TAYLOR, J. (concurring in part and dissenting in part).

I agree with the majority that a highway created by user pursuant to MCL 221.20; MSA 9.21 is presumptively four rods (sixty-six feet) wide. However, I disagree with the majority's analysis of the issue in terms of implied dedication. I believe the more apt analysis recognizes that the highway-by-user statute is simply a legislative modification of the common law of prescriptive easement. However, I also disagree with the majority's treatment of Eager v State Hwy Comm'r, 376 Mich. 148; 136 N.W.2d 16 (1965). I do not think that Eager can be harmonized with today's holding. Therefore, I would explicitly overrule Eager and, in light of the reliance the people of this state must be able to place in the decisions of this Court, apply my ruling prospectively. Consequently, plaintiffs, who acquired their parcel of land in 1973, should be compensated for the strip of land forming the basis of the instant controversy.

At issue here is a strip of land lying adjacent to an improved road that was created by user. That is to say, the road was never formally dedicated to the public as such, but instead was created when the public used this portion of land as a road over an extended period. The city of Kentwood has endeavored to widen the road, and in doing so found it necessary to take a portion of defendants' land for that purpose. However, in determining the amount of compensation owed defendants because of the taking, plaintiff has claimed that it need not pay compensation for any portion of the existing highway and that its existing right of way is four rods wide, despite the fact that the improved portion of the road did not extend that far onto defendant's land. Defendants, in turn, argue that they must be compensated for all the land taken that lies outside the existing improved portion of the road because a highway by user is only as wide as actually used, not four rods. The trial court agreed with defendants and ordered that they be compensated for all land taken that lies outside the improved portion of the road. This Court granted leave to appeal, bypassing the Court of Appeals, in order to address the question presented.

As noted initially, I believe the highway-by-user statute is simply a legislative modification of the common law of prescriptive easement. An easement, put simply, is the right to use the land of someone else. Morrill v Mackman, 24 Mich. 279, 297 (1872). Our common law recognizes the creation of easements through prescription. Prescriptive easements are created when a person uses the property of another for a particular purpose, but does not possess the land. "Title or rights in lands founded on prescription originate from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner, by his acquiescence, has granted the land, or interest to the land, so held adversely." Turner v Hart, 71 Mich. 128, 138; 38 N.W. 890 (1888). At common law, the party claiming the easement must have used it for fifteen years. Id.

With this understanding of the common law of prescriptive easement, I turn to the statute in question. As noted by the majority, the Legislature first addressed highways created by use in 1838 RS, tit 6, ch 4, § 42. Enacted the year after Michigan became a state, it provided that "all roads not recorded, which have been, or shall have been used as public highways twenty years or more, shall be deemed public highways. . . ." Section 43 in turn required that all roads that had been used as public highways for at least twenty years be opened to at least two rods in width.

Before the enactment of this statute, in the early days of our state, many roads were informally established. Under the common law, such use would appear to have created an easement across the land because it was actual, adverse, peaceable, open, and uninterrupted. However, at common law an easement in gross normally flowed to a specific individual and was limited in scope to actual use. In moving forward with the business of governing a new state, the Legislature sought to regularize the system of public highways. Consequently, it determined that such informally created roads should attain a legally recognized status and formally become public highways. Modifying the common law of easement, clearly within the Legislature's prerogative, Const 1963, art 3, § 7; Placek v Sterling Heights, 405 Mich. 638, 657; 275 N.W.2d 511 (1979), the Legislature vested the rights to use these roads in the public at large and determined that the roads must have been used for twenty, rather than fifteen years, before they would attain such status. Additionally, while common-law easements were limited to the scope of actual use, the Legislature determined that public highways would be at least two rods, or thirty-three feet, wide. 1838 RS, tit 6, ch 4, § 43.

In subsequent years the Legislature modified the statutes related to highway by user, changing the period of prescription from twenty years to ten and also expanding the width of the easement created from two rods to four. Nevertheless, the basic statutory scheme remains unchanged. Consequently, § 20, the present incarnation of the highway-by-user statute, provides in part:

[A]ll 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. . . .

This Court has recognized that the right of way obtained pursuant to the highway-by-user statute is an easement and that the abutting landowner retains the fee simple interest. Eyde Bros Development Co v Eaton Co Drain Comm'r, 427 Mich. 271, 282; 398 N.W.2d 297 (1986); cf. Grandville v Jenison, 84 Mich. 54, 65; 47 N.W. 600 (1890); Wanzer v Blanchard, 3 Mich. 11, 16 (1853). Because the nature of the interest obtained by the public is an easement that was created essentially by prescription, in order to remove any confusion in the future in this regard, I would clarify the analysis accordingly. Moreover, acknowledging that the state has only obtained an easement answers Justice WEAVER's concern that the highway-by-user statute "destroys a fee simple interest in real property without compensation. . . ." Post at 682. This is simply not the case because the fee is retained by the abutting landowner. Only an easement is created by the highway-by-user statute.

My dissenting colleagues conclude that granting the state a right of way that exceeds the amount actually used effects a taking of the abutting landowner's property without just compensation, in violation of U.S. Const, Am V and Const 1963, art 10, § 2. I disagree. First, as just noted, the landowner retains his fee simple interest. Second, because the right of way, as a prescriptive easement, would not have attained status as a highway by user but for the abutting landowner's acquiescence in the use of a portion of his land as a highway, the landowner's acquiescence precludes any finding of a taking. Third, we must acknowledge what I believe to be the controlling effect of the United States Supreme Court's jurisprudence in this area.

My dissenting colleagues assert that the landowner did not acquiesce to anything more than what was actually used, as would be the case if one were addressing a common-law prescriptive easement. However, this view ignores that the highway-by-user statute puts the landowner on notice that if he allows a highway to be created by use, the highway will be the statutory width, absent some action by the landowner to eliminate or limit the use of his land that operates, over the prescriptive period, to create the highway by user.

My colleagues argue that statutory notice alone cannot be sufficient to apprise the landowner that acquiescence in a road ten feet wide is actually acquiescence in a road four rods wide. I disagree. As the majority notes, both this Court and the United States Supreme Court have found that the titleholder of mineral rights may lose those rights for failure to specifically claim them, even where the only notice of the need to file the statutory claim is in the statute itself. As noted in Texaco v Short, 454 U.S. 516, 532; 102 S.Ct. 781; 70 L.Ed.2d 738 (1982):

It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.

See also North Laramie Land Co v Hoffman, 268 U.S. 276, 283; 45 S.Ct. 491; 69 L.Ed.953 (1925); Van Slooten v Larsen, 410 Mich. 21, 52-55; 299 N.W.2d 704 (1980); Curley v Beryllium Development Corp, 281 Mich. 554, 556; 275 N.W. 246 (1937) ("It is a maxim of the law that `ignorance excuses no one'").

That the effectiveness of the statutory notice was sufficient in this case, regarding property interests, is buttressed by the fact that the presumption of knowledge of the law applies equally to the situation in which a person's liberty, rather than property, interests are at stake, i.e., a situation historically subjected to more exacting judicial scrutiny. See United States v Carlone Products, 304 U.S. 144, 153, n 4; 58 S.Ct. 778; 82 L.Ed. 1234 (1938). It is firmly grounded in our law that a person may have his liberty interests taken away, in the form of imprisonment, for violating a statute of which he did not have actual knowledge. "The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system." Cheek v United States, 498 U.S. 192, 199; 111 S.Ct. 604; 112 L.Ed.2d 617 (1991); see also People v Motor City Hosp Surgical Supply, Inc, 227 Mich. App. 209, 215; 575 N.W.2d 95 (1997). With this understanding it is clear that the enactment and publication of the highway-by-user statute is sufficient to put landowners on notice that acquiescence in the creation of a highway by user across their land will create a right of way four rods in width even if less is actually used.

Finally, in its discussion of Nollan v California Coastal Comm, 483 U.S. 825; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987), the dissent misapprehends that the easement there under discussion was a specific easement over the Nollan's land. The California Coastal Commission had, as described colorfully by Justice Scalia, through an "out-and-out plan of extortion," conditioned the issuance of a building permit on the Nollan's granting of an easement over their land. Id., 483 U.S. 837. Unsurprisingly, this was held to be a taking. Our situation is not analogous, because the highway-by-user statute does not grant a specific easement, or indeed any easement at all, it merely alters the common-law requirements for establishing an abandonment so that an easement may be held to be established. Thus, for example, what was at common law a fifteen-year use requirement was modified by the statute to ten years. This ability of the Legislature to modify the common law of easement is, as I understand the dissenters, not contested. What is contested, however, is the kind and scope of modification the Legislature can make. It is clear that the dissenting justices do not believe that the power to modify the common law can extend to the size of the easement granted. Were this question a matter of first impression, much could be said for their position. This question, however, is not one of uncertainty in our law, because it has been settled by the United States Supreme Court in Texaco. In that case, it was held that if notice is given by statute (as it was here) the affected interests in land (a fee interest in minerals in Texaco) can be shifted in this fashion. Our case is easier and falls within the Texaco rule. After all, rather than shifting a fee interest, the highway-by-user statute only claims a right to travel over the fee, which is, of course, a deprivation less than the total termination of a fee interest such as that seen in Texaco. We should follow Texaco and find that there was no taking. It is our duty to follow the precedent of the United States Supreme Court on this constitutional matter, no matter what our own predilections, or give legally recognizable reasons for not doing so. Those reasons have, to my eye, not been presented.

Moreover, we must also recognize this Court's decision in Eager, supra at 154, which held:

We agree with the trial court that privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of Constitution of 1850, art 18, § 14, Constitution 1908, art 13, § 1, which prohibited taking by the public of private property except upon determination of necessity and just compensation "being first made and secured."

In light of this specific holding, the majority's attempt to harmonize Eager with today's holding simply is not possible. If we are going to assume that people have read and know the law, one could only conclude that after Eager was decided everyone should have understood that a highway by user is only as wide as is actually used. Yet, I am convinced that Eager was wrongly decided. Consequently, because both my conclusion and the conclusion of the majority overrules this established precedent, we must consider the effect of our decision.

When Eager was decided, its effect was to make the portion of the highway-by-user statute that gave more land to the prescriptive user than was actually being used unconstitutional. This holding was retroactive under the doctrine that a statute, or portion of a statute, that is unconstitutional was always, from its inception, "inoperative as though it had never been passed." Norton v Shelby Co, Tennessee, 118 U.S. 425, 442; 6 S.Ct. 1121; 30 L.Ed.178 (1886); see also Briggs v Campbell, Wyant Cannon Foundry Co, 379 Mich. 160, 165; 150 N.W.2d 752 (1967). Accordingly, the nonused portion of the four rods was never in any fashion subject to any claim of prescriptive easement. Thus, with respect to the instant dispute, I believe the trial court did not err in ordering that the city of Kentwood must compensate defendants for all land taken from them that lies outside the established use.

However, by revivifying the statute, we today make all land abutting a highway created by user subject to the creation of an easement of the statutorily presumed width. Because today's holding "overrules settled precedent," we should give it prospective application only. Lindsey v Harper Hosp, 455 Mich. 56, 68; 564 N.W.2d 861 (1997). This would mean that the greater amount of land that the statute allows to be used by way of easement could be secured if the prescriptive period of the statute runs from this time forward and the fee holder does not act to manifest lack of acquiescence in such use.

WEAVER, J. (dissenting).

I dissent from the majority's interpretation of MCL 221.20; MSA 9.21, the highway-by-user statute. I believe the majority's interpretation sanctions the unconstitutional taking of private property without compensation in violation of the Fifth Amendment of the United States Constitution and art 10, § 2 of the Michigan Constitution. The majority's interpretation also violates appellees' Fourteenth Amendment right to procedural due process.

The majority relies on Bumpus v Miller, 4 Mich. 159 (1856), to support its holding that the highway-by-user statute authorizes taking more property than has been actually used by the public. However, this interpretation of Bumpus was expressly found unconstitutional by subsequent decisions of this Court, including, Eager v State Hwy Comm'r, 376 Mich. 148; 136 N.W.2d 16 (1965), and Smith v State Hwy Comm'r, 227 Mich. 280, 283-286; 198 N.W. 936 (1924).

Further, the majority incorrectly relies on Bd of Regents of State Colleges v Roth, 408 U.S. 564, 577; 92 S.Ct. 2701; 33 L.Ed.2d 548 (1972), and Texaco v Short, 454 U.S. 516; 102 S.Ct. 781; 70 L.Ed.2d 738 (1982), to justify placing the burden of preserving a fee simple interest in real property on the property owner. The majority would impose on modern property owners the burden of proving that a predecessor in title, of perhaps 160 years ago, acted within the first 10 consecutive years after the highway was first established, in order to rebut a fictional offer of dedication of four full rods implied from that predecessor's acquiescence to the public use of less than four rods.

Finally, the decisions of this Court which are subsequent and contrary to Bumpus, spanning 1883 to 1965, eliminate the value of any "notice" that can be ascribed to property owners by the mere enactment of the highway-by-user statute.

For all practical purposes, the presumption of an implied dedication of four rods as defined by the majority is irrebuttable and, therefore, unconstitutional because it amounts to nothing less than the seizure of property without just compensation or actual use.

I would affirm the circuit court holding and reaffirm this Court's decisions in Eager v State Hwy Comm'r, and Smith v State Hwy Comm'r, supra, that the highway-by-user statute is constitutional only when interpreted to afford the public a highway as wide as has been actually used.

I

The Fifth Amendment provides: "[N]or shall private property be taken for public use, without just compensation." Const 1963, art 10, § 2 similarly provides:

Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.

There has never been any doubt that this prohibition applies to the physical seizure of real property. I believe that the highway-by-user statute should be read as limiting the presumption of width to the extent actually used. The majority's interpretation, which creates a four-rod presumption, effects a physical seizure of property without compensation and is, therefore, unconstitutional.

A

The highway-by-user statute currently provides in pertinent part:

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. . . . [MCL 221.20; MSA 9.21.]

This Court has interpreted the highway-by-user statute to create a rebuttable presumption that a property owner abutting a highway established by use impliedly dedicated the land for use as a public highway. See, e.g., Smith v State Hwy Comm'r and Eager, supra. The question in this case regards the width of the highway established by the implied dedication.

Implied dedications are distinguishable from statutory dedications. Statutory dedications require actual written dedication by a recorded plat describing the scope of land dedicated and actual acceptance and maintenance by the appropriate public authorities. Implied dedications, on the other hand, require no actual writing, only a fictional offer implied from the property owner's acquiescence to public use, and the acceptance of the fictional offer by actual use and maintenance of the dedication by the appropriate public authority. Whether implied or by statute, an offer to dedicate requires actual acceptance in the form of use by the public entity with authority over the road. Indian Club v Lake Co Rd Comm'r, 370 Mich. 87; 120 N.W.2d 823 (1963), and Wayne Co v Miller, 31 Mich. 447, 448-449 (1875). Acceptance of implied dedications is garnered from "the facts and surrounding circumstances." Smith v State Hwy Comm'r, supra, p 286.

Other state courts addressing similar highway-by-user statutes do so in terms of prescription, requiring evidence of open, notorious, and uninterrupted use by the public. Indeed, one Michigan case discusses the highway-by-user statute in terms of prescription. See, e.g., Village of Manchester v Clarkson, 195 Mich. 354, 363; 162 N.W. 115 (1917). I believe that prescription is the more appropriate theory to apply to the highway-by-user statute because it is the evidence of use adverse to the abutting property owners for a prescribed period that establishes a highway by use. It is only constitutional for the government by statute and without compensation to offer up vested property rights for public use if the government demonstrates acceptance through actual use in response to the fictional offer of implied dedication, and then only to the extent actually used. In this respect, implied dedication is the functional equivalent of prescription.

Applying either prescription or implied dedication, it is the evidence of public use and maintenance by public authorities that is determinative of the existence of a public highway. Failure by the public to use the full four rods anticipated by the highway-by-user statute simply results in the public's acquiring less than four rods. Indeed, a highway by user is not "affected by the fact that the land within the highway boundaries may be of a width less than four rods or more than four rods." Trowbridge v State Hwy Comm'r, 296 Mich. 587, 599; 296 N.W. 689 (1941) (emphasis added). Trowbridge held that the fact that the strip of land between the paved portions of a super highway was wider than four rods would not prevent that strip from becoming a highway by user under the statute because a highway by user is as wide as actually used. Id.

B

Contrary to this precedent, however, the majority reads the highway-by-user statute to create a rebuttable presumption that the highway is four rods wide, regardless of the extent of actual use. The majority's assumption that the Legislature can draft a statute that destroys a fee simple interest in real property without compensation or proof of actual use is no less than a sanctioning of the unconstitutional seizure of private property.

The majority claims that the highway-by-user statute merely modifies common-law dedication by allowing the government to take more than has been actually used. See ante, p 654 and n 2 supra. However, regardless of the common-law theory being modified by statute, the Legislature is bound by the federal and state constitutions. It is fundamental that a statute cannot offend or amend the constitution. Thus, the majority's interpretation, which would effectively hold that the mere enactment of the highway-by-user statute operates to acquire property beyond that actually used, sanctions the unconstitutional taking of private property for public use without compensation.

The concurrence/dissent similarly suggests that the highway-by-user statute merely modifies the common law of prescription. The concurrence/dissent's argument that fee is not lost because the highway-by-user statute takes only an easement, however, is contrary to Nollan v California Coastal Comm, 483 U.S. 825, 831-832; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987), where the Supreme Court recognized:

Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. . . . [W]e [have] observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others . . . "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner." . . . We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.

Further, in apparent reliance on Texaco, supra, the concurrence/dissent appears to argue that there is no difference between modifying the common-law duration of prescription and modifying the scope of prescription. However, the concurrence/dissent fails to understand that the duration of the prescriptive period is an issue of procedural due process, while modifying the scope of property acquired by prescription necessarily implicates the Fifth Amendment's substantive prohibition against the government's seizure of property without just compensation.

1

For its proposition that an abutting owner must rebut his, or his predecessor's, implied dedication of a full four rods, the majority relies on this Court's decision in Bumpus v Miller, supra. While the majority may be "reaffirming" Bumpus, it fails to acknowledge a line of subsequent Michigan case law that is contrary to Bumpus.

The interpretation of the highway-by-user statute attributed to Bumpus by the majority was expressly held unconstitutional in Eager v State Hwy Comm'r and Smith v State Hwy Comm'r, supra. The Eager Court stated:

Defendant claims that the road was created by user, under that statute, and is, therefore, 4 rods wide. For this conclusion defendant relies on Bumpus v Miller, 4 Mich. 159, and Kruger v LeBlanc, 70 Mich. 76 [37 N.W. 880 (1888)]. If they were authority therefor, we agree with the trial court that the later decisions of this Court, in Wayne County Savings Bank v Stockwell, 84 Mich. 586 [48 N.W. 174 (1891)], Smith v State Highway Commissioner, 227 Mich. 280, and Trowbridge v State Highway Commissioner, 296 Mich. 587, are to the contrary, holding that a highway by user becomes such to the width and extent used. We agree with the trial court that privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of the Constitution of 1850, art 18, § 14, Constitution 1908, art 13, § 1 , which prohibited taking by the public of private property except upon determination of necessity and just compensation "being first made or secured." [ Id., pp 153-154 (emphasis added).]

This Court recognized in Smith v State Hwy Comm'r, supra, p 284, "[t]hat the legislature did not intend by the act . . . to change existing highways, and that it could not by legislative enactment take property of the individual without compensation is settled in this court."

The majority simply and completely fails to address this and also ignores a long series of opinions holding that highways established under the highway-by-user statute are not presumptively four-rods wide, but are only as wide as the extent used. See also Scheimer v Price, 65 Mich. 638, 639; 32 N.W. 873 (1887), Coleman v Flint P M R Co, 64 Mich. 160; 31 N.W. 47 (1887), Wayne Co Savings Bank v Stockwell, supra, p 590, and Trowbridge, supra.

The majority's holding also renders meaningless this Court's repeated holding that a highway or any portion of it can be lost by nonuse, Lyle v Lesia, 64 Mich. 16; 31 N.W. 23 (1887); Gregory v Knight, 50 Mich. 61, 64; 14 N.W. 700 (1883); Smith v State Hwy Comm'r, supra. Under these cases, even if a highway is initially presumed to be four-rods wide, failure to use a portion of the four rods should return the unused portion to the abutting and contiguous landowner. The current statutory period to establish non-use for highways that have been laid out is four years. MCL 221.22; MSA 9.23. It would be an absurdity to conclude, as the majority effectively does, that highways actually laid out can be lost by nonuse, but that a portion of highways established by use can never be lost by nonuse. Where there is a formal abandonment of a highway, evidenced by the intent to abandon and actual abandonment, the number of years that have passed is irrelevant. See, e.g., Roebuck v Mecosta Co Rd Comm, 59 Mich. App. 128, 132; 229 N.W.2d 343 (1975).

2

In addition to this, the majority's reliance on Bumpus is in error. The version of the highway-by-user statute at issue in Bumpus did not provide that highways by user must be four-rods wide. Bumpus' conclusion that the statute did was a mistake. The version of the statute at issue in Bumpus discussed four-rods width only in terms of highways that were "laid out" by the "commissioners of highways," not those highways established by use. Id., p 161. Highways established by use, are obviously not "laid out" by public authorities, but rather are established by years of use. It is not until the 1881 version of the highway-by-user statute that the statute applies the four-rods width to both highways laid out and those established by use. The cases interpreting the 1881 and subsequent versions of the statute, find the majority's literal interpretation to be unconstitutional and limit the width of highways established by use to the extent actually used. See, e.g., Scheimer v Price; Coleman v Flint P M R Co; Wayne Co Savings Bank v Stockwell; Trowbridge; Eager; and Smith v State Hwy Comm'r, supra.

Further, 1846 RS, tit 6, ch 24, § 29 required use for 20 years or more rather than the mere 10 years required under today's highway-by-user statute. While an additional ten years of notice arising from actual use does not justify taking more than is actually used, given due process considerations discussed in part II, it is certainly a different circumstance than that presented today.

C

The majority next unsuccessfully attempts to distinguish its interpretation of the highway-by-user statute from the United States Supreme Court's holding in Nollan v California Coastal Comm, supra. In Nollan, the California Coastal Commission imposed a condition on the plaintiff's home reconstruction project allowing public access to the beach across the plaintiff's property. Nollan held that because there was no public purpose supporting the condition except the securing of an easement to facilitate public travel across private property, the government was required to condemn the property and pay just compensation. Id., pp 837-839. The majority attempts to distinguish Nollan on the ground that "the Michigan statute allows the landowner to assert the right to the property within 10 years after the creation of the road as a public road by use." Ante, p 662. The majority's analysis is flawed.

The error of the majority's reasoning regarding Nollan is based on its misinterpretation and misapplication of two United States Supreme Court decisions, and is further evidence of its failure to recognize the Fifth Amendment's and Const 1963, art 10, § 2's protection of fee simple interests in real property. The practical effect of the majority's interpretation of these cases is to shift the burden of proof from the government to the private property owner, that is, what should be the government's burden of demonstrating acceptance of the fictional offer of implied dedication is twisted to become the property owner's burden of showing that the fictional offer of implied dedication was of less than four rods.

In addition, to justify its conclusion, the majority relies on what is a flawed application of Bd of Regents and Texaco, supra. The majority cites Bd of Regents for the idea that the state may create and define property interests. While this idea is applicable where there is some question regarding whether the person claiming a taking actually has a protected property interest, its application in this context, where the existence of a protected property interest (fee simple title) is not in doubt, is illogical.

Bd of Regents addressed whether a nontenured professor had a property right in continued employment. This question has little application regarding whether the ownership of real property is a constitutionally protected interest. Bd of Regents in fact recognized that there is no question regarding the protected status of real property when it stated:

The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. [ Id., pp 571-572.]

Despite this, the majority combines the Bd of Regents' concept that states may define property interests with, Texaco, supra, a case involving the ownership of mineral interests, to justify affording Michigan property owners whose land abuts public highways fee simple interests of "less than absolute duration." Ante, p 651.

Citing Texaco v Short, supra, a case addressing the constitutionality of an Indiana mineral lapse act, the majority concludes that the state may condition ownership of fee simple interests in real property on the owner's lack of action in opposition to the fictionally implied dedication of four rods within the first consecutive 10 years of use of a lesser amount of the owner's land as a public highway. Reliance on Texaco for this holding is unsound.

Texaco held that a state statute causing the ownership of mineral interests to lapse if the interest went "unused" for a period of twenty years was constitutional. However, Texaco recognized that its decision was of limited application. It stated:

[T]he length of the period that is afforded to a mineral owner to use the interest, the variety and minimal extent of the actions that constitute a statutory use, and the length of the statutory grace period are sufficient to entitle the State to indulge in the assumption that — if no statutory use is made in a 20-year period and no statement of claim is filed in the 2-year grace period, if applicable — the mineral owner has abandoned the property. We need not decide today whether the State may indulge in a similar assumption in cases in which the statutory period of nonuse is shorter than that involved here, or in which the interest affected is such that concepts of "use" and "nonuse" have little meaning. [ Texaco, supra, p 536, n 28 (emphasis added).]

It is logical, fair, and basic to procedural due process, as addressed in part II, to assume that a fee simple interest in land would be accorded the same if not more time to assert ownership than an interest in minerals. Yet the majority finds constitutional its interpretation of the 10-year period of the highway-by-user statute, thereby affording owners of fee simple interests in real property only half the 20 years afforded owners of mineral interests to protect their interest.

Further, the concepts of "use" and "nonuse" have "little meaning" to a fee simple property owner. Texaco's discussion of fee simple interests of less than permanent duration was in reference to mineral interests. Unlike mineral interests, which have historically been subject to requirements of expedient use, the concept of "use" in the context fee simple title is irrelevant. "Use" of property is only relevant to fee simple title when it is the use by a person or entity seeking to adversely possess land from the holder of fee simple title. The holder of fee simple title is not required to use his land or to act in any way to prevent his losing it unless there is an adverse user. To take Texaco's statement out of context and apply it to fee simple interests in land is improper. It effectively transforms a fee simple interest into a fee simple defeasible, e.g., a fee that "may be defeated on the happening of an event." The "event" that the majority would have defeat a fee simple is the random and unpredictable decision by public authorities to expand a public highway beyond what has actually been used.

There is simply no justification for the majority to equate the lapsing of mineral interests resulting from neglect with the government's taking of real property without just compensation or actual use. The majority astonishingly and without citation of any authority equates the abandonment of mineral interests to the implied dedication of real property because it "believe[s] that the analysis is the same under either." Ante, p 652. Texaco described the statutory extinguishment of a mineral interest as the mere "withdrawal of a remedy." Id., p 528. The majority's comparison of abandoned mineral interests to fee simple title appears to be the destruction of a constitutional right masquerading as the mere "withdrawal of a remedy." See El Paso v Simmons, 379 U.S. 497, 506-507; 85 S.Ct. 577; 13 L.Ed.2d 446 (1965).

Support to distinguish the majority's application of the highway-by-user statute from mineral lapse acts is found in Van Slooten v Larsen, 410 Mich. 21; 299 N.W.2d 704 (1980), where this Court upheld the constitutionality of Michigan's dormant minerals act. As to the claim that the dormant minerals act violated the defendant's constitutional protection against the deprivation of property without due process, this Court distinguished the effect of the dormant minerals act from statutes that require property owners in "possession of all" to act within a specified time or lose their property. The latter types of statute, this Court stated,

have been held unconstitutional because a state cannot require one in possession of all that he demands to prosecute a suit to preserve his interest when no adverse interest is asserted by suit or possession. . . . [T]he act does not unconstitutionally change defendants' property rights into mere causes of action. [ Id., pp 41-42, citing Groesbeck v Seeley, 13 Mich. 329 (1865) (emphasis added).]

A fee simple interest in real property is the "possession of all," its owner "is entitled to the entire property, with unconditional power of disposition during one's life, and descending to one's heirs and legal representatives upon one's death intestate. Such estate is unlimited as to duration, disposition, and descendibility." Black's Law Dictionary (6th ed), p 615.

The majority's conclusion that forcing a property owner to assert his right to property within the four rods prescribed by statute by some manner "calculated to interfere with, disturb, or interrupt the use by the public, or by instituting an action in court" renders his fee simple interest into a mere cause of action. Ante, p 655 (emphasis added). This interpretation violates the basic principle of fee simple title and is, therefore, unconstitutional.

The only case applying Bd of Regents' concept that the state may define property to real property did so in the context of regulatory taking, not the physical seizure of land. Lucas v South Carolina Coastal Council, 505 U.S. 1003, 1030; 112 S.Ct. 2886; 120 L.Ed.2d 798 (1992). Regulatory taking involves the effect of zoning and environmental laws that may in some way limit or affect a property owner's use of his property. However, unlike the majority's interpretation of the highway-by-user statute, such laws do not give the government the right to possess or use the property owner's land. Lucas recognized that a state may regulate real property, but held that to impose a regulation that destroys all economically beneficial or productive use of land is unconstitutional. The Court likened such regulation to a physical invasion requiring compensation. Lucas recognized that a permanent physical invasion of real property "no matter how minute the intrusion, and no matter how weighty the public purpose behind it" requires compensation. Id., p 1015. The majority's interpretation of the highway-by-user statute effects such a permanent physical invasion of real property and, therefore, is unconstitutional.

Thus, the majority's contention that the benefits of public highways justify the "slight burden" they would impose is absurd. See ante, p. 655. It is fundamentally contrary to taking jurisprudence to justify the seizure of property by balancing the value of a fee simple interest against its potential value and use to the public. To take Bd of Regents' statement that "[p]roperty interests, of course, are not created by the Constitution," id., p 577, which refers to what, if any, property right exists in a nontenured professorship, and apply it so that it destroys a property owner's fee simple interest in real property flies in the face of the Fifth Amendment's admonition: "nor shall private property be taken for public use, without just compensation," and Const 1963, art 10, § 2.

As interpreted by the majority, the statute effects the same result that Nollan would have found unconstitutional, it "make[s] an easement across [property] available to the public on a permanent basis. . . ." Id., p 831. Because the majority's interpretation of the highway-by-user statute exacts a permanent easement from all property owners whose land abuts public highways established by user beyond that actually used, I find its interpretation unconstitutional.

II

Although I would find dispositive the majority's substantive affront to the Fifth Amendment's protection of property and Const 1963, art 10, § 2, I must also address the majority's procedural due process analysis under the Fourteenth Amendment where a person is deprived of real property. The majority casually rejects the appellee's argument that the four-rod presumption under the highway-by-user statute violates due process.

At its most basic level, procedural due process requires fairness. As recited by Nowak Rotunda, Constitutional Law (4th ed), § 13.8, p 525, the essential elements of procedural due process are:

(1) adequate notice of the charges or basis for government action; (2) a neutral decision-maker; (3) an opportunity to make an oral presentation to the decision-maker; (4) an opportunity to present evidence or witnesses to the decision-maker; (5) a chance to confront and cross-examine witnesses or evidence to be used against the individual; (6) the right to have an attorney present the individual's case to the decision-maker; (7) a decision based on the record with a statement of reasons for the decision.

The fundamental unfairness caused by the majority's interpretation of the highway-by-user statute is the ineffectiveness of any notice that can be ascribed to past or present landowners by the mere enactment of the highway-by-user statute. Citing Texaco, supra, the majority states that the enactment of a statute is "generally" enough to afford citizens a "reasonable opportunity to familiarize themselves with the terms of a statute to advise its citizens of the lapse of a property right." Ante, p. 664. The application of procedural due process standards from a mineral rights case to a case involving fee simple interests in real property is simply incorrect because it is recognized that when the property taken is real property, due process requires greater procedural protection. Schroeder v City of New York, 371 U.S. 208; 83 S.Ct. 279; 9 L.Ed.2d 255 (1962); Walker v City of Hutchinson, 352 U.S. 112; 77 S.Ct. 200; 1 L.Ed.2d 178 (1956).

The United States Supreme Court has held that the notice required when real property is taken is more than the mere enactment of a statute. Id. When real property is taken, due process requires that notice be given by mail to both the owner and the mortgagee of the property. Id. These cases found that forms of notification such as posting notices on trees and in local papers were insufficient where the name and address of persons directly affected are easily ascertainable. Given that this Court and MCL 211.61a; MSA 7.106 afford a property owner who has become delinquent in property taxes due process including notice by mail reasonably calculated to reach the property owner, it is illogical and unreasonable to find less process due individuals whose property happens to abut highways established by use. It simply defies logic to assume that the enactment of a statute would be or has been sufficient to notify past, present, or future owners of property abutting public highways by user that the intent when the highway was established was to take more than that used. Because the majority's interpretation of the highway-by-user statute effects a taking of property, notice must be given beyond that which can be attributed to the mere enactment of the statute. The majority's interpretation of the highway-by-user statute ignores reason and fairness.

Furthermore, the majority's contention that 10 years provides "ample" opportunity to rebut the four-rod presumption suffers from numerable flaws. For the modern property owner, it is not just "difficult to determine the date the highway was created," ante, p 663, n 7, but rather it is practically impossible to demonstrate that a predecessor rebutted the presumption. The first obstacle is determining when a road began being used by the public. The second is to determine whether at that time, up to 160 years ago, the property owner acted in any way to rebut the presumption. The third is discovering if ever over the course of the subsequent years the highway was lost by nonuse. Physical proof of ancient fences or agricultural uses may be long faded. The memories of old-timers may well be rendered unavailable by death or may be too imprecise to assist a modern day property owner attempting to exclude public users beyond the extent of the highway actually used.

Most importantly, as addressed in part I(B)(1), our Court has not consistently agreed with the majority's interpretation of the statute or found it to be constitutional. Indeed, a leading authority on Michigan real property law recognized that there was "confusion" in early decisions regarding the scope of a public highway established by user. 2 Cameron, Michigan Real Property Law (2d ed), § 25.9, pp 1162-1163. Cameron concluded, following this Court's decision in Eager, supra, however, that it is now "fairly clear" that such highways are limited to the extent of use, even though the statute itself states that public highways "`shall be 4 rods in width.'" Id., p 1162.

The significance that this Court's inconsistency regarding both the meaning of the highway-by-user statute and whether the majority's interpretation is constitutional would have had on the expectations of property owners and purchasers of lands abutting highways throughout the years is clear. Had a highway by user begun after this Court's decision in McKay, supra, in 1886, a consultation by a property owner or potential purchaser of property with an attorney would have revealed that the statute created a highway by user only to the extent of the width actually used. Legal research after 1924 and this Court's decision in Smith v State Hwy Comm'r, supra, would have shown the application now proposed to be expressly unconstitutional. It is fundamentally unfair to take a modern property owner's land because of a predecessor's failure to act, when it would have reasonably been understood by the predecessor, given the decisions of this Court, that no action was necessary to limit the width of a public highway to the extent actually used.

The highway-by-user statute has seen significant changes in substance witnessed in the first half century of its creation. The length of time the statute has required to establish use is different from its original enactment in 1838. From 1838 to 1857 the statute prescribed no less than 20 years to establish a highway by user. Note, however, that there is a period between the 1846 and 1857 statutes, because both enactments prescribed 20 years for highways established before their enactment, but only 10 years after. It would have been then, and now under the majority's interpretation, very difficult if not impossible to determine how many years it took to establish a public highway by use if the use began between 1846 and 1857. From 1871 to the present, the statute has prescribed a mere 10 years. Because the majority forces a modern property owner to provide evidence that the use of four rods was rebutted by a predecessor who owned the property when the highway was first established, property owners face the additional difficulty of determining which period of years was sufficient at the time the public highway was first established.

Further, as illustrated in part I(C), the 10-year period provided owners of real property under the highway-by-user statute cannot be found sufficient, given that the dormant minerals act provides 20 years to owners of mineral interests.

Further, there are idiosyncracies in the case law that leave property owners unfairly disadvantaged. For example, it was held that a property owner's mowing within the four-rod area is insufficient to rebut the implied dedication. Eyde Bros Development Co v Eaton Co Drain Comm'r, 427 Mich. 271, 299; 398 N.W.2d 297 (1986). However, it was also held that the same and even less frequent mowing by the government is sufficient to establish use. Rigoni v Michigan Power Co, 131 Mich. App. 336, 346; 345 N.W.2d 918 (1984). This disadvantage seems particularly ironic under the majority's interpretation because the government is permitted to have land it does not even mow, while the individual can mow the same land and yet still lose it.

Turning to the case at hand, the majority states that the property within the four rods of the highway was "never owned" by the current property owners because they presented no evidence that their predecessors rebutted the presumption within the 10-year period. However, the majority cannot tell us when the 10-(or was it 20-) year period ran because there is no evidence regarding the most critical factual information to the resolution of this case, when the highway was actually established by use. While I do not doubt that 52nd Street, at issue in this case, has been a highway by user for over one hundred years, that fact standing alone cannot justify concluding that the public acquired more land than it actually used. Rather, it illustrates the extreme difficulty, or in truth the practical impossibility, faced by the current property owner in attempting to demonstrate that a predecessor rebutted the majority's unconstitutional four-rod presumption. It cannot be fair to assume that the statute provided adequate notice to the current property owner's predecessor in title, given this Court's confusion with respect to the statute's effect and constitutionality.

I would hold that the mere enactment of this statute provided insufficient notice to afford past or present abutting property owners procedural due process, given that their fee simple interest in real property was and is at stake. Indeed, the only practical notice given to abutting property owners would have been and is public use and maintenance of the road, to the extent it is actually used and maintained.

III

In conclusion, I do not question the importance of highways either historically or presently. Rather I question the government's carte blanche seizure of land, as sanctioned by the majority, beyond that actually used from private property owners for public use without compensation or proof of actual use. I would find that the highway-by-user statute is constitutional as interpreted and applied for nearly a century, that is, a highway by user is only as wide as has actually been used. I would affirm the decision of the circuit court.

BRICKLEY, J., concurred with WEAVER, J.