Opinion
Nos. 114741, 115372.
April 25, 2001.
CoA: 199518, Leelanau CC: 95-003776-CH
SC: 115372
COA: 202691, Ottawa CC: 95-023513-CH
These cases having been briefed and orally argued, the orders of July 20, 2000, 463 Mich. 919, granting leave to appeal are vacated, and leave to appeal is denied because the Supreme Court is no longer persuaded that the questions presented should be reviewed. Court of Appeals Nos. 199518, 202691.
I respectfully dissent from the decision to vacate the grant and deny leave to appeal in these cases involving dedications of private land for public use. In particular, this Court's order will allow the possible government removal of a privately owned structure, which has stood since between 1911 and 1923 in a road end dedicated by plat in 1856, based solely upon evidence of informal acceptance by public use that may have occurred between 1856 and the construction of the structure. I believe that leave was providently granted and that the significant questions concerning private and public property rights raised in these cases should be answered by opinion.
I respectfully dissent from the decision to vacate the grant and deny because I believe the questions presented here clearly merit this Court's review. There exists considerable confusion in Michigan jurisprudence concerning the common-law rules of dedication of land for public use, whether a dedication has been accepted, and whether the time for acceptance has lapsed.
In Michigan, a valid dedication of land for a public use requires two elements: (1) a recorded plat designating the areas for public use and evidencing a clear intent by the plat proprietor to dedicate those areas to public use, and (2) acceptance by the proper public authority. Kraus v Michigan Dep't of Commerce, 451 Mich. 420, 424 (1996), citing Lee v Lake, 14 Mich. 12, 18 (1865). It is well established that a dedication in a plat of a street, alley, or other land for a public use, whether viewed as a grant or an offer, is ineffective unless accepted by the public. Vivian v Roscommon Co Bd of Rd Comm'rs, 433 Mich. 511, 517-518 (1989). The requirement of public acceptance "[is] necessary to prevent the public from becoming responsible for land that it did not want or need, and to prevent land from becoming waste property, owned or developed by no one." Kraus, supra, 451 Mich. at 424. The burden of proving acceptance of an offer of dedication is on the public authority, while the burden of proving withdrawal of the offer is on the property owner. Id. at 425.
The argument that a municipality has not timely accepted an offer of dedication may be waived by a plaintiff's failure to challenge the acceptance. Christiansen v Gerrish Twp, 239 Mich. App. 380, 392 (2000). This case is presently being held in abeyance pending the outcome of the cases herein. 620 N.W.2d 851 (2000).
While immediate acceptance is unnecessary, it is the general rule that there must be an acceptance within a reasonable time or the right may be lost. 2 Thompson, Real Property, § 372, p 471. Generally, what constitutes a reasonable time for acceptance of an offer of dedication depends on the context in which the offer was made, and the nature of the subsequent development of the land. 3 Restatement Property, § 2.18, p 320. The doctrine of reasonable time has been extended in many cases to include very long periods, provided there has been no change in the condition of the property that would preclude acceptance (i.e., length of time plus estoppel, or abandonment of the offer of dedication as demonstrated by inconsistent acts). Id. at 328-329. While lapse of time alone has not been regarded as being dispositive, it may, along with other evidence and factual circumstances, demonstrate that the offer of dedication has been revoked by the offeror or abandoned by the public. Dedication, 66 ALR 321, § 31, pp 327-328.
In Michigan, the rule of law regarding the issue of "lapse" (i.e., acceptance within a "reasonable time") regarding an offer of dedication is at best ambiguous and confusing, and at worst absolutely conflicting. This Court first addressed the issue of lapse in Baker v Johnston, 21 Mich. 319, 345-346 (1870):
When a land owner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reasonable time the land will be put in condition to subserve those uses. . . . He cannot be bound to wait and abstain indefinitely from the use of his property upon the chance that at some time or other in the remote future the public use may be secured. And his efforts to induce such acceptance and use cannot properly be regarded as anything more than repetitions and continuances of his offer, requiring some responsive action . . . . And the public can only bind the land owner by acting upon his dedication before he has an equitable right to withdraw it.
The "modern rule" of lapse was addressed by this Court in White v Smith, 37 Mich. 291, 295-296 (1877). In that case, it was determined that "so long as the original proprietor, or those claiming through him, take no steps to withdraw the offer, we think it must be considered as continuing." (Emphasis added.) Later, in Village of Grandville v Jenison, 84 Mich. 54, 67 (1890), this Court held that the public had no rights in a previously dedicated street where no action was taken to indicate acceptance of the offer for twenty years. The owner of the adjoining property subsequently took "possession" of the land, built a barn on the street, and continued to occupy the property for fourteen years "in such a way as to indicate a clear intention not to recognize the right of the public in it." Id. However, this Court later held, in Olsen v Village of Grand Beach, 282 Mich. 364, 377 (1937), that an offer of dedication remains open for at least a reasonable period of time, and, thereafter, the offer remains open until it is revoked.
This rule was most recently "reaffirmed" in Kraus, supra, but in a potentially unclear manner. According to Kraus, the rule first provides that an offer will lapse if acceptance is not made within a "reasonable time," on the basis of the factual circumstances of the case. Id. at 427-428. Yet, the decision also provides that the offer is deemed continuing unless and until it is withdrawn. Id.
The only Michigan case that appears to adhere strictly to a "mere lapse of time" rule for acceptance of an offer of dedication is Shewchuck v Cheboygan, 372 Mich. 110, 111 (1963). In that case, a plat of land was recorded in the village of Cheboygan in 1874, identifying the property as "all the streets and alleys laid down in the annexed plat as aforesaid, the same to be used as public highways only." Disagreeing with the trial court's determination that action taken by the city in 1961 constituted acceptance within a reasonable time, this Court returned to the "old rule" enunciated in Wayne Co v Miller, 31 Mich. 447 (1875), that had been eliminated in White, supra, and stated:
If the plat is only an offer to dedicate, the offer must be accepted or it may be withdrawn; and after any considerable lapse of time must be regarded as no longer open for acceptance, unless the circumstances are such as to make the offer continuous. . . . After what length of time such an offer must be regarded as withdrawn, circumstances may perhaps determine, but unless there were facts equivalent to a continuous renewal of the offer, it cannot be considered open after the lapse of a period of time sufficient to bar all actions for the recovery of lands under the statute of limitations. [ Shewchuck, supra at 113-114 (emphasis added).]
This Court held that the city's purported acceptance in 1961 of a grant made in 1874 certainly involved a "considerable lapse of time" and it was "manifest that the grant was no longer open for acceptance in 1961." Id. at 114. However, even Shewchuck implies that it is not merely passage of time, but the entirety of the circumstances involved, that determines whether the offer of dedication has "lapsed."
Further cause for confusion arises from Vivian, supra. According to Vivian, unless there are "facts equivalent to a continuous renewal of the offer, it cannot be considered open after the lapse of a period of time sufficient to bar all actions for the recovery of lands under the statute of limitations." Id. at 518, quoting Wayne Co, supra at 450-451 (Cooley, J.). Further, where the proprietor has put the dedicated land "`to a use which is inconsistent with the idea that the offer is any longer open,' the offer is deemed withdrawn and cannot thereafter be accepted." Vivian, supra at 518. Again, Vivian appears to hold that a mere passage of time is insufficient to cause an offer of dedication to cease and thereby become unamenable to acceptance by the public.
In Vivian, the issue was limited to whether the 1978 amendment of the Subdivision Control Act of 1967, adding § 255b, was applicable. Id. at 513. This Court concluded that clause 255b(2)(a) applies to plats recorded before the effective date of the 1978 amendment. It was determined that the Legislature "indicated its intent that the act should operate retroactively." Vivian, supra at 521. Because Vivian primarily addressed statutory dedication, my analysis of that case is limited to its pronouncements on the common-law principles of dedication existing before enactment of the statute. As many issues of dedication arise from factual circumstances occurring long before the effective date of the statute, the common-law principles of dedication, acceptance, and lapse discussed here are still relevant to this Court's jurisprudence.
According to this Court in Vivian, § 255b provides that ten years after the date a plat is first recorded, land dedicated to the use of the public in a plat shall be presumed to have been accepted unless rebutted by evidence establishing either "(a) [t]hat the dedication, before the effective date of this act and before acceptance, was withdrawn by the plat proprietor" or "(b) that notice of the withdrawal of dedication is recorded" within ten years after the plat was first recorded and before acceptance of the dedicated lands. Id. at 514.
Subsection 255b(2)(b) requires that notice of withdrawal of a dedication be recorded with the register of deeds and a copy forwarded to the State Treasurer within ten years after the date the plat was first recorded. According to this Court, the Legislature could not have intended the subsection to apply to a plat recorded before December 22, 1968, the date which is ten years before its enactment. Vivian, supra at 521-522.
This Court's most recent pronouncement regarding the doctrine of lapse is in Kraus, supra. There, plaintiffs contended that the offer to dedicate public roads "lapsed" automatically after fifteen years (the statutory period of limitation for adverse possession). Id. at 426. This Court disagreed, stating that such a rule would harshly deprive the public of land that was originally intended for its use merely because the public authority had not acted in situations in which public necessity had not yet required the offered property to be placed into public service, or where the funds available for such development were insufficient. Id.
The roads in dispute in Kraus were designated as avenues or boulevards in subdivision plats that had been recorded between 1901 and 1907. The plaintiffs contended that the offers to dedicate the roads to public use were not accepted by the government defendants before the offers "lapsed or were withdrawn." Id. at 423. This Court stated that the disposition of such cases would be resolved by determining whether the respective public authority manifested a timely acceptance before the property owner withdrew the offer to dedicate, or before the offer lapsed on its own; "a race, if you will, to see who first acted to claim the platted road." Id. at 425.
The Court determined that it would be arbitrary to apply a fifteen-year time line retroactively, stating that "modern" dedications for public purposes in recorded subdivision plats "are now presumed by statute to be accepted, absent timely and proper withdrawal by the plat proprietor. See the Subdivision Control Act, MCL 560.255b; MSA 26.430(255b); Vivian." Id. at 426, n 2. Kraus did not differentiate between statutory and common-law dedications, and this Court appears to have either: (1) assumed that there is no difference in the analysis dependant upon whether the offer is a valid statutory or common-law offer of dedication, or (2) assumed, without comment, that readers of the case would know that it applies only to statutory dedications.
Further, this Court concluded that offers are generally deemed withdrawn when the landowner uses the property in a way that is inconsistent with public ownership. Id. at 431. What qualifies as "inconsistent use" will, again, depend on the circumstances of each case, and acquiescence by one of the parties to the other party's use of the property will often be pivotal. Id. In Kraus, however, this Court, in potentially contradictory fashion, stated that "[a]s long as the plat proprietor or his successor took no steps to withdraw the offer to dedicate, the offer will be treated as continuing." Id. at 427 (emphasis added). Again complicating matters, the very next sentence of the Kraus opinion states: "Therefore, whether an offer to dedicate lapsed or continued depends on the circumstances of each case. While the outer limit for acceptance within a reasonable time has not been set, we note that this Court has held that a 1961 acceptance of an 1874 grant (eighty-seven years later) was unreasonably late." Id., citing Shewchuck, supra.
In this case, the Court of Appeals affirmed the trial court's holding with regard to the property at issue. Whether the arguably internally inconsistent lapse rule of Kraus, or provisions similar to those of § 255b, are applied here is a question that will not be reached by virtue of our denial. Neither does our denial assist in resolving the larger issue whether we should establish a "bright line" rule of "lapse," at least with regard to common-law dedications, as opposed to statutory offers of dedication. To date, our jurisprudence has not established a reliable standard to answer difficult questions concerning what is a reasonable time for acceptance of a public dedication, and whether that time has lapsed.
See Vivian, supra at 521-522.
Unless the law is made more clear in the matter of common-law dedication, trial courts will continue to struggle to achieve a rough form of essentially standardless justice, weighing the totality of the circumstances as best as possible and attempting to do equity in light of those circumstances. Although I fully recognize the necessity of examining a broad range of evidence, ultimately such evidence must be evaluated by a court applying certain rules of law. In my judgment, the decisions of this Court have increasingly deprived the trial courts of this state of guidance regarding these rules.
In light of the foregoing, I believe that further consideration of these cases could prove useful in establishing a clearer framework of analysis for these still recurring cases. Therefore, I believe that leave to appeal was providently granted here.
Taylor, J., joins in the statement by Markman, J.