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STATE OF MICHIGAN
COURT OF APPEALS


B & P LARSON FAMILY LIMITED PARTNERSHIP, Plaintiff/Counter-DefendantAppellant, v IOSCO COUNTY ROAD COMMISSION, Defendant/Counter-PlaintiffAppellee, and PLAINFIELD TOWNSHIP, Defendant-Appellee.

UNPUBLISHED January 17, 2006

No. 263619 Iosco Circuit Court LC No. 04-001098-CZ

Before: Fitzgerald, PJ. and O'Connell and Kelly, JJ. PER CURIAM. In this dispute over whether an unpaved roadway crossing plaintiff's land was a private or public road under the highway by user statute, MCL 221.20, plaintiff appeals as of right an order granting defendant road commission's motion for summary disposition. We affirm. Plaintiff owns approximately one hundred and sixty acres of land traversed by Jose Lake Road, the roadway at issue. After receiving notice that the roadway would be graded to support logging on nearby forestry land, plaintiff sought to have the portion of the roadway crossing its property declared private. Plaintiff alleged that the roadway had always been private, that only plaintiff or its predecessors had maintained it, that there was never any formal dedication or conveyance to the county, and that there has only been sporadic public use except with plaintiff's permission. After the trial court granted and then lifted a temporary restraining order against defendant road commission, the case was argued on cross-motions for summary disposition. With its brief, defendant road commission submitted 26 photographs of the roadway and excerpts from its records. The earliest excerpts are from 1935, and include a handwritten description of the roadway and a letter from the chairman of the board of defendant road -1-


commission to the Michigan State Highway Department certifying that "all of the roads approved by your Department as the fourth twenty percent of the mileage to be taken over . . . have been duly taken over as county roads and proper notice by advertising and notification to the township highway commissions . . . has been complied with." Other exhibits show the county section map from 1935 through 2003, including annual maps beginning in 1957. The trial court heard argument on the cross-motions and ruled in favor of defendant road commission: [I]t appears to me that it's obvious that . . . Jose Lake Road was accepted by the Iosco County Road Commission under the McNitt Act[1] and has been continuously certified since then; as such, obviously it was used as a public road prior to that by the residents of Plainfield Township. The road has been used by members of the public. . . . Portions of the road have been maintained by the Iosco County Road Commission. It's my understanding that if you maintain a portion of the road[,] that goes to the whole road. The whole road's been listed in maps that I've reviewed; not just a portion of it. . . . As a result, I find that Jose Lake Road is a public road at this time and defendant's Motion for summary . . . disposition is granted; Plaintiff's Motion for Summary Disposition is denied for those reasons. Plaintiff argues that the trial court erred in summarily dismissing its claim. We disagree. We review "the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review "de novo the legal requirements for establishing a highway by user, but review[] the trial court's factual findings for clear error. A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made." Villadsen v Mason Co Rd Comm, ___ Mich App ___ ; ___ NW2d ___ (Docket No 255955, issued July 19, 2005), slip op 3 (citation omitted). After reviewing the record, we conclude that the trial court did not clearly err in finding that the disputed roadway had been impliedly dedicated and then formally accepted into the county road system. The rules for designating a highway as public are well established: For a road to become public property, there generally must be a statutory dedication and an acceptance on behalf of the public, a common-law dedication and acceptance, or a finding of highway by public user. . . . Finally, establishing a public highway pursuant to the highway by user statute . . . requires (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,

"The McNitt act, 1931 PA 130, repealed by 1951 PA 51,

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Michigan Law