STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS KEWEENAW COUNTY ROAD COMMISSION, Plaintiff-Appellant, UNPUBLISHED August 2, 2002 v No Keweenaw Circuit Court PHILLUP BRINKMAN, LC No CH Defendant-Appellee. Before: Griffin, P.J., and Hood and Sawyer, JJ. PER CURIAM. Plaintiff appeals as of right a judgment entered following a nonjury trial. We affirm. Plaintiff brought this action alleging that defendant illegally blocked the Leskinen Farm Road, land-locking other property. At trial, plaintiff presented evidence indicating that a quarter mile road was accepted into the county road system in the 1930s, and was included in the certification maps throughout the 1940s. However, defendant testified and the trial court found that defendant s family had occupied their property for about forty years, and the road was never used for public travel during that time. A two-track trail was present when his father bought the property, and it was continuously cabled off since that time. The trial court determined that Leskinen Farm Road became a public roadway under the highway by user concept and the road was neither abandoned nor decertified. However, the court also found that defendant and his family had regained full control of the land by principles of adverse possession. Accordingly, the trial court entered judgment for defendant. On appeal, plaintiff relies on MCL (2) as the basis for its argument that the trial court erred in applying adverse possession principles against plaintiff. We disagree. The requisite period for establishing adverse possession depends on the applicable limitations period set forth by statute in actions to recover land. Generally, the limitations period for the recovery or possession of land is fifteen years. MCL (4); Gorte v Dep t of Transportation, 202 Mich App 161, 165; 507 NW2d 797 (1993). If the other elements of adverse possession have been established, the rights of the party who has not asserted its rights ends at the expiration of the limitations period, and title is vested in the party claiming adverse -1-

2 possession. Id. at 168. If there is no limitations period for an entity to bring an action to recover land, then it logically follows that the entity may not lose its rights to land by adverse possession. MCL contains specific provisions addressing periods of limitation applicable to the state for recovery of land and municipal corporations for recovery of public highways. MCL states, in part: (1) Actions for the recovery of any land where the state is a party are not subject to the periods of limitations, or laches. However, a person who could have asserted claim to title by adverse possession for more than 15 years is entitled to seek any other equitable relief in an action to determine title to the land. (2) Actions brought by any municipal corporations for the recovery of the possession of any public highway, street, alley, or any other public ground are not subject to the periods of limitations. Plaintiff asserts that subsection (2) applies to plaintiff. However, it does not explain why this subsection, referring to municipal corporations, should apply to plaintiff, a county road commission. The two are different entities. In another context, the Supreme Court recognized that there are similarities in the two, but stated, A board of county road commissioners is not a municipal corporation.... Oakland Co Bd of Co Rd Comm'rs v Michigan Property & Casualty Guaranty Ass'n, 456 Mich 590, 609; 575 NW2d 751(1998). By its express terms, the statute on which plaintiff relies does not apply to plaintiff. See also Rochow v Spring Arbor Twp, 152 Mich App 773, ; 394 NW2d 102 (1986). Because the statute is not applicable to plaintiff, we apply the equitable principles that underlie the equitable remedy of adverse possession. In this regard, we note that although the procedural distinctions between law and equity no longer exist, it is still true that most of the rules of equity are characterized by a greater flexibility than those of the common law, and that courts possess greater discretion in administering equitable remedies than even the same courts have in administering common-law remedies. McClintock, Equity (2d ed), p 2. In this regard, [e]quity is said to be flexible rather than rigid, its interest justice rather than law. Dobbs, Law of Remedies (2d ed), 2.1(3), p 55. Further, [e]quity looks at the whole situation and grants or withholds relief as good conscience dictates. Thill v Danna, 240 Mich 595, 597; 216 NW 406 (1927). In the present case, equity clearly favors defendant Brinkman over plaintiff road commission. Mr. Brinkman and his immediate family and before that his father and mother have lived in a home for approximately forty years that was built on the foundation of the old Allouez Township School. Plaintiff road commission now claims that the access to defendant s home is within its impliedly dedicated roadway. If a roadway was dedicated by implication, defendant ceased maintaining the road over forty years ago. In this regard, the trial judge made the following findings of fact: Phillup Brinkman, the Defendant, testified that his family has occupied the home in which he now lives for about forty years that he grew up in the home. It -2-

3 was occupied by his parents until his father died in According to Defendant, there was never in his memory any roadway used by the public, or maintained by the Keweenaw County Road Commission, in the location where the Leskinen Farm Road is claimed to be. In fact, Defendant testified that he, and his father before him, maintained a cable across the area claimed to be a road to prevent access, piled rocks and wood in the area and continuously posted no trespassing signs on what is claimed to be the roadway. * * * During the trial the Court, accompanied by counsel, visited the site of claimed road. Various items of the Brinkman s personal property were on what would be the Leskinen Farm Road if it continued to exist. Those items included a large propane gas tank, a swimming pool, and various small pieces of property. There were numerous rock piles as well as gardens located on what would be the roadway and as one looked eastward, the claimed roadbed was covered with brush, dead falls, saplings and small trees which would prevent anything less powerful than a small bulldozer from traveling eastward along the claimed roadway from Five Mile Point Road. * * * The evidence presented persuades this Court that although the Leskinen Farm Road became a public roadway by reason of the Highway by User concept its public roadway status has terminated. That is because Mr. Brinkman and his predecessors in title, for an uninterrupted period in excess of fifteen years, beginning around 1960, took affirmative action which was open, notorious, hostile and adverse to the rights of the public with respect to the claimed roadway right of way. That affirmative action included posting no trespassing signs, turning away members of the public, placing a cable across the alleged roadway, piling wood on the alleged roadway, placing rock piles across the claimed road, maintaining gardens on it, placing various items of semi-permanent personal property on it and regularly using it as a parking and storage area. * * * For all of the above reasons, the relief requested in Plaintiff s Complaint is denied. We agree with the trial court and hold that its findings of fact are not clearly erroneous. MCR 2.613(C). In the present case, the flexible rules of equity apply. Further, after examining the whole situation, we conclude that good conscience and the interest of justice, supra, dictate that the lower court s fair and just decision be affirmed. See Sparks v Sparks, 440 Mich 141, , ; 485 NW2d 893 (1992). ( In equity cases it is not enough for the trial court to have acted in a nonarbitrary manner; it must also reach a disposition that is fair and just. Id. at 150.) -3-

4 Affirmed. /s/ Richard Allen Griffin /s/ Harold Hood -4-

5 STATE OF MICHIGAN COURT OF APPEALS KEWEENAW COUNTY ROAD COMMISSION, Plaintiff-Appellant, UNPUBLISHED August 2, 2002 v No Keweenaw Circuit Court PHILLUP BRINKMAN, LC No CH Defendant-Appellee. Before: Griffin, P.J., and Hood and Sawyer, JJ. SAWYER, J. (dissenting). I respectfully dissent. The majority bases its decision upon an argument not raised or briefed by the parties: whether a county road commission is a municipal corporation for purposes of MCL (2). The decision relied upon by the majority, Oakland Co Bd of Co Rd Comm rs v Michigan Property & Casualty Guaranty Ass n, 456 Mich 590; 575 NW2d 751 (1998), does not even involve road law, much less whether MCL (2) applies to county road commissions. Rather, it considered whether a county road commission could raise an equal protection argument against a state statute and the Supreme Court made the observation that a road commission is a body corporate, but not a municipal corporation. However, this is a minor part of the opinion and the statement is made without any citation to authority beyond a reference to an Attorney General opinion. In short, I am not willing to make a major pronouncement on road law sua sponte based upon a minor comment by the Supreme Court in a case wholly unrelated to the issue at bar. Accordingly, I would proceed on the basis that MCL (2) does apply to county road commissions and leave that issue for another case in which it is properly raised and briefed. And on that basis, I would reverse the trial court. The highway-by-user statute, MCL , provides: All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten 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 eight 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 four rods in -1-

6 width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two roads in width on each side of the line. A landowner may assert a right to the property within ten years after the creation of the road as a public road by use. Kentwood v Sommerdyke Estate, 458 Mich 642, 662; 581 NW2d 670 (1998). If the ten years pass without continuous assertion of right by the property owners, the law presumes that the owner intended to dedicate the entire four-rod width of the road. Id. If the owners fail to act, the property is deemed dedicated to the state. Id., 663. After the dedication, the property owner retains no interest in the property. Id. Thus, the property in question was never owned by defendant. Id., 665. In the absence of legislation to the contrary, the statute of limitations for recovery of real property does not run against the state, and therefore land held by the state cannot be acquired by adverse possession. Caywood v DNR, 71 Mich App 322, 327; 248 NW2d 253 (1976). MCL (2) provides, Actions brought by any municipal corporation for the recovery of the possession of any public highway, street, alley, or any other public ground are not subject to the period of limitations. The circuit court erred in using adverse possession principles to find that defendant could regain rights to the roadway established by implied dedication. I would reverse and remand for further proceedings, with defendant being allowed to offer evidence to rebut the presumption that the dedication was for the full statutory four-rod width. Kent Co Rd Comm v Hunting, 170 Mich App 222, 231; 428 NW2d 353 (1988). /s/ David H. Sawyer -2-