___________________________________ __________________________________________________________

____________________________________________________________________________________________________________________________

___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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 roadsact), 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 Boththe 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 fir st 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 Constitutionof 1850. This predecessor of art 10, § 2 of the 1963 Constitution provided:

1 The Fifth A mendment's Taking Clause is applied to the states through the Fourteenth Amendment. Penn Central TransportationCo v New York City , 438 US 104, 122; 98 S Ct 2646; 57 L Ed 2d 631 (1978). 2The 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 det ermine d 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 Michiga n constitutioneliminated the express reference to private roads. More than eighty years before that change, the Michigan Legislature enacte d t he 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, ra nge 33 west, in Allouez Township, Keweenaw County, Michigan. Defendants own a neighboring parcel, section 13.

3Section12 is landlocked, although it canbe 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 plaint iffs in this

case. In addition to seeking a road across section 13, they seek an easement for utility lines. Inthe past, defendants have allowed members of the general public to use the trails on section 13 to access section12 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 se ction 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 determinationthat they had acquired an easement by prescription. 2 The trial court ruled against them. It also

2 "Prescriptive easements arise where a pers on 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...) 4denied 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 grant ed l eave limited to the question whether the private roads act is constitutional. 461 Mic h 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 questionof law that is r eviewed 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 C onst 1963, art 10, § 2." White Pine Hunting C lub v Schalfoski , 65 Mich App 147, 149; 237 NW2d 223 (1975).

2 (...continued) 32 Mich App 341, 343; 188 NW2d 633 (1971). 5Specifically, 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 expr essed 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 a ct ha d "nothing to do with the taking by a public authority of property for a public pur pose." Id. at 633. Instead, he opined that the act

au thor ized a permissible limitation on the private use of land. The next pan el 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, 1 998, printed at 229 Mich App 801; 587 NW2d 505 (1998). A special panel was convened to resolve the conflict between McKeighan I and Bieker. McKeighanv Grass Lake Twp Supervisor , 234 Mich App 194, 196; 593 NW2d 605 6(1999) (McKeighan II) . 3 McKeighanII upheld the constitutionality of the act. Id. at 209. It determined that the act had its origin s in the state's power to reasonably re gula te property usage, rather thanits 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 d issent ed. He felt that the

ana lo gy to a common-law easement by necessity was inappropriate. Id. at 215. He ag reed t hat 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 conclusionthat 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

3 Anappeal to this Court was filed in McKeighanII , but was dismissed when the plaintiffs sold the property in question. McKeighan v Grass Lake TwpSupervisor , 605 NW2d 319 (1999). T he ord er dismissing the case noted that this Court would have granted the application for leave to appeal. Id.

4 Althoughthe Court of Appeals followed McKeighan II as (continued...) 7A 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 domainor 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 Nollanv 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 rep lace it wi th 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. Th e commission agreed to grant the permit only if the Nolla ns a llowed 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' Conn ell bothindicated that they agreed with the vacated McKeighan decision and the dissent in McKeighan II . 8results in"a permanent physical occupation" of the property, by the government itself or othe rs, 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 th e 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 a nd continuous right to pass to and fro" over

an ot her'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 Appeal s d ecision in McKeighan II, supra, for support of their position.

5 A taking o ccur s 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. 9Whatever 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 restr icte d to furthering public uses and purposes and is not to be exercised without substantial proof that the public is primarily to be benefitted. Wh ere, 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 stat e to c ompensate the landowner, but, rather, the priv ate 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

6 410 Mich 616; 304 NW2d 455 (1981). 10convey an interest in land from one private person to another. The Court of Appeals has opine d that the private roads act merely supplements the already existing law of private easements. McKeighanII, supra at 208-209. However, the McKeighanII 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 Judg e Ho lbrook, 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 ov er t he 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).] Anim pli ed easement also arises only when the land on whichthe 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 limitationon land use that benefits the community as a whole.

11Instead, 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 atte mpt b y 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), af f'd 442 Mi ch 626; 502 NW2d 638 (1993) (analyzing a proposed taking under a ci tyordinance 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 McKeig hanI, 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 prop ert y of another . . . . [A]ny benefit to the public at large is purely incidental and far too attenuated to support a constitutional

7 Evenif we agreed with plaintiffs that the private roads act m erely authorizes a land use restriction, not a taking, the act would have to withstand constitutional scrutiny. "[A] land use restriction may co nsti tute a 'taking' if not reasonably necessary to the effectuation of a su bstan tial government purpose . . . ." Penn Central Transportation Co, n 1 supra at 122. 12taking of private property." We find that the priv ate ro ads act is unconstitutional, because it author izes 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. C ORRIGAN , C.J., and C AVA NAGH , W EAVER , T AYLOR , and Y OUNG , JJ., concurred with K ELLY , J. M

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

13