Opinion
Docket No. 100338.
Decided October 6, 1987. Leave to appeal applied for.
William S. Gregory, for the Village of Kalkaska and the County of Kalkaska.
Thomas J. Jewett, for MGM Petroleum, Ltd.
Mika, Meyers, Beckett Jones (by Mark A. Kehoe), for Shell Oil Company.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Russell E. Prins, Assistant Attorneys General, for the State of Michigan.
Before: DANHOF, C.J., and R.M. MAHER and McDONALD, JJ.
ON REMAND
This case is before us on remand by the Supreme Court to reconsider our holding in Village of Kalkaska v Shell Oil Co, 157 Mich. App. 227; 403 N.W.2d 474 (1986), in light of its recently released decision in Eyde Bros Development Co v Eaton Co Drain Comm'r, 427 Mich. 271; 398 N.W.2d 297 (1986), reh den 428 Mich. 1206 (1987). 428 Mich. 894 (1987).
In Village of Kalkaska, the precise question before us was whether a municipality has ownership rights in the oil, minerals, and gases located beneath platted streets, roads, and alleyways which have been dedicated for public use pursuant to statute. In answering that question in the negative, we adopted as our own the following holding of the trial court:
"The Village of Kalkaska is possessed of nothing which it may sell or lease. The rights to all oil, gas, and other minerals underlying platted streets, roads, and alley ways which are not reasonably and practically available and reasonably necessary and incidental to the maintenance and the operation of such public ways are owned in fee by either (a) the owners of undivided fee interests in the adjoining lots, or (b) by those persons or entities which have reserved in prior conveyances fee title to the same." [ 157 Mich. App. 230, 237.]
Upon reviewing that holding, we do not believe it to be inconsistent with Eyde Bros, which held:
[A] public easement in a highway dedicated by user is not limited to surface travel, but includes those uses, such as the installation of sewers, contemplated to be in the public interest and for the public benefit. [ 427 Mich. 286.]
In deciding Village of Kalkaska, we did not mean to intimate that a municipality's interests in public lands is, in all cases, limited to the surface rights only. We were simply presented with a situation where the municipality claimed an interest in the oil, minerals, and gas beneath its streets in order to subsidize the maintenance and utilization of those roadways. The Village of Kalkaska did not assert a claim to the oil, mineral, and gas rights as a necessary incident to the placement of public utilities or structures thereon. Even had such a claim been made, it would not have merit under the facts of this case. While mineral extraction may be appropriate to the extent necessary to place improvements in or on the property (see Cleveland v Detroit, 324 Mich. 527; 37 N.W.2d 625), such is not appropriate where the minerals are extracted solely for the purpose of marketing them and collecting the revenues (see Cuming v Prang, 24 Mich. 514). In the former situation, mineral extraction is the means to a legitimate public end; in the latter, it is the end itself, with only an incidental public use of the property. Although this distinction may be subtle, we find it to be significant and distinguishing.
Accordingly, we adhere to our earlier holding.