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### STATE OF MICHIGAN

COURT OF APPEALS

GIMMY G. TRESS, ANN M. TRESS, RONALD G. THALHAMMER, Trust ee for the RONALD G. THALHAMMER TRUST, CHRISTOPHER J. MICHELS, VERONICA MICHELS, MELITA A. REUBER, Trustee for th e MARY A. MEDICO, Sole Benefit Trust, GREGORY D. FLEWELLING, WILLIAM DEVAULT, KATHY DEVAULT, JEANE GILSON, LEONA GILSON, PATRICIA DENNIS, FRE DERICK B. COWPER, SUSAN M. COWPER, JAMES R. THOMAS, JIM LUCIUS, Power of Attorney, JAMES GORMAN, THOMAS E. HOFFMEYER, and ETHELYN M. HOFFMEYER,

Plaintiffs-Appellees, UNPUBLISHED May 9, 2017

v No. 331230
Roscommon Circuit Court
ROSCOMMON COUNTY ROAD COMMISSION, CHARTER COMMUNICATIONS, TOWNSHIP OF LYON,
ROSCOMMON COUNTY DRAIN COMMISSIONER, DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION,
DIRECTOR OF THE DEPARTMENT OF
ENERGY LABOR & ECONOMIC GROWTH/DIRECTOR, FRONTIER COMMUNICATIONS, CONSUMERS ENERGY, DIANE MILLER, ELSBETH CURRY, RICK RUDER and PAULINE C. RUDDER, Trustees for
the RICK RUDER and PAULINE C. RUDER TRUST, TRUSTEES OF GAIL A WOLGAST TRUST, ROBERT L. HANSEN, KARRIE R. HANSEN, FRANKLIN J. HUNT, GLORIA A. HUNT, TRUSTEES OF CARMELA CIAVAGLIA TRUST, TR USTEES OF JOAN L. ENGLISH TRUST, TIMOTHY J. HARRIS, DEBORAH M. HARRIS, STEPHEN J. BALSAM, KATHRYN A. GOFORTH, MICHAEL R. GOFORTH, WILLIAM RAY GOFORTH, LC No. 14-722037-CH-2- JAMES P. VONDALE, CAROL L. VONDALE, CHARLES E. MIRES and LINDA S. MIRES,
Trustees of the CHARLES E. MIRES and LINDA S. MIRES TRUST, TRUSTEES OF FRED W. TIEMAN TRUST, TRUSTEES OF JOLENE K. PEACOCK TRUST, MICHAEL C. DELAERE, KEVIN I. DAWLEY, SUSAN DAWLEY, JOSEPH F. MULANEY, LAURA M. MULANEY, DAVID T. DIONESE, JOHN DAVIS, Trustee of the JOHN DAVIS TRUST, DALE D. SCHACHT, KATHLEEN S. SCHACHT, TIMOTHY L. MONET, TRUSTEES OF CLARENCE L. TYLKOWSKI TRUST, JAMES E. FRENCH, CAROL J. MCWETHY, Trustee of the CAROL J. MCWETHY TRUST, DANIEL G. DIONESE, ELLEN A. DIONESE,
TRUSTEES OF KATHLEEN M. TROCK TRUST, NORBERT C. ROOBAERT, MARY BETH ROOBAERT, BILL W. BELLAMY, ELIZABETH L. BELLAMY, ARTHUR A. LOEFFLER, CHERYL A. LOEFFLER, JAMES J. KAUFMAN, RENEE L. KAUFMAN, RONALD T. SNOW, SR., FELICIA SNOW, CAMERON ROHDY, HOI ROHDY, MICHAEL THOMAS, SHERRI THOMAS, PATR ICIA BLACKBURN, MICHAEL OLKOWSKI, DIANE OLKOWSKI, VALERIE MAE JEWELL, ROBERT M. HRIC, DOLORES L. HRIC, BRIAN RASHOTTE, KRISTINE RASHOTTE, KEITH M. ADDIS, JOHN D. MOORE, RONALD J. BYLICH, DAVID MISPELON, LAURA MISPELON, PAUL MISPELON, JENNIE MISPELON, JOHN L. TAYLOR, SCOT K. WOOD, TAMARA M. WOOD, LINDA K. RAMSEY, STEPHEN KIDD, LYNN KIDD, RICHARD E. RUSSELL and CAROLYN M. RUSSELL TRUST, RICHARD C. OLKOWSKI, COSIMO CUSUMANO, JOSEPHINE CUSUMANO, DOUGLAS W. THORNLEY, AGNES THORNLEY, DONATO SIMONE, CONNIE SIMONE, THERESA PIETRANGELO, JOHN W. THOMAS, NANCY B. ZUZIAK, JAMES A. ZUZIAK, JAMES A. KURISH, APRIL L. KURISH, JOHN L. HARRIS, VICTORIA J. HARRIS, TARAS HELEN RESIDENT AGENT, J & I LASH FAMILY, LLC
and ROBERT and DOLORES HRIC TRUST-3- Defendants,
and

JAMES M. BUTT, and MARY W. BUTT,

Defendants-Appellants.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

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The question in this case is: what happens when a county or to wnship abandons roads previously dedicated to the public? Employing only Michigan’s Land Division Act, the trial court determined that the abandoned roadway is divided in half and awarded in fee to the landowners abutting the street. However, our Supreme Court has declared that the Land Division Act may not be used to create substantive property rig hts in this fashion. Moreover, the lower court’s judgment granted exclusive use of half of each ab andoned roadway to its new owner, in contravention of long-es tablished rules regarding the rights of lot owners to use private
subdivision roads. We therefore vacate the trial court’s judgm ent and remand to allow plaintiffs to amend their complaint to see k relief under an alternate lega l theory.

I. BACKGROUND

In 1927, a developer platted and subdivided a large swath of w ooded land in Roscommon County and styled it the Hillcrest Subdivision. The area is ne ar Higgins Lake, but is separated from the water by a road and a compact row of lakeside houses. By 2014, it became apparent that Hillcrest would never meet the expectations of its designe r. The land remains wooded with only a handful of homes scattered throughout. As a result of t his sylvan state, many of the roadways marked on the plat map and dedicated to the public hav e never been cleared. Others are “two-tracks” or paths.

In 1972 and 2013, Roscommon Count y abandoned portions of vario us platted roads within Hillcrest, declaring its d isinterest in maintaining thes e passages as public roads. These abandonments included portions of Summit and Peach Roads. Owne rship of the roads then fell to Lyon Township. The township f ollowed the county’s lead and abandoned the roads as well.

Plaintiffs all own property along Peach Road or at the apex of Summit Road development. On July 18, 2014, plaintiffs filed suit against t he county, township, utility companies, certain state agencies, and every owner of land with in 300 feet of the subject roadways. 1 Plaintiffs sought to amend the pl at to vacate “those parts of the following roads, Summit Road between Lots 22 and 34, and Peach Road between 133 and 136 within the Plat of

1 These parties are required de fendants pursuant to MCL 560.224a

.-4- Hillcrest” and to vest “fee simple title absolute to the adjace nt abutting lot owners, pursuant to” MCL 560.227a of the Land Division Act, MCL 560.101 et seq

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MCL 560.221 provides that a circuit court may “vacate, correct , or revise all or part of a recorded plat.” To initiate this remedy, a lot owner within a subdivision must file a complaint seeking specific relief. MCL 560.222. MCL 560.226(1)(b) and ( c) provide that before a court may consider vacation, correcti on, or revision of a platted roa dway dedicated to a county or township, the governmental unit must first relinquish its right s. MCL 560.227a provides for the transfer of title to a vacated roadway, in relevant part, as fo llows:

(1) Title to any part of the plat vacated by the court’s judgme nt, other than a street or alley, shall vest in the rightful proprietor of that part. Title to a street or alley
the full width of which is vacated by the court’s judgment shal l vest in the rightful proprietors of the lots, within the subdivision covered by the plat, abutting the street or alley. . . .

(2) If the lots abutting the v acated street or alley on both si des belong to the same proprietor, title to the vacated street or alley shall vest in that proprietor. If the lots on opposite sides of the vacated street or alley belong to different proprietors, title up to the center line of the vacated street or alley shal l vest in the respective proprietors of the abutting lots on each side. . . .

The Butt family owns four lots—103, 104, 131, and 132—fronting on Summit Road, bordered by Maple Road to the ea st and Peach Road on the West. Summit Road dead ends at the western border of the Butts’ property. For convenience, we inc lude this inset from the plat map:-5- The Butt family objected to the vacation of Peach and Summit R oads. James Butt attested that he lives on a porti on of Summit Road that would b e affected by the court’s order.
He claimed that he uses both Peach and Summit Roads and that “h aving the use of these roads was a substantial consideration for [his] decision to purchase four lots and to invest in” his property. Mr. Butt further conte nded that he would “not be abl e to move the Fifth Wheel out of [his] pole barn without being able to use the full width of Sum mit Road.” Consistent with these objections, the Butt family sought summary dismissal of plainti ffs’ complaint pursuant to MCR 2.116(C)(8) and (10). The Butts noted that plaintiffs sought o nly to vacate those portions of the roadways that service the Butt property and that the vacation o f Summit Road “would land lock their pole barn, which faces Sum mit and houses their 36’ foot F ifth Wheel and 32 foot motor
home.”

Plaintiffs opposed the Butts’ summary disposition motion, argu ing that the county and township had already abandoned the roads. Plaintiffs further n oted that Peach Road was a “paper road” that “has never been cut in at all” and that Summi t had not been “built to specifications.” Essentially, the case boiled down to a factua l dispute regarding whether the Butts had reasonable objections to the vacation of the roadways on the plat. This required a trial, plaintiffs urged.

The circuit court denied summary relief and ordered the matter to proceed to trial. At trial, James and Mary Butt testified, as well as their neighbor s on Peach and Summit Roads, Gimmy Tress and Ron Thalhammer. The Butts contended that plain tiffs’ entire action was aimed at preventing their use of their 60-foot pole barn and th e “toys” stored within. However, Mr. Butt admitted that he received no complaints from neighbors until two years earlier when he began clearing and filling in Peach Road adjacent to his proper ty, an area which at that time was completely wooded. Mr. Butt accused Tress of building a fence down the center line of Summit Road, which the township ordered him to remove. Tress denied t hat he erected a fence. Rather,
he claimed that he install ed posts as part of a survey.

Tress indicated that when he purchased his property, the Butts had only a seasonal cottage and Summit Road was na rrow and wooded. The Butts had s ince cleared the road between the Tress and Butt properties to look like a parking lo t and cleared the Butt property so it was no longer wooded. Tress wa nted to maintain the dead end as it was then, but subsequently described that he desired the property to be maintained “[a]s i t was when [he] bought it.” Tress intended “to maintain the peace and quiet.” He was evasive whe n asked if he would allow the
Butts to continue to use the entire 50-foot width of Summit Roa d abutting their property to maneuver vehicles into their pole barn.

Thalhammer testified that his property has been in his family since the 1960s. His parents cleared Peach Road only up to their house, not all the way to Summit as platted. The stretch of platted road between Thalhammer’s property and Summi t Road (where the Butt property is situated) remained completely wooded. Moreover, Th alhammer testified that a steep “severe drop off” in the area prevented the construction of a p assable road. Recently, the Butts had “put a pathway to access up in front of [Thalhammer’s] hous e and then continued down
Peach Road.” This would serve almost like a back road to the B utts’ property and cause at least
new foot traffic in front of Thalhammer’s home.-6- The circuit court found that sin ce the creation of Hillcrest S ubdivision, individual landowners had carved out the roads described on the plat map o nly as necessary and only for personal ingress and egress. The Butts wanted to expand the us e of the roadways beyond this tradition. And the Butts’ objectio ns to plaintiffs’ request to vacate certain roadways was not reasonable, the court concluded. The trial judge noted that he had personally used large equipment like that kept in the Butts’ pole barn. He found Mr. Butt’s claimed need of the full 50-foot roadway to pull his vehicles into the pole barn “spurio us.” Accordingly, the court vacated those portions of Summit and Peach Roads adjacent to th e Butts’ property. The court
awarded fee title interest in the roadway up to the halfway mar k to the adjoining landowners. The court ruled that only easem ents of record would survive.

The Butts now appeal.

II. ANALYSIS

We “review[] a trial court’s findings of fact in a bench trial for clear error and its
conclusions of law de novo.” Alan Custom Homes, Inc v Krol , 256 Mich App 505, 512; 667 NW2d 379 (2003), citing MCR 2.613(C). “A finding is clearly er roneous where, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been
made.” Alan Custom Homes , 256 Mich App at 512

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As noted, MCL 560.227a of the LDA permits “title up to the cen ter line” of a vacated street to vest in the abutting l andowners. The purpose of this statute is “to prev ent the creation of odd strips of land when alleys [or roadways] are vacated.” Valoppi v Detroit Engineering &
Machine Co , 339 Mich 674, 678; 64 NW2d 884 (1954) (discussing a substanti vely similar predecessor statute).

When a street is platted, dedicated to the public, and the ded ication accepted, “ ‘a threefold relation to the street’ ” is sustained by the abuttin g landowners. 2000 Baum Family
Trust v Babel , 488 Mich 136, 152; 793 NW2d 633 (2010), quoting Detroit City R Co v Mills , 85 Mich 634, 653; 48 NW 1007 (1891) (G RANT , J.). The sustained relations are:

“1. As one of the general public.

2. As owner of the reversionary i nterest to the center of the s treet.

3. As owner of a lot, possessed of the right of ingress and egr ess to and from the street.” [ Id .]

The reversionary interest held by abutting landowners helps “p revent the creation of odd strips of land. . . .” Valoppi , 339 Mich at 678. Under both the common law and the statutory scheme, it has long been the rule that title to a road abandone d by the public reverts to the abutting landowners. See 2000 Baum Family Trust , 488 Mich at 155-156.

The right of ingress and egress “is considered a natural easem ent and one of the incidents of ownership or occupancy of land.” Id . at 157. Exclusive of the public right to use a road, owners of lots within a platted subdivision have a private righ t, “an incorporeal hereditament,” to use the roads as accessways. Id . (quotation marks and citation omitted). “[T]his right of acc ess-7- constitutes a property right that adds value to the land.” Id . As described by this Court in Minerva Partners, Ltd v First Passage, LLC , 274 Mich App 207, 219; 731 NW2d 472 (2007):

The purchaser of property recorde d in a plat recei ves both the interest described in the deed and the rights indicated in the plat. Kirchen v Remenga , 291 Mich 94, 102-110; 288 NW 344 (1939); Fry v Kaiser , 60 Mich App 574, 577; 232 NW2d 673 (1975). Further, “[a] grantee of property in a platted sub division acquires a private right entitling him ‘ “to the use of the streets and wa ys laid down on the plat . . . .’ ” Nelson v Roscommon Co Rd Comm , 117 Mich App 125, 132; 323 NW2d 621 (1982), quoting Rindone v Corey Community Church , 335 Mich 311, 317; 55 NW2d 844 (1952). When a county road commission abandon s a public right-of-way, it only relinquishes the public’s right to use th at road, street, or easement. See MCL 224.18(3). By bestowing the right to use st reets in a
subdivision on the owners of lo ts in that subdivision, the plat gives these owners a right to use these streets that is independent of the public’s right to use these streets once they are dedicated for public use. Accordingly, i f the platted streets in a subdivision are abandoned for public use, the lot owners s till retain a separate, private right to use the streets in that subdivision. Essentially, the lot owners retain an independent eas ement over the streets formerlydedicated for public use, which is unaffected by the road commission’s abando nment of these

streets.

See also Rindone , 117 Mich App at 316-317 (quotation marks and citation omitted ) (“These decisions adopt the view that where lands are platted and sales are made with reference to the plat, the acts of the owner in themselves merely create private rights in the grantees entitling the grantees to the use of the streets and ways laid down on the pl at or referred to in the conveyance.”).

The interplay of the second and third “relations” created conf usion in this case. But as
held in Nelson , 117 Mich App at 133, “Although title to a street which is vac ated by court judgment vests in the abutting property owners, MCL 560.227a . . ., the back-lot property owners’ right to use the platted street, a right in the nature of an easement, may remain unimpaired.” Thus, even if a platted street is vacated by cour t order, the adjoining landowners, such as Butt, continue to enjoy a right to fully use the vacate d road. Moreover, “[t]he rights granted under the dedicatory clau ses in the plat to the owners of lots in the subdivision may not be infringed by one lot owner f or his own convenience to the de triment of his fellow lot owners.” Minnis v Jyleen , 333 Mich 447, 454; 53 NW2d 328 (1952).

A lot owner seeking to protect his or her right of use must ra ise “reasonable objections to
vacation.” Vander Meer v Ottawa Co , 12 Mich App 494, 497; 163 NW2d 227 (1968). This test was culled from the language of an earlier statute that was not included in the LDA. Even so, the
test has endured. In re Gondek , 69 Mich App 73, 77; 244 NW2d 361 (1976). See also Brookshire-Big Tree Ass’n v Onieda Twp , 225 Mich App 196, 201; 570 NW2d 294 (1997).

As described by this Court, “T he test of whether an objection to vacation of a portion of a recorded plat is reasonable is not capable of precise answer.” Vander Meer , 12 Mich App at 497.

In Westveer v Ainsworth , 279 Mich 580, 584-585; 273 NW 275 (1937), a plat dedicated to-8- cottage life among undisturbed sand dunes could not be vacated to accommodate a resort. “It is a reasonable objection to vacation of the plat that it is propo sed to take from the lot owners the conditions they prize as advantages and for which they have pai d . . . .” Id . at 585. In this vein, “access to one’s property as it existed under a recorded plat a t the time of purchase forms the basis of a reasonable objection to impairment of that access by vacation.” Vander Meer , 12 Mich App at 497. In In re Upjohn , 256 Mich 181, 182-183; 239 NW 359 (1931), the Supreme Court found that a lot owner did not raise a reasonable objecti on to vacating a “driveway,” actually a road, where it had never “been opened, is difficult to locate,” and was only used as part of a golf course fairway. The mere speculation that roadw ays that the objector actually used might be closed in the future wa s insufficient to block the vac ation of other unused roadways, the
Court determined.

These examples guide our conclusion that the circuit court cle arly erred in determining that the Butts failed to raise a reasonable objection to the va cation of Summit Road. The Butts used Summit Road along the entire length of their property. At the east end where Summit intersects with Maple, the Butts erected a garage for their dai ly-use vehicles. At the far west end of their property, the Butts constructed a large pole barn and depended upon the use of Summit Road to park recreational vehicles inside. The Butts relied up on the plat description of Summit Road and denial of the use of this road will deeply impact thei r use and enjoyment of their property.

The circuit court did not clearly err, however, in determining that the Butts presented no reasonable objection to the vacation of Peach Road. Mr. Butt c laims he depended on his right to build up Peach Road as a second access point to his property fo r emergency vehicles. Mr. Butt did not deny that the topography of the area included a steep d rop off. Yet, he claimed that he intended to fill in the area to make it passable. The circuit court found this plan unlikely and credited competing evidence that the fire marshal rejected Peac h Street as a possible route to the
Butts’ house.

However, the Butts assert that the circuit court could not vac ate the roads and grant fee title interest to the abutting landowners in the manner it did. Specifically, they contend that the LDA “lays out a procedure to amend a plat to conform with the f acts that exist, but an action brought under this law will not lie unless the Plaintiffs are f irst able to show a superior claim to the property at issue under some legal theory, such as adverse possession . . . .”

The LDA “provides a process for surveying and marking subdivid ed property.” Tomecek

v Bavas , 482 Mich 484, 495; 759 NW 2d 178 (2008) (opinion by K ELLY , J.). “The LDA was
never intended to enable a court to establish an otherwise none xistent property right. Rather, the act allows a court to alter a plat to reflect property rights a lready in existence.” Id . at 496. Concerning the interplay between an action brought under the LD A and an action to quiet title, our Supreme Court has said

an action that seeks to establis h a substantive property right arises independently of an LDA action to vacate, correct, or revise a recorded plat. It is only after such a property right has been recognized that the need arises under the LDA to revise a plat that does not reflect the newly recognized property righ t. Until that property right is legally recognized, the LDA is inapplicable. The language of the-9- LDA and our cases analyzing the LDA demonstrate that an LDA act ion is appropriate when a party’s interest arises from or is traceable to the plat or the platting process. [ Beach v Township of Lima , 489 Mich 99, 102; 802 NW2d 1 (2011).]

In Tomacek , 482 Mich at 496, the Court held that the plaintiffs did not s eek, and the trial court did not effectuate, the creation of substantive property rights through the LDA. Rather, the plaintiffs sought to clarify their right to install a sewer con nection along an easement marked on the plat map for ingress and egress to a landlocked parcel. “T he trial court merely used the LDA as the tool to validate property ri ghts that already existed.” Id

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In Beach , 489 Mich at 103-104, the plain tiffs sought to declare title t o platted streets under the theory of adverse possession. The streets had never been developed and the plaintiffs had farmed the land for approximately 100 years. Id . at 104. The Supreme Court held that an equitable quiet title action was the proper method by which to establish the plaintiffs’ property rights. Id . at 110. Only when those rights we re settled could a court co rrect the plat map. Id

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Our conclusion finds support in the plain language of the LDA. The LDA defines a plat as a “map or chart of a subdivision of land.” [ MCL 560.102(a).] This Court has also described plats as “a description of the ph ysical property interests on a particular area of land.” [ Tomacek , 482 Mich 496 (opinion by

K ELLY , J.).] When a party files an LDA action to vacate, correct, o r revise a recorded plat, MCL 560.223(b) requires the plaintiff to set for th the “reasons for seeking the vacation, correction, or revision of the plat.” Ho wever, without a judicial decree showing that plaintiffs validly obtained record title to the property, there is no legal or record basis for plaintiffs to seek a vaca tion, correction, or revision of the plat. Thus, the plat accurately reflected the underlying substantive property rights until the change i n ownership rights was establ ished by plaintiffs’ adverse possession action. [ Id . at 111.]

The portion of Summit Road vacated by the trial court had alre ady been graded and filled in by the Butts. Before the county abandoned the road, it also graded and cleared snow from the area. When the county and township abandoned their interests, this portion of Summit became a private road, one still in use by both the Butts and the Tresse s. Public abandonment did not create an odd strip of land betw een the property of two owners over which rights needed to be established as contemplated in Valoppi , 339 Mich at 678. And both the Tresses and the Butts retained the right to use this portion of Summit Road for ingre ss and egress. 2000 Baum Family

Trust , 488 Mich at 152, quoting Detroit City R Co , 85 Mich at 653. The trial court could not use the LDA to eliminate the private road, divide the subject land in half, and award each side exclusive use of its portion. T his was the creation of substan tive property rights, not permitted under the statutes. Because the newly created property rights conflicted with the Butts’ right to use the road despite its abandonment, the trial court erred by failing to preserve the easement enjoyed by the Butts, which was cre ated when the roads were pla tted.

Although use of Peach Road has not been as heavy, plaintiffs s till employed an incorrect legal mechanism to establish their rights. Accordingly, we mus t vacate the trial court’s order-10- awarding fee title interests t o the roads in question based onl y on the LDA. On remand, the court must modify the order cons istent with this opinion.

We vacate the lower court’s j udgment and remand for further pr oceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ David H. Sawyer /s/ Christopher M. Murray
/s/ Elizabeth L. Gleicher