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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 15, 2001
 

GLEN TOLKSDORF and MARINDA TOLKSDORF,


DAVID PENDELL, RICHARD PENDELL and


KAREN PENDELL, JOHN LUCZAK and


MARCY LUCZAK, RICHARD DEISLER and


PATRICIA DEISLER, DENNIS HILL and


NANCY HILL, TERRENCE TORMOEN and


LYNNE TORMOEN,
 

Plaintiffs-Appellees,
 

v	 No. 115032
 

JOHN T. GRIFFITH, JANE GRIFFITH,


NORTH WOODS CONSERVANCY,


JOHN T. FOLEY, PAUL MICHAEL FOLEY, II,


and MICHELLE FOLEY SHEPPARD,
 

Defendants-Appellants,
 

GERALD DAHLGREN,
 

Defendant.
 

BEFORE THE ENTIRE BENCH (except MARKMAN, J.).
 

KELLY, J.
 

This case involves the constitutionality of the Opening
 

of Private Roads and Temporary Highways Act (the private roads
 
act), MCL 229.1 et seq.; MSA 9.281 et seq. The key issue is
 

whether the act provides for an unconstitutional taking under
 

art 10, § 2 of the Michigan Constitution of 1963. We hold that
 

it does because the act authorizes a taking and the taking
 

primarily benefits a private rather than a public purpose.
 

For that reason, we strike down the act as unconstitutional.
 

I. The History of the Private Roads Act
 

Both the Michigan and federal constitutions prohibit the
 

taking of private property for public use without just
 

compensation.1 US Constitution, Am V; Const 1963, art 10, § 2.
 

The Taking Clause of the state constitution is substantially
 

similar to that of the federal constitution. City of Kentwood
 

v Sommerdyke Estate, 458 Mich 642, 656; 581 NW2d 670 (1998).
 

Const 1963, art 10, § 2 provides:
 

[P]rivate property shall not be taken for


public use without just compensation therefor being


first made or secured in a manner prescribed by


law. Compensation shall be determined in
 

proceedings in a court of record.
 

The private roads act arose from language at art 18, § 14
 

of the Michigan Constitution of 1850. This predecessor of art
 

10, § 2 of the 1963 Constitution provided:
 

1The Fifth Amendment's Taking Clause is applied to the


states through the Fourteenth Amendment. Penn Central
 

Transportation Co v New York City, 438 US 104, 122; 98 S Ct


2646; 57 L Ed 2d 631 (1978).
 

2
 
The property of no person shall be taken for


public use without just compensation therefor.


Private roads may be opened in the manner to be


prescribed by law; but in every case the necessity


of the road and the amount of all damages to be


sustained by the opening thereof, shall be first


determined by a jury of freeholders; and such


amount, together with the expenses of the
 

proceedings, shall be paid by the person or persons


to be benefitted.
 

A similar provision is found in the Michigan Constitution
 

of 1908, art 13, §§ 1 and 3. However, the current Michigan
 

constitution eliminated the express reference to private
 

roads.
 

More than eighty years before that change, the Michigan
 

Legislature enacted the private roads act. It allows a
 

private landowner to petition the township supervisor to open
 

a private road across another landowner's property. MCL 229.1;
 

MSA 9.281. A jury consisting of property owners determines
 

whether the road is necessary. MCL 229.2; MSA 9.282. If a
 

private road is authorized, the jury then sets a dollar amount
 

that the petitioner must pay to compensate the owner of the
 

land where the road is built. MCL 229.3; MSA 9.283, MCL 229.5;
 

MSA 9.285.
 

II. The Facts and Procedural History of the Present Case
 

Plaintiffs own section 12, township 57 north, range 33
 

west, in Allouez Township, Keweenaw County, Michigan.
 

Defendants own a neighboring parcel, section 13. 


3
 
Section 12 is landlocked, although it can be accessed by
 

foot trails. Plaintiff Glen Tolksdorf acquired section 12 in
 

March of 1992, intending to develop the property and sell it
 

as lots. He attempted without success to acquire an easement
 

from surrounding property owners in order to achieve a paved
 

vehicular connection from his property to a roadway. Those who
 

purchased lots from Tolksdorf are also plaintiffs in this
 

case. In addition to seeking a road across section 13, they
 

seek an easement for utility lines.
 

In the past, defendants have allowed members of the
 

general public to use the trails on section 13 to access
 

section 12 for recreational purposes. They have also permitted
 

loggers to cross their property. However, they object to the
 

installation of a paved road and utility lines.
 

Plaintiffs sued, naming as defendants the section 13
 

property owners as well as Gerald Dahlgren, Allouez Township
 

supervisor, who had refused to commence proceedings to open a
 

private road. In their complaint, plaintiffs sought a
 

determination that they had acquired an easement by
 

prescription.2 The trial court ruled against them. It also
 

2"Prescriptive easements arise where a person uses, but


does not possess, the land of another for a particular purpose


without permission for 15 years." 1 Cameron, Michigan Real


Property Law, § 6.11, p 204 (2d ed). They are "based upon the


legal fiction of a lost grant." Id., citing Dyer v Thurston,


(continued...)
 

4
 
denied their request for a writ of mandamus that would compel
 

Dahlgren to proceed under the private roads act. 


The Court of Appeals affirmed the trial court's decision
 

concerning the easement issue. However, it found error in the
 

refusal to issue a writ. It remanded the case, with
 

instructions to direct Dahlgren to commence proceedings to
 

open a private road pursuant to the act.
 

We granted leave limited to the question whether the
 

private roads act is constitutional. 461 Mich 1014 (2000).
 

The issue whether plaintiffs acquired an easement in section
 

13 is not before us.
 

III. The Constitutionality of the Private Roads Act
 

Review of the constitutionality of a statute presents a
 

question of law that is reviewed de novo. Blank v Dep't of
 

Corrections, 462 Mich 103, 112; 611 NW2d 530 (2000). A statute
 

is presumed constitutional, unless its unconstitutionality is
 

readily apparent. Id.
 

Over the years, the Court of Appeals has struggled with
 

whether the private roads act is constitutional. In 1975, the
 

first panel to consider the question found the act "repugnant
 

to Const 1963, art 10, § 2." White Pine Hunting Club v
 

Schalfoski, 65 Mich App 147, 149; 237 NW2d 223 (1975).
 

2(...continued)


32 Mich App 341, 343; 188 NW2d 633 (1971).
 

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Specifically, White Pine Hunting Club found no public purpose
 

justifying the taking authorized by the act.
 

Seventeen years later, another panel declined to follow
 

White Pine Hunting Club, and found the act constitutional.
 

Bieker v Suttons Bay Twp Supervisor, 197 Mich App 628, 630;
 

496 NW2d 398 (1992). Bieker said that a public use was
 

embodied in the statute. Id. at 632. Specifically, the Court
 

expressed concern about the depressed value of landlocked
 

property and concluded that "providing access to land is
 

beneficial to the community as a whole." Id.
 

Judge Shepherd concurred, but wrote separately to express
 

his view that the private roads act had "nothing to do with
 

the taking by a public authority of property for a public
 

purpose." Id. at 633. Instead, he opined that the act
 

authorized a permissible limitation on the private use of
 

land.
 

The next panel to consider the act's constitutionality
 

disagreed with Bieker, but found itself constrained to follow
 

it. McKeighan v Grass Lake Twp Supervisor (McKeighan I),
 

Docket No 195437, unpublished opinion per curiam, issued May
 

8, 1998, vacated May 20, 1998, printed at 229 Mich App 801;
 

587 NW2d 505 (1998). A special panel was convened to resolve
 

the conflict between McKeighan I and Bieker. McKeighan v Grass
 

Lake Twp Supervisor, 234 Mich App 194, 196; 593 NW2d 605
 

6
 
(1999)(McKeighan II).3
 

McKeighan II upheld the constitutionality of the act. Id.
 

at 209. It determined that the act had its origins in the
 

state's power to reasonably regulate property usage, rather
 

than its power of eminent domain. Id. The Court also compared
 

the limitation it imposed on property to a common-law easement
 

by necessity. Id. at 201-202. McKeighan II concluded that "the
 

Taking Clause of Const 1963, art 10, § 2 is neither implicated
 

nor offended by the act." Id. at 210.
 

One member of the panel dissented. He felt that the
 

analogy to a common-law easement by necessity was
 

inappropriate. Id. at 215. He agreed that the private roads
 

act did not emanate from the state's power of eminent domain.
 

The land was not taken for public use, but for private use.
 

Id., citing 1 Nichols, Eminent Domain (3d ed), § 1.11, p 1-7.
 

However, he disagreed with the majority's conclusion that the
 

act did not implicate the Taking Clause. Id. at 215-216. He
 

would have found the private roads act repugnant to Const
 

1963, art 10, § 2. Id. at 217.4
 

3An appeal to this Court was filed in McKeighan II, but
 

was dismissed when the plaintiffs sold the property in


question. McKeighan v Grass Lake Twp Supervisor, 605 NW2d 319


(1999). The order dismissing the case noted that this Court


would have granted the application for leave to appeal. Id.
 

4Although the Court of Appeals followed McKeighan II as
 

(continued...)
 

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A state may not deprive any person of life, liberty, or
 

property without due process. US Const, Am XIV. The state's
 

power to take private property is called its power of eminent
 

domain or condemnation. 2 Cameron, Michigan Real Property Law,
 

§ 24.1, p 1102 (2d ed).
 

It is without question that the private roads act
 

authorizes a taking. See Nollan v California Coastal Comm, 483
 

US 825; 107 S Ct 3141; 97 L Ed 2d 677 (1987). In Nollan, the
 

plaintiffs owned beachfront property in California. They
 

wished to tear down an existing home and replace it with a
 

larger one. Id. at 828. Because the property was on the
 

seacoast, a California statute required the Nollans first to
 

obtain a permit from the Coastal Commission. Id.
 

The commission agreed to grant the permit only if the
 

Nollans allowed the public an easement over their property,
 

thereby facilitating public access to a nearby public beach.
 

Id. In analyzing whether the terms of the permit constituted
 

a taking under the Fifth and Fourteenth Amendments of the
 

federal constitution, the United States Supreme Court held:
 

In Loretto [v Teleprompter Manhattan CATV
 

Corp, 458 US 419; 102 S Ct 3164; 73 L Ed 2d 868


(1982)] we observed that where governmental action
 

4(...continued)


required by MCR 7.215(I), Judge Markman and Judge O'Connell


both indicated that they agreed with the vacated McKeighan


decision and the dissent in McKeighan II.
 

8
 
results in "a permanent physical occupation" of the


property, by the government itself or others, see


458 US, at 432-433, n 9, "our cases uniformly have


found a taking to the extent of the occupation,


without regard to whether the action achieves an


important public benefit or has only minimal
 

economic impact on the owner," id. at 434-435. We
 

think a "permanent physical occupation" has
 

occurred, for purposes of that rule, where
 

individuals are given a permanent and continuous


right to pass to and fro, so that the real property


may be continuously traversed, even though no


particular individual is permitted to station
 

himself permanently upon the premises. [Id. at 831­

832.]
 

Similarly, the private roads act gives individuals "a
 

permanent and continuous right to pass to and fro" over
 

another's property. It thus allows a "permanent physical
 

occupation" of private property by means of government action.
 

This is a taking. Nollan, supra at 832. 5
 

The next question is whether the taking authorized by the
 

private roads act is constitutionally permissible. Private
 

property may not be taken for a private purpose. Shizas v
 

Detroit, 333 Mich 44, 50; 52 NW2d 589 (1952). Plaintiffs argue
 

that the takings that the private roads act enables are those
 

for a public not a private purpose. They point to the Court
 

of Appeals decision in McKeighan II, supra, for support of
 

their position.
 

5A taking occurs even if there is a benefit to the


public. Nollan, supra at 831. Whether the government may take


the property will then depend on the interest served.
 

9
 
Whatever public interest the act serves, plaintiffs are


 primarily benefitted by it. In Poletown Neighborhood Council,
 

Inc v Detroit,6

 this Court set forth the analysis used when a
 

taking benefits both private entities and the public:
 

The power of eminent domain is restricted to


furthering public uses and purposes and is not to


be exercised without substantial proof that the


public is primarily to be benefitted. Where, as


here, the condemnation power is exercised in a way


that benefits specific and identifiable private


interests, a court inspects with heightened


scrutiny the claim that the public interest is the


predominant interest being advanced. Such public


benefit cannot be speculative or marginal but must


be clear and significant if it is to be within the


legitimate purpose as stated by the Legislature.


[Id. at 634-635.]
 

Hence, the question becomes whether the public interest
 

advanced here, access to landlocked property, is the
 

predominant interest advanced. We find that it is not. 


We are unconvinced that the public is the predominant
 

interest served by the private roads act. The very language
 

of the act reveals that it is concerned with private roads
 

having, presumably, a private not a public benefit. Also, the
 

act does not require the state to compensate the landowner,
 

but, rather, the private person petitioning for the private
 

road. MCL 229.3; MSA 9.283 and MCL 229.5; MSA 9.285. The
 

private roads act uses the state's power of eminent domain to
 

6410 Mich 616; 304 NW2d 455 (1981).
 

10
 
convey an interest in land from one private person to another.
 

The Court of Appeals has opined that the private roads
 

act merely supplements the already existing law of private
 

easements. McKeighan II, supra at 208-209. However, the
 

McKeighan II dissent accurately remarked that there is a
 

difference between easements by necessity and the interest
 

created by operation of the private roads act:
 

As noted in Judge Holbrook, Sr.'s dissent in


White Pine Hunting Club[supra at 151-152], the


analytical basis for enforcing a common-law
 

easement by necessity is the assumption that the


parties who have originally created the landlocked


parcel intended that the owner of the landlocked


parcel have access to the land over the other's


parcel. Accordingly, with a common-law easement by


necessity, "all the court is really doing is
 

enforcing the original intent of the parties." Id.
 

at 152. [McKeighan II, supra at 214-215 (Talbot,


P.J., dissenting).]
 

An implied easement also arises only when the land on
 

which the easement is sought was once part of the same parcel
 

that is now landlocked. 1 Cameron, Michigan Real Property Law,
 

§ 6.9, p 199 (2d ed). Missing from the private roads act is
 

some conduct by the party whose land is burdened or his
 

predecessor, indicating assent to the burden imposed. 


The McKeighan II dissent took the position that the
 

private roads act does not involve the state's power of
 

eminent domain. We note that the act does not impose a
 

limitation on land use that benefits the community as a whole.
 

11
 
Instead, it gives one party an interest in land the party
 

could not otherwise obtain. By eliminating the landowner's
 

right to exclude others from his property, the act conveys an
 

interest in private property from one private owner to
 

another. The taking authorized by the act appears merely to
 

be an attempt by a private entity to use the state's powers
 

"to acquire what it could not get through arm's length
 

negotiations with defendants." Lansing v Edward Rose Realty,
 

192 Mich App 551, 558; 481 NW2d 795 (1992), aff'd 442 Mich
 

626; 502 NW2d 638 (1993) (analyzing a proposed taking under a
 

city ordinance governing cable television service). The
 

result more closely resembles a taking of private property
 

than a limitation on it.7
 

Consequently, we agree with the Court of Appeals panel in
 

McKeighan I, supra at 808. "[T]he primary benefit under the
 

private roads act inures to the landlocked private landowner
 

seeking to open a private road on the property of
 

another . . . . [A]ny benefit to the public at large is purely
 

incidental and far too attenuated to support a constitutional
 

7Even if we agreed with plaintiffs that the private roads


act merely authorizes a land use restriction, not a taking,


the act would have to withstand constitutional scrutiny. "[A]


land use restriction may constitute a 'taking' if not


reasonably necessary to the effectuation of a substantial


government purpose . . . ." Penn Central Transportation Co, n
 

1 supra at 122.
 

12
 
taking of private property." We find that the private roads
 

act is unconstitutional, because it authorizes a taking of
 

private property for a predominantly private purpose.
 

We reverse the Court of Appeals decision in this case and
 

reinstate the ruling of the trial court for defendants. Bieker
 

and McKeighan II are overruled. 


CORRIGAN, C.J., and CAVANAGH, WEAVER, TAYLOR, and YOUNG, JJ.,
 

concurred with KELLY, J.
 

MARKMAN, J., took no part in the decision of this case.
 

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