Opinion
Docket No. 70.
Decided January 25, 1966.
Appeal from Roscommon; O'Keefe (Dennis J.), J. Submitted Division 3 October 5, 1965, at Lansing. (Docket No. 70.) Decided January 25, 1966.
Bill for injunction by Michigan Central Park Association of Higgins Lake, a voluntary association, against Roscommon County Road Commission, a statutory corporation, and others to enjoin the conversion of a public road into a public beach. Injunction granted. Defendants appeal. Modified and affirmed.
Fortino, Plaxton Deatrick ( Albert J. Fortino, of counsel), for plaintiff.
Charles H. Miltner, for defendants.
The seeds for the action here being appealed were sown back at the turn of the century when the land involved, lying along Higgins lake, was platted. At that time, the plattor laid out lots
and streets in the Michigan Central Park subdivisions and along the shore of the lake showed an irregular strip of shoreline as "Michigan Central Park Boulevard". The plats designated that all streets and alleys in the subdivisions concerned were dedicated to public use.
Down through the years, until the 1950's, there was no development made by the Roscommon county road commission of Michigan Central Park Boulevard. In some places, the area was wooded down to the lake. In 1953, the defendant Roscommon county road commission came in and cleared land on Michigan Central Park boulevard between Oak and Elm streets, two streets which ran to the lake. This was not graded or graveled, but apparently there was some vehicular traffic. There is evidence in the record that protest was made at that time of the traffic. There is also evidence in the record that other parts of Michigan Central Park boulevard, in the same subdivision, have been developed by the abutting owners as lawns down to the water's edge. Furthermore, in the area between Oak and Elm streets, and within the boulevard as surveyed and platted, there have been cottages built. This has also occurred in other areas.
Referring to the 1953 clearing by the road commission, the testimony shows that the public generally started coming down into the area after the clearing.
In 1957, a chancery action was started which preceded and ties in with this case. In it, the plaintiffs sought a temporary and permanent injunction against defendant Roscommon county road commission on the theory that the dedication of the boulevard to public use had been abandoned.
In July, 1958, a decree was filed by the Roscommon county circuit court which dismissed the bill of complaint. Appeal was made but not perfected; and on December 31, 1959, parties stipulated that the unperfected appeal be dismissed.
During the course of this first case, sometime between 1957 and 1959, the Roscommon county road commission graded and graveled the roadway between Oak and Elm streets. It should be understood that this was a roadway under 30 feet wide, running for one block through Michigan Central Park boulevard, and that the boulevard as platted varies in width from under 50 feet to 200 feet.
The court in the first case found that Michigan Central Park boulevard was a public street under the jurisdiction and control of the Roscommon county board of county road commissioners.
In August, 1960, the present action was begun in chancery. In it, the plaintiff, Michigan Central Park Association of Higgins lake, a voluntary association, sought a temporary injunction restraining the defendants from turning the boulevard into a public beach; sought to have the lower court hear the case and enter an order and decree permanently enjoining defendants from so doing; and directing it to maintain the roadway and post signs indicating that the roadway was not a public beach.
The plaintiff association, composed of members from two of the Michigan Central Park subdivisions who owned lots abutting the boulevard, brought the action as a class action for all other abutting owners.
The plaintiff's theory was basically that if Michigan Central Park boulevard were a roadway, as claimed by the defendants and as found in the first case, it should be maintained as a roadway and not as a public beach; to maintain it as a public beach is contrary to the use of a public road and, furthermore, deprives them of a property interest, namely, riparian rights, without due process.
Defendants argue that since the property is platted to public use and dedicated to public use, the riparian rights are shared by the abutting owners with other lot owners in the same plat and the general public.
The basic issue then is whether or not members of plaintiff association have riparian rights in Higgins lake as owners of lots abutting Michigan Central Park boulevard.
We do not think it would serve any purpose to go into an extensive exposition of the involved arguments and various authority set forth by counsel in their excellent briefs. This Court has thoroughly and repeatedly reviewed the entire record in the case.
The lower court found that Michigan Central Park boulevard, running parallel with Higgins lake, was a public highway as contemplated by the McNitt act, as amended, CLS 1961, § 247.669 (Stat Ann 1958 Rev § 9.1097[19]) and that the public authorities had assumed jurisdiction thereof as a county road.
The McNitt-Holbeck-Smith act (CL 1948, § 247.1-247.13 [Stat Ann §§ 9.141-9.153]), was repealed and replaced by PA 1951, No 51 (CLS 1961, §§ 247.651- 247.673 [Stat Ann 1958 Rev §§ 9.1097(1)-9.1097(23)]). — REPORTER.
That court further found that the plaintiff Michigan Central Park Association of Higgins lake and all other abutting property owners have riparian rights along the shore of Higgins lake, each lot owner having riparian rights in the shore and lake opposite his lot. This finding of the court below is squarely supported by Croucher v. Wooster (1935), 271 Mich. 337, and the New York case of Johnson v. Grenell (1907), 188 N.Y. 407 ( 81 N.E. 161, 13 LRA [NS] 551) cited therein. (In both of those cases, the lots involved were part of a plat: the road in the Michigan case had been established by user, while that in the New York case had been dedicated by the plat.) The only exception to the above general proposition found by the lower court is where there is land in private ownership lying between Michigan Central Park boulevard and the lake, riparian rights belong to the owners of such lands and not to the owners of lands on the opposite side of the boulevard.
This was a chancery proceeding, having been begun in 1960. On appeal, it was transferred to this Court by the Supreme Court. A chancery appeal or, since the change of rules in 1963, an appeal which formerly would have been in chancery is heard de novo on the record. However, in such cases, great weight is given by this Court to the findings of fact of the trial judge. We do not reverse in such cases unless we find from a reading of the entire record we would have reached a different conclusion. Kren v. Rubin (1953), 338 Mich. 288; Resh v. Fox (1961), 365 Mich. 288; Stacey v. Mikolowski (1962), 367 Mich. 550; Haas v. Klapatch (1963), 370 Mich. 499. We have thoroughly reviewed the entire record, and we will not reverse the fact findings of the lower court in this case.
The separate rights, if any, of owners of lots of the subdivisions not abutting Michigan Central Park boulevard are not adjudicated in this case, except as they are members of the general public.
This Court vacates that part of the judgment of the lower court which orders the Lyon township board to assume the policing of Michigan Central Park boulevard since there is no showing in the record of legislative authority for enforcing such an order.
The Court affirms the remainder of the judgment. No costs, a public issue being involved.
QUINN, P.J., and McGREGOR, J., concurred.