If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

LANNY L. SCOBY, Trustee of the LANNY L. 

SCOBY TRUST and KAREN S. SCOBY, Trustee of 

the KAREN S. SCOBY TRUST,

Plaintiffs-Appellants,

FOR PUBLICATION

January 25, 2024

9:30 a.m.

v No. 364152

Barry Circuit Court

BRIAN H. MITCHELL and BARRY COUNTY 

ROAD COMMISSION,

LC No. 2022-000139-CZ

Defendants-Appellees,

and

SCOTT R. RANBURGER, JULIE A. 

RANBURGER, DEPARTMENT OF NATURAL 

RESOURCES, MI DOO, SONJIA KANG, ROBERT 

S. VANPUTTEN, ROGER ONDERSMA, BARRY 

COUNTY DRAIN COMMISSION, IRVING 

TOWNSHIP, CONSUMERS ENERGY CO., 

GREAT LAKES ENERGY, DIRECTOR OF 

DEPARTMENT OF LICENSING AND 

REGULATORY AFFAIRS, and STATE 

TREASURER,

Defendants.

Before: REDFORD, P.J., and RIORDAN and FEENEY, JJ.

PER CURIAM.

In this action brought by plaintiffs to quiet title to an unimproved road, plaintiffs Lanny L. 

Scoby, as trustee of the Lanny L. Scoby Trust, and Karen S. Scoby, as trustee of the Karen S. 

Scoby Trust, appeal as of right the trial court’s order dismissing plaintiffs’ claims against defendant 

Brian H. Mitchell. Although that was the trial court’s final order, plaintiffs’ issues on appeal 
-2-

concern the trial court’s earlier order granting summary disposition to defendant Barry County 

Road Commission, which resulted in the dismissal of all the other defendants listed in the case 

caption, except for Mitchell.

At issue in this case is whether the Road Commission abandoned a public road, Loftus 

Road; whether the property on which the road was situated now belongs to plaintiffs and other 

landowners whose property abutted Loftus Road; and whether Mitchell may improve Loftus Road 

to access his property. Plaintiffs argue on appeal that the trial court erred by granting the Road 

Commission’s motion for summary disposition pursuant to MCR 2.116(C)(7) (immunity granted 

by law) because MCL 600.5821(2) and MCL 224.18 do not preclude plaintiffs’ claim for commonlaw abandonment of a public road. Plaintiffs further argue that the trial court erred when it ruled 

that the Road Commission did not abandon Loftus Road. We agree with plaintiffs and reverse the 

trial court’s grant of summary disposition to the Road Commission.

I. FACTS

In 2002, Lanny and Karen Scoby bought property in Irving Township in Barry County 

from seller Solomon Road, LLC. In March 2021, Mitchell bought a neighboring parcel of land 

from Peter and Phillip Fields. Other defendants, including individuals and the State of Michigan, 

own property in the same area of Loftus Road in Irving Township, including Scott R. Ranburger, 

Julie A. Ranburger, Mi Doo, Sonjia Kang, Robert S. VanPutten, and Roger Ondersma.

On May 10, 2021, Mitchell’s counsel sent a letter to plaintiffs and defendants Mi Doo and 

Sonjia Kang, stating that, on June, 2, 2021, Mitchell planned to make improvements to Loftus 

Road, along the southern edge of their properties, to access his land from Solomon Road. In 

response, plaintiffs’ counsel sent an e-mail to Mitchell’s counsel on May 19, 2021, stating that 

there was no county road across plaintiffs’ property, Mitchell did not have the right to use any of 

plaintiffs’ property for access to his parcel from Solomon Road, and that Mitchell had no easement 

rights over plaintiffs’ property. 

In response, Mitchell’s counsel sent an e-mail stating that Mitchell would not proceed with 

any improvements and would try to find other, more favorable routes to the property, but he noted 

that Loftus Road was accepted as a road and was not abandoned by the Road Commission. On 

January 19, 2022, Mitchell’s counsel sent a letter to plaintiffs’ counsel stating that Mitchell 

intended to “have the extension of Loftus Road surveyed.” Mitchell’s counsel further stated that 

the chief engineer at the Road Commission stated that Loftus Road was not abandoned. Therefore, 

Mitchell planned to obtain a driveway permit off Loftus Road so that he could access his property. 

According to Mitchell’s counsel, the survey would determine whether the roadbed of Loftus Road 

was on plaintiffs’ property. Mitchell’s counsel stated that, although “the road has been in dis-use 

for awhile, the road bed clearly exists.”
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The parties were unable to reach an agreement, and the instant litigation resulted.

1

 For the 

purposes of this appeal, the issue before the trial court was whether a disputed portion of Loftus 

Road was abandoned by the Road Commission under the common law. The Road Commission 

moved for summary disposition under MCR 2.116(C)(7), arguing that MCL 600.5821 bars actions 

against road commissions to quiet title to public rights of way if the claim is for adverse possession 

or acquiescence, which includes plaintiffs’ claim of common-law abandonment in the instant case. 

The Road Commission further argued that MCL 600.5821(2)(a) provides that statutes of 

limitations do not apply to claims against road commissions, so a claim that lands may be 

recovered after a period of 15 years cannot apply to the Road Commission. Moreover, according 

to the Road Commission, MCL 224.18, among other related statutes, provides the only method for 

a road commission to abandon a public road. And, the Road Commission noted, MCL 224.18 was 

not satisfied here. Mitchell moved for summary disposition as well.

On September 7, 2022, the trial court held a hearing on defendants’ motions for summary 

disposition, during which the parties reiterated the arguments set forth in their briefs. The Road 

Commission argued that it had the sole authority to abandon a road and that it had not abandoned 

Loftus Road. In addition, Mitchell argued that the trial court should grant summary disposition to 

all defendants because plaintiffs failed to allege any facts to show an intent to abandon Loftus 

Road. Plaintiffs responded that it was premature for the trial court to grant summary disposition 

to any defendant because discovery was incomplete. Thus, plaintiffs could not present all facts 

related to their claims. Plaintiffs further asserted that abandonment of Loftus Road occurred before 

1980, so property rights vested before MCL 224.18 and MCL 600.5821 were enacted.

The trial court acknowledged that this area of the law is “fluid,” but ultimately, it granted 

the Road Commission’s motion for summary disposition. The trial court ruled that, despite their 

assertion that Loftus Road was abandoned, plaintiffs failed to allege any facts that would show 

that the Road Commission intended to abandon the road. The trial court agreed with the Road 

Commission that MCL 224.18 controls how a road commission may abandon a road and that the 

statute was not satisfied here. Further, the trial court ruled that any abandoned land became the 

property of the township and that plaintiffs could not claim ownership of it by claiming the Loftus 

Road property as their own.

On September 28, 2022, the trial court entered an order dismissing plaintiffs’ claims except 

for those against Mitchell. Thereafter, the trial court dismissed plaintiffs’ remaining claims against 

Mitchell as well.

Plaintiffs now appeal.

II. STANDARD OF REVIEW

This Court reviews motions for summary disposition pursuant to MCR 2.116(C)(7) 

de novo. Russell v Detroit, 321 Mich App 628, 631; 909 NW2d 507 (2017). “A defendant is 

 

1 On the same day as the survey and without notice to plaintiffs, Mitchell cleared a path with his 

“Bobcat” along the survey line. This prompted plaintiffs to seek a preliminary injunction against 

Mitchell.
-4-

entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff’s claims are barred because 

of immunity granted by law.” Milot v Dep’t of Transp, 318 Mich App 272, 275; 897 NW2d 248 

(2016). “If reasonable minds could not differ on the legal effects of the facts, it is a question of 

law whether governmental immunity bars a plaintiff’s claim.” Id. at 275-276. This Court reviews 

questions of law, including questions of statutory interpretation, de novo. See id. at 276.

III. MCL 600.5821

Plaintiffs argue that the trial court erred by ruling that their claim of common-law 

abandonment of Loftus Road was barred by MCL 600.5821. We agree.

MCL 600.5821 provides, in relevant part:

(1) An action for the recovery of any land to which this state is a party is 

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) In an action involving the recovery or the possession of land, including 

a public highway, street, alley, easement, or other public ground, a municipal 

corporation, political subdivision of this state, or county road commission is not 

subject to any of the following:

(a) The periods of limitations under this act.

(b) Laches.

(c) A claim for adverse possession, acquiescence for the statutory period, or 

a prescriptive easement.

According to the Road Commission, although plaintiffs’ complaint alleges a claim of 

common-law abandonment, it is actually a claim for adverse possession because plaintiffs asserted 

in their complaint that Loftus Road was abandoned for at least 15 years, which is the length of the 

statutory period of limitations that applies to adverse possession. See Houston v Mint Group, LLC, 

335 Mich App 545, 558-559; 968 NW2d 9 (2021). The Road Commission argues that plaintiffs’ 

claim for adverse possession was barred by MCL 600.5821(2)(c), which specifically prohibits that 

cause of action from being maintained against the Road Commission.

In Wolf v Kalkaska Co Rd Comm, unpublished per curiam opinion of the Court of Appeals, 

issued August 25, 2022 (Docket No. 355746), a panel of this Court ruled that MCL 600.5821 does

not abrogate claims of common-law abandonment.2 The plaintiffs in Wolf bought property in 

Oliver Township in Kalkaska County. Id. at 2. A public road ran through the property, but the 

 

2

“Unpublished opinions are . . . not binding authority but may be persuasive or instructive.” 

Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858 (2020).
-5-

road commission had not maintained the road since it was decertified in 1970, and a prior owner 

had installed a fence and gate across it. Id. After a dispute arose over ownership of the road, the 

plaintiffs sued the road commission on a theory of abandonment to quiet title to the portion of the 

road on the plaintiffs’ property. Id.

Similar to this case, the defendant road commission in Wolf argued that it was immune 

from the plaintiffs’ claim under MCL 600.5821 because the statute prohibits claims against road 

commissions for common-law abandonment and that, further, MCL 224.18 sets forth the exclusive 

means by which a road may be abandoned. Id. As plaintiffs argue here, the plaintiffs in Wolf

argued that MCL 600.5821 and MCL 224.18 did not abrogate common-law claims of 

abandonment. Id. The trial court ruled in favor of the plaintiffs on the ground that neither statute 

indicates that the Legislature intended to abrogate the doctrine of common-law abandonment 

because MCL 600.5821(2)(c) did not mention abandonment as a prohibited claim, and pursuant to 

Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637; 662 NW2d 424 (2003), MCL 224.18 is not 

the only method by which a road commission may abandon a road within its jurisdiction. Wolf, 

unpub op at 2-3.

In deciding whether common-law abandonment remained a viable cause of action 

following the enactment of the statutes, the panel in Wolf observed that the common-law doctrine 

of abandonment of a highway was well established in our jurisprudence. Wolf, unpub op at 3, 

citing Gardens of Rest v Upper Mich Power & Light Co, 322 Mich 153, 156; 33 NW2d 741 (1948); 

Meyer v Meldrum, 237 Mich 318, 322; 211 NW 658 (1927); Ambs, 255 Mich App at 652. The 

panel also quoted the following from our Supreme Court’s opinion in Murphy v Inman, 509 Mich 

132, 153; 983 NW2d 354 (2022):

The common law remains in force until changed, amended or repealed. The 

Legislature may alter or abrogate the common law through its legislative authority. 

Yet the mere existence of a statute does not necessarily mean that the Legislature 

has exercised this authority. We presume that the Legislature knows of the 

existence of the common law when it acts. Therefore, we have stated that we will 

not lightly presume that the Legislature has abrogated the common law and that the 

Legislature should speak in no uncertain terms when it exercises its authority to 

modify the common law. As with other issues of statutory interpretation, the 

overriding question is whether the Legislature intended to abrogate the common 

law. [Wolf, unpub op at 3-4 (cleaned up).]

In considering whether the Legislature intended to abrogate common-law abandonment by 

enacting MCL 600.5821(2)(c), the panel in Wolf observed that the Legislature failed to list 

abandonment as one of the claims that may not be brought against a road commission. Id. at 3. 

As the panel explained:

[T]he clear and unambiguous language of MCL 600.5821(2)(c) lists only claims 

for “adverse possession, acquiescence for the statutory period, or a prescriptive 

easement,” not common-law abandonment. This plainly suggests that the 

Legislature did not intend to include claims for common-law abandonment in the 

list of claims barred by MCL 600.5821(2)(c). See Dawley v Hall, 501 Mich 166, 
-6-

170; 905 NW2d 863 (2018) (applying the maxim expressio unius est exclusio 

alterius—the expression of one thing is the exclusion of another). [Id. at 4.]

The panel further reasoned that, if the Legislature intended to abolish the common-law 

claim of abandonment, it would have made that clear. Id. Instead, by specifically barring claims 

like adverse possession, prescriptive easement, and acquiescence for the statutory period, but not 

listing common-law abandonment among those prohibited claims, “it cannot be said that the 

Legislature clearly intended to abrogate that common-law doctrine.” Id. The panel added that, 

because common-law abandonment has been recognized by our courts for many years, and also in 

recent cases such as Ambs, the Legislature would have been aware of the doctrine of abandonment 

when, in 2016, it amended MCL 600.5821(2)(c) to list specific claims that were barred. Id. For 

those reasons, the panel ruled that the Legislature’s decision not to include common-law 

abandonment as a claim barred by MCL 600.5821(2)(c) was knowing and intentional. Id. at 4-5.

The road commission in Wolf contended that, by prohibiting claims including acquiescence 

and adverse possession in MCL 600.5821(2)(c), the Legislature intended to bar claims with similar 

facts. Id. at 5. The panel rejected that reasoning because the Legislature specifically barred certain 

claims, not facts supporting a party’s claim. Id. As the panel explained, “[i]f the Legislature’s 

intent was to preclude potential plaintiffs from relying on certain facts, it could have easily written 

the statute in a way to effectuate that intent.” Id. For that reason, even if facts that would support 

a claim of adverse possession might also support a claim of common-law abandonment, this would 

“not intertwine the theories such that a bar of one theory is necessarily a bar of the other . . . .” Id.

The road commission in Wolf also raised the same alternative argument that the Road 

Commission advances in this case—that common-law abandonment is barred by MCL 

600.5821(2)(a) because subsection (2)(a) provides that road commissions are not subject to statutes 

of limitations, and the passage of time is part of any claim of abandonment. Id. at 5-6. The panel 

rejected this argument as a misreading of subsection (2)(a). Id. at 6. In analyzing the issue, the 

panel contrasted the language in subsections (1) and (2) of MCL 600.5821. Id. As set forth earlier, 

subsection (1) provides that, when the state is a party, actions to recover land are not subject to 

periods of limitations or laches, whereas subsection (2) provides that road commissions are not 

subject to periods of limitations. Id. We have interpreted MCL 600.5821(1) to mean that the state 

is immune from actions to quiet title because periods of limitations cannot run against the state. 

Id., citing Gorte v Dep’t of Transp, 202 Mich App 161, 167; 507 NW2d 797 (1993). However, 

the reference to statutes of limitations in subsection (2) does not apply to “actions” to quiet title to 

land, but to the governmental entity itself when it pursues such actions. Wolf, unpub op at 6-7. 

Accordingly, when a road commission is the plaintiff in a proceeding, its claim cannot be barred 

by periods of limitations. Id. at 6. The panel further reasoned that, when the Legislature amended 

the statute in 2016, it could have used the same language in both subsections (1) and (2) if it wanted 

both the state and inferior governmental entities to be immune from quiet title actions, but it failed

to do so. Id. at 7.

Moreover, as the panel in Wolf reasoned that, if the Legislature intended that quiet-title 

claims against a governmental entity can never lie if the claim involves the passage of a statutory 

period, then the Legislature’s specific ban on claims of adverse possession and acquiescence in 

subsection (2)(c) would have been mere surplusage because subsection (2)(a) would automatically 

bar both of these claims for requiring a specific passage of a term of 15 years. Id. at 7-8. As the 
-7-

panel observed, courts should not read statutes in a manner that renders words as surplusage or 

nugatory. Id.

Applying Wolf’s reasoning here, MCL 600.5821(2)(a) does not apply as a bar to plaintiffs’ 

claims because this is not an action by the Road Commission to recover possession of Loftus Road 

from plaintiffs. Had the Road Commission sued to reclaim Loftus Road, plaintiffs could not 

defend it as their property on the basis of the expiration of a period of limitations because, pursuant 

to subsection (2)(a), the Road Commission is not subject to such periods of limitations. Further, 

plaintiffs are not prohibited by subsection (2)(c) from maintaining their claim that the Road 

Commission abandoned Loftus Road because common-law abandonment is not listed as one of 

the claims abrogated by the statute.

The Road Commission and Mitchell argue that this Court should not apply the reasoning 

in Wolf because that opinion is unpublished and because it was wrongly decided. According to 

the Road Commission, the panel in Wolf should have recognized that the plaintiffs’ claim was for 

adverse possession, not common-law abandonment. However, the panel’s reasoning in Wolf, 

unpub op at 8, is instructive that, although facts that support one cause of action may also support 

another, MCL 600.5821(2) does not prohibit facts, it prohibits adverse possession as a cause of 

action against the Road Commission. A plaintiff’s claim of common-law abandonment does not 

fail merely because the claim depends on facts that also may prove an element of the claim of 

adverse possession. If plaintiffs ultimately cannot prove the elements of common-law 

abandonment, the claim will fail, but not merely because some facts overlap with another cause of 

action.3

To summarize, although unpublished, the reasoning in Wolf is instructive and supports a 

conclusion in the matter before us, that the plain language of MCL 600.5821 does not bar claims 

of common-law abandonment. Accordingly, to the extent that the trial court ruled otherwise, the 

trial court’s ruling is reversed.

IV. MCL 224.18

Plaintiffs argue that the trial court erred by ruling that the only method by which a road 

commission may abandon a public right-of-way is pursuant to MCL 224.18. We agree.

MCL 224.18 provides, in relevant part, as follows:

 

3 The Road Commission further argues that, in Wolf, the panel incorrectly ruled that the plaintiffs 

could show encroachments on the disputed road as evidence to support a claim of abandonment. 

The panel addressed that argument in Wolf, unpub op at 8 n 7, when it observed that, although 

MCL 247.190 states that encroachments on a property do not confer title to that property, evidence 

of encroachments may nonetheless constitute evidence in support of a claim of abandonment. In 

this case, as in Wolf, plaintiffs do not assert that, because someone placed drainage culverts on 

Loftus Road to benefit plaintiffs’ property, that this confers title to the property on plaintiffs. 

However, that such encroachments to the property were imposed may nonetheless be evidence to 

support a claim of abandonment.
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(3) The board of county road commissioners of any county that has adopted 

the county road system, at any time, may either relinquish jurisdiction of or 

absolutely abandon and discontinue any county road, or any part of a county road, 

by a resolution adopted by a majority vote. The vote of the county road 

commissioners in respect to either relinquishment of jurisdiction or absolute 

abandonment and discontinuance shall be taken and entered, and notice given, in 

the same manner as required in this section in cases in which county roads are 

adopted. After proceedings to relinquish jurisdiction have been had, the jurisdiction 

and control of the road, or part of the road, except as otherwise provided in this 

section, shall revert to the municipality within which the road is situated, and the 

county shall be relieved of the responsibility for the road. After proceedings to 

abandon absolutely and discontinue, the road or part of the road shall cease to exist 

as a public highway unless the unit of government that acquires the property or 

control of the property permits use as a public highway. Subject to subsection (8), 

the board, at the time of the passage of a resolution to abandon absolutely and 

discontinue any portion of a highway under its jurisdiction, shall determine in the 

resolution that it is in the best interests of the public that the highway or portion of 

the highway be absolutely abandoned and discontinued. The board shall cause a 

true copy of every resolution or other proceeding containing an accurate description 

of the lands comprising the highway or portion of the highway that has been 

absolutely abandoned and discontinued to be recorded in the office of the register 

of deeds for the county where the lands are situated.

(4) The board of county road commissioners shall not absolutely abandon 

and discontinue any highway, or part of a highway, except as provided in this 

section, upon the written petition of 7 or more freeholders of the township in which 

the road is sought to be absolutely abandoned and discontinued. The petition for 

absolutely abandoning and discontinuing a highway shall describe the road in 

general terms or by any name by which it is known, and if the absolute 

abandonment and discontinuance of only a portion of a road is asked for, that 

portion shall be specified. The petition shall be accompanied by a true and correct 

list of the names and mailing addresses of the occupants of each parcel of land 

abutting the highway, or portion of the highway, sought to be absolutely abandoned 

and discontinued, which list shall be certified to under oath by 1 of the persons 

making or presenting the petition.

This Court considered whether MCL 224.18 abrogated common-law claims of 

abandonment in Ambs, 255 Mich App at 637. In Ambs, the construction of I-94 split a public road, 

Cooks Drive, in Comstock Township. Id. at 639. When construction of the expressway finished 

in 1951, the Kalamazoo County Road Commission adopted a resolution to abandon the northern 

part of Cooks Drive pursuant to MCL 224.18, but it failed to officially abandon the southern 

portion of the road. Id. However, the road commission did not certify any part of Cooks Drive to 

receive state maintenance funds, and the road commission did not maintain any part of Cooks 

Drive after the expressway divided it. Id. In the years after Cooks Drive was split, nearby property 

owners built houses on lots abutting the road with the understanding that the road would not be 

maintained. Id. However, two other property owners were later denied variances to build homes 
-9-

on a portion of Cooks Drive because of a township ordinance that prohibited the construction of 

homes on roads that were not publicly maintained. Id. at 639-640. Landowners sought to have 

Cooks Drive recertified as a public road, but the road commission told the landowners that they 

would need to share in the cost of making improvements to the road before it would recertify the 

road. Id. at 640. The landowners sued the road commission and its board and asked the trial court 

to declare that Cooks Drive was a public road and order the defendants to recertify it. Id.

The plaintiffs moved to prevent the road commission from asserting a defense of commonlaw abandonment by nonuse because, they argued, MCL 224.18 provides the only manner by

which a public right-of-way may be abandoned. Id. at 640-641. The plaintiffs argued that the 

common-law doctrine of abandonment may be available to landowners, but that a road commission 

could not rely on this theory since the Legislature enacted and amended MCL 224.18 to provide 

more protections to landowners, not governmental entities. Id. at 641. The trial court disagreed 

and ruled that common-law abandonment was not exclusively a theory for private landowners 

because nothing in MCL 224.18 stated that the Legislature intended to abrogate all other methods 

by which a road commission may abandon a public road. Id. at 642. The case proceeded to trial, 

and the trial court ruled that the road commission abandoned the road by failing to maintain it after 

the 1951 construction of I-94. Id. at 642-643.

On appeal, this Court considered the version of MCL 224.18 that existed in the 1950s when 

the road commission stopped maintaining Cooks Drive. Id. at 644-645. At that time, the statute 

provided, in part, that “[t]he board of county road commissioners of any county which has adopted 

the county road system is hereby authorized and empowered to, at any time, either relinquish 

jurisdiction of or absolutely abandon and discontinue any county road, or any part thereof, by a 

resolution adopted by majority vote.” Id. at 644. This Court disagreed that this language required 

the road commission to follow the procedures in MCL 224.18, reasoning as follows:

Plaintiffs’ assertion that adherence to the statutory procedures set forth 

above was required for a valid abandonment of a county road reads too much into 

the plain language of the statute. Although the statute “authorized” and 

“empowered” a board of county road commissioners to absolutely abandon any 

county road by resolution adopted by majority vote, nothing in the plain language 

of the text required such a vote, and it is only upon such vote and resolution that 

the remaining procedures, i.e., notice, recording, and a determination that 

abandonment is in the best interests of the public, were required. [Ambs, 255 Mich 

App at 645.]

In so holding, this Court distinguished cases in which our Supreme Court held that the 

procedures in MCL 224.18 were mandatory by observing that the statutory procedures only apply 

once a road commission decides by resolution to abandon a road under the statute. Id. at 645-646.

Further, when considering whether the Legislature intended to dispense with the commonlaw doctrine of abandonment on the basis of its decision to provide greater safeguards to private 

property owners in amendments to MCL 224.18, this Court reasoned as follows:

Plaintiffs assert that the additional protections afforded to private interests by these 

amendments make clear a legislative intent to abrogate the out-dated theory of 
-10-

common-law abandonment. However, as discussed above, legislative intent must 

be gleaned from the specific language employed in the statute. Moreover, it is well 

established that statutes in derogation of the common law must be strictly 

construed, and will not be extended by implication to abrogate established rules of 

common law. As noted above, under the plain language of the statute at issue here, 

the additional protections afforded through amendment by the Legislature come 

into play only when a resolution to abandon is adopted by the board, which itself is 

not required. Accordingly, to read the amendments as evidence of a legislative 

intent to require adherence to the statute itself would be neither reasonable nor 

logical. [Ambs, 255 Mich App at 649 (quotation marks and citations omitted).]

This Court recently discussed the application of MCL 224.18 to common-law claims of 

abandonment in Wolf, unpub op at 9-12. As previously discussed, in Wolf, the panel ruled that 

MCL 600.5821(2) does not bar claims of common-law abandonment. Id. at 6-8. As in this case, 

the trial court in Wolf agreed with the road commission that it could not have abandoned the road 

that ran through the plaintiffs’ property because MCL 224.18 provides the only manner by which 

a road commission may abandon a public right-of-way. Id. at 9.

In considering the issue, the panel in Wolf, unpub op at 10, cited Ambs, 255 Mich App 

at 643, in which, as noted, this Court considered a version of MCL 224.18 before its amendments 

in 1996 and 2000, and ruled that, although MCL 224.18 authorized a road commission to abandon 

a public right-of-way through a resolution by majority vote, no language in the statute required a 

road commission to vote to abandon a public road. In Wolf, unpub op at 10, the panel ruled that 

the relevant language in MCL 224.18(3) on which this Court relied in Ambs did not change, and, 

therefore, pursuant to Ambs, a road commission may abandon a road by methods other than the 

manner outlined in MCL 224.18(3).

As in this case, the road commission in Wolf also cited subsection (4) of the statute to 

support its claim that a road commission cannot abandon a road by any means other than in 

MCL 224.18. Id. As set forth earlier, the statute provides that, “[t]he board of county road 

commissioners shall not absolutely abandon and discontinue any highway, or part of a highway, 

except as provided in this section, upon the written petition of 7 or more freeholders of the 

township in which the road is sought to be absolutely abandoned and discontinued.” 

MCL 224.18(4). The panel in Wolf did not interpret this sentence to mean that a road commission 

may only abandon a highway if at least seven landowners submit a petition making that request. 

Wolf, unpub op at 11. Instead, the panel ruled as follows:

A better interpretation of this sentence is that the board of county road 

commissioners can only abandon a highway or part of a highway as provided in 

MCL 224.18 upon the written petition of 7 or more freeholders of the township. 

This interpretation gives effect to the entire sentence rather than selectively 

applying the first part of the sentence and ignoring the second. [Id.]

Further, although the road commission’s interpretation of MCL 224.18(4) also was 

reasonable, the panel chose to adopt the interpretation that did not modify the common law 

because, to do so, the Legislature must express that intention “in no uncertain terms.” Id.

(quotation marks and citation omitted).
-11-

The panel in Wolf, unpub op at 11, additionally addressed an argument similar to that raised 

by the Road Commission in this case—that, in Huron Mountain Club v Marquette Co Rd Comm, 

303 Mich App 312, 324; 845 NW2d 523 (2013), this Court stated that MCL 224.18(4) 

unambiguously provides that a road commission may abandon a highway only when a petition is 

submitted as described. The panel in Wolf stated:

When read in isolation, this sentence would seem to support defendant’s position. 

Yet a simple reading of Huron Mountain Club makes clear that it never addressed 

the issue raised by defendant here. Huron Mountain Club concerned whether an 

abandonment petition initiated pursuant to MCL 224.18(4) needed to be signed by 

seven or more freeholders; this Court held that it did, and that the plaintiff’s petition 

which failed to meet this requirement was “fatally defective.” Huron Mountain 

Club, 303 Mich App at 328. The sentence of Huron Mountain Club that defendant 

relies on remains true in the context of abandonment petitions initiated pursuant to 

MCL 224.18(4), but offers no guidance on whether MCL 224.18 provides the 

exclusive means by which a county road commission can abandon a public 

highway, which is the question at issue in this case. [Wolf, unpub op at 11.]

Because nothing in MCL 224.18 indicates that the Legislature intended to abolish the 

common-law doctrine of abandonment, the panel in Wolf declined to read subsection (4) in a 

manner that would accomplish that end. Id. at 11-12.

Again, we find the reasoning in Wolf persuasive. The holding in Wolf that MCL 224.18(3)

does not preclude claims of common-law abandonment has the added support of this Court’s 

published decision in Ambs, and the holding in Wolf that MCL 224.18(4) also does not clearly 

indicate a legislative intent to abrogate common law is equally persuasive. Thus, we agree with 

the panel’s holding that, if the Legislature intended to abrogate the common-law cause of action 

for abandonment, it would have done so with clarity. Moreover, this Court should not interpret 

the statute to do so when such legislative intent is lacking.

For these reasons, the trial court erred when it granted summary disposition to the Road 

Commission on this ground.4

V. ABANDONMENT

As discussed, the trial court granted summary disposition to the Road Commission on 

plaintiffs’ claim of common-law abandonment of Loftus Road because the trial court ruled that 

plaintiffs’ claims were barred as a matter of law pursuant to MCL 600.5821 and MCL 224.18. 

Specifically, the trial court ruled that the Road Commission “is not subject to” plaintiffs’ claim of 

common-law abandonment. However, at the summary disposition hearing, the trial court further 

 

4 The Road Commission argues that MCL 600.5821 and MCL 224.18, when read together, indicate 

that the Legislature has “occupied the field” as to the abandonment of public roads. See Trentadue 

v Buckler Lawn Sprinkler, 479 Mich 378, 390; 738 NW2d 664 (2007). We disagree. As explained, 

MCL 224.18 essentially provides for an additional method of abandonment, and MCL 600.5821 

does not concern abandonment as it relates to road commissions as defendants.
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opined: “That they have not abandoned this road. That there has been no showing in the pleadings 

of an intent to relinquish the property [by] an external act, putting that intention into effect. Nonuse alone is insufficient.” In the written order granting summary disposition to the Road 

Commission, the trial court stated that “[p]laintiffs’ claim for common-law abandonment is 

dismissed with prejudice and without costs to any party for the reasons stated on the record.”

Although the trial court’s comment is not entirely clear, in our opinion, the trial court 

should not have reached the question whether plaintiffs could show common-law abandonment 

because it ruled that plaintiffs were barred from making that claim pursuant to the statutes 

previously discussed. The Road Commission did not move for summary disposition under any 

other court rule such as MCR 2.116(C)(8) (failure to state a claim on which relief can be granted) 

or MCR 2.116(C)(10) (no genuine issue of material fact). Accordingly, as to the Road 

Commission, the only issue before the trial court was whether plaintiffs’ claims were barred as a 

matter of law.

Nonetheless, we acknowledged that the trial court correctly stated that there must be some 

showing of an intent to abandon to establish a claim for common-law abandonment. As this Court 

explained in Ambs, 255 Mich App at 652:

A roadway established for public use may cease to be such by voluntary 

abandonment and nonuse. To prove such abandonment, both an intent to relinquish 

the property and external acts putting that intention into effect must be shown by 

the party asserting abandonment. [Citations omitted.]

As plaintiffs argue, the trial court appears to have concluded that plaintiffs failed to plead 

facts that would be sufficient to show the Road Commission’s intent to abandon Loftus Road. 

However, we conclude that plaintiffs should be permitted to address the merits of their claim 

following at least some time for discovery. As plaintiffs argued, a decision on the merits was 

premature when counsel had yet to take a single deposition and when he had recently learned 

through a Freedom of Information Act, MCL 15.231 et seq., request that the Road Commission 

denied having any documents related to Loftus Road. See Mackey v Dep’t of Corrections, 205 

Mich App 330, 333; 517 NW2d 303 (1994).

In their second amended complaint, plaintiffs alleged that Loftus Road currently either 

exists only on paper or was abandoned; plaintiffs and their predecessors in interest have paid 

property taxes on the entire parcel, including the roadbed; plaintiffs have exclusively used and 

occupied the area of Loftus Road for at least 15 years; the portion of Loftus Road at issue has not 

been maintained or improved; the public has not used the disputed portion of the road for many 

years; and the Road Commission had abandoned the road under the common-law definition in 

Villadsen v Mason Co Rd Comm, 268 Mich App 287, 304-305; 706 NW2d 897 (2005).

We agree that plaintiffs’ complaint does not offer much detail with regard to what conduct 

by the Road Commission might evidence its intent to abandon the road. However, plaintiffs should 

be permitted to complete discovery because there appears to be at least some factual dispute about 

the Road Commission’s history with regard to Loftus Road. For example, plaintiffs presented 

evidence that Mitchell signed an acknowledgment that Loftus Road was a private road when he 
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bought his lot in 2021, raising the question whether the Road Commission declared Loftus Road 

to be a private road at some point. Plaintiffs’ counsel also stated at the preliminary injunction 

hearing that, since 1938, no county map has shown Loftus Road west of Solomon Road as a public 

road until it appeared as a private easement on a map in 2003. Given the nonuse of Loftus Road 

for 50 years, prior owners of Mitchell’s property had to use another access point, which now 

appears to be unsuitable to Mitchell.

Other references in the record indicate that the Road Commission has declined to accept

state funds for maintenance of Loftus Road; that the road is impassible because of the construction 

of drainage culverts in the roadbed and an overgrowth of trees and vegetation; and that Jacob 

Welch, the Assistant Managing Director of the Road Commission, reported to police officers that 

the road was decertified. The Road Commission claims that reference to evidence like plaintiffs’ 

assertion that maps did not show Loftus Road for more than 60 years amounts to an impermissible 

attempt to expand the record on appeal.5 However, the Road Commission’s motion for summary 

disposition did not call for evidence on the merits of plaintiffs’ claim of abandonment, but the 

viability of that claim in light of MCL 600.5821 and MCL 224.18. The factual assertions merely 

show the extent to which further discovery is necessary to properly decide the issue of commonlaw abandonment.

Plaintiffs’ counsel also argued at the summary disposition hearing that a ruling on the facts 

was premature because he had not yet deposed anyone and the Road Commission claimed to have 

no documents regarding the history of Loftus Road. Generally, summary disposition is premature 

if granted before discovery is complete on a disputed issue. Bodnar v St John Providence, Inc, 

327 Mich App 203, 231; 933 NW2d 363 (2019). Accordingly, we hold that the trial court erred 

by dismissing abandonment as a substantive claim before discovery was complete.

VI. CONCLUSION

We conclude that the trial court erred by ruling that plaintiffs’ claim for common-law 

abandonment was precluded by MCL 600.5821 and MCL 224.18. Further, under the facts of this 

case, we also conclude that the trial court erred by indicating that plaintiffs’ claim was not factually 

supported, as doing so was premature. Therefore, we reverse and remand to the trial court for 

further proceedings consistent with our opinion. We do not retain jurisdiction.

/s/ James Robert Redford 

/s/ Michael J. Riordan 

/s/ Kathleen A. Feeney 

 

5 Plaintiffs’ counsel discussed the various maps at the preliminary injunction hearing and provided 

the trial court with a packet of maps and other recorded documents to clarify the dispute but did 

not submit them as evidence to challenge the Road Commission’s claim that plaintiffs’ claims are 

barred by statute.