ MOTION
FOR SUMMARY DISPOSITION ON THE AFFIRMATIVE DEFENSE THERE
WAS A VALID CONDEMNATION
A.
Defendants’ Burden of Proof Under the Statute Was Not Met
1.
Defendants Cannot Prove a Valid Condemnation
2.
Defendants Cannot Establish That The Road Was Opened and Worked
-4-
B.
The Presumption of Regularity is Inapplicable to Condemnation Proceedings
In its statement of facts and argument sections relating to this issue, plaintiff asserted that
certain required documents do not exist, including the purported application by the ten
freeholders. Plaintiff argued that because the documents do not exist, defendants were not
entitled to an evidentiary presumption that the requirements of the condemnation act were met.
Plaintiff argued that there is no “presumption of regularity” applicable to condemnation
proceedings where the requirements of the statute are not established. Plaintiff discussed the
three cases relied on by the circuit court in support of its conclusion that a presumption of
regularity applied. Plaintiff also asserted that the owner of the north half of the property at the
time of the condemnation is not listed as either joining in the application or receiving the written
notice. Plaintiff also argued that there was no evidence that the road was opened and worked
within the required four-year period. With regard to the issue of dedication, plaintiff asserted
that the McNitt resolution did not explicitly refer to the purported road. As to the plats, plaintiff
asserted that although the road is shown on the plats, the road is outside the plats and the plats
did not serve to dedicate the roads. Plaintiff did not mention the DeFlyer case or the circuit
court’s discussion of it.
Defendant’s brief mentioned DeFlyer in connection with the common-law dedication
issue, and once in connection with the presumption of regularity issue in a footnote stating:
Importantly, in situations where a road was opened and worked within four years
of its condemnation, title holders whose predecessors in title applied for
condemnation are prohibited by statute to challenge the condemnation. See
Howell’s § 1314, DeFlyer v Board of County Road Commission of Oceana
County, 374 Mich 397; 132 NW2d 92 (1965); Page v Boehmer, 154 Mich 693
(1908). As such, if the presumption of regularity applies to the open and work
issue, Appellants are likely included [sic] from challenging the condemnation
action at all.
Defendants did not mention the circuit court’s discussion of DeFlyer, and did not argue that the
circuit must be affirmed because plaintiff failed to address this aspect of the circuit court’s
decision.
III
The circuit court’s decision on the condemnation defense was based on a presumption of
regularity. Plaintiff challenged this ruling on appeal. The court went on to discuss the DeFlyer
case in the context of working a part of the road being sufficient respecting the entire road,3 and
in the context of an estoppel to challenge the regularity of the condemnation proceedings.
3
With regard to this first issue, notwithstanding its discussion of DeFlyer, the court still relied on
a presumption of regularity in determining that, as a matter of law, part of the road was opened,
and there was insufficient evidence to rebut the presumption. By challenging the application of
(continued…)
-5-
With regard to the second issue, although the circuit court quoted extensively from
DeFlyer, apparently drawing analogies, it is unclear to what extent the court actually relied on
DeFlyer in granting summary disposition on the condemnation issue, as the court discussed
multiple aspects of the DeFlyer decision. The discussion of common law dedication seems to be
irrelevant to the condemnation issue. Similarly, it is not argued that section 20 of the act applies.
With respect to the circuit court’s discussion of the plat and the notice it afforded plaintiff,
plaintiff’s brief on appeal adequately points out that although the plats showed the road, they did
not include the road, and therefore did not operate to dedicate the road under the statute. The
plats are relevant to the issue of common-law dedication to be addressed on remand, but not the
issue whether there was a valid condemnation proceeding.
Thus, we focus on the aspect of the court’s reliance on DeFlyer that concluded that
plaintiff could not object to irregularities in the condemnation proceeding because its predecessor
in title signed the application or petition. In its brief on appeal, plaintiff points out that this is an
accurate statement only as to the south portion of the alleged road. In the absence of any
argument by defendant in its brief on appeal that plaintiff failed to adequately challenge the
circuit court’s decision by failing to discuss DeFlyer, plaintiff’s argument that the Main
document does not indicate that the application to lay out the road was signed by the owner of the
north half of the road adequately challenged the circuit court’s reliance on DeFlyer as to the
north half of the road.
The circuit court applied the DeFlyer rationale to the north half of the road as well as the
south half based on the reasoning that one of the applicants later appeared in the chain of title to
the north half of the road, and also executed a plat that indicated his recognition of the road.
While these facts may have evidentiary significance, it is an unwarranted extension of DeFlyer to
apply its estoppel rationale to retroactively excuse a failure to give notice to the owner of a
particular portion of the land on which the road is to be laid out based on the notice imputed to
the applicants for the road, where one of those applicants later acquires an interest in the portion
as to which there is no evidence of notice.
As to the south half of the road, plaintiff’s brief on appeal did not explain why DeFlyer
would not apply. In its supplemental brief on remand from the Supreme Court, plaintiff explains
that it did not separately address the DeFlyer case because it broadly challenged the application
of a presumption of regularity to the purported condemnation proceedings, and if there is no
presumption of regularity, DeFlyer cannot be applied because the actual application or petition is
not part of the record. Thus, while in DeFlyer it was established that the plaintiffs’ predecessors
in title signed the application, here there is no such evidence, unless one applies a presumption of
regularity to the Main document. Plaintiff argues that by successfully challenging the application
of a presumption of regularity to the condemnation proceedings, it successfully undermined the
circuit court’s reliance on DeFlyer.
(…continued)
the presumption, plaintiff adequately addressed this aspect of the circuit court’s reliance on
DeFlyer.
-6-
In our initial opinion, Gatchby Properties v Antrim Cty Rd Comm, unpublished opinion,
issued 10/13/00 (Docket No. 217417), we rejected the application of a presumption of regularity,
and concluded that absent such a presumption, defendants were unable to show a valid
condemnation, and therefore plaintiff was entitled to judgment on this affirmative defense.4
DeFlyer raises a different issue - - whether plaintiff should be estopped from challenging the
regularity or validity of the proceeding (with respect to the south half of the road) based on its
predecessor signing the petition. The application of DeFlyer’s estoppel doctrine rests on the
premise that plaintiff’s predecessor did in fact sign the petition. Plaintiff argues that this cannot
be established without applying a presumption of regularity to the condemnation proceeding. We
conclude, however, that while a condemnation proceeding that does not comply with the
applicable statute on its face cannot be established based on a presumption of regularity, the
Main document may be considered as evidence bearing on the question whether plaintiff’s
predecessor signed the application and DeFlyer applies. However, because the actual petition
has not been presented, defendants cannot show that as a matter of law they are entitled to
DeFlyer estoppel.
Thus, we expand the scope of our earlier remand. In addition to recognizing the existence
of genuine issues of material fact relating to the defense of common-law dedication, we
recognize the existence of a genuine issue relating to DeFlyer estoppel. If the trier of fact
concludes that plaintiff’s predecessor in title to the south half of the alleged road signed the
application, the circuit court shall grant judgment to defendants on the condemnation affirmative
defense as to that portion of the property. If the trier of fact does not so conclude, the circuit
court shall grant judgment to plaintiff on the affirmative defense of condemnation.
Remanded for further proceedings. We do not retain jurisdiction.
/s/ Helene N. White
/s/ William B. Murphy
/s/ Michael J. Talbot
4
Judge White dissented from the conclusion that plaintiff was entitled to judgment on the issue,
instead concluding that while insufficient to conclusively establish compliance with the statute,
the evidence, including the Main document, raised a question of fact whether a valid
condemnation had taken place.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
