Ackerman v. Spring Lake Township

J. H. Gillis, J. This case is a companion to Vander Meer v. Ottawa County (1968), 12 Mich App 494, ante, and the references to the factual geographic setting may be found in that case. The area and roadways in question were platted in 1914. Lake Beach drive is indicated as a roadway running in an east-west direction along Spring Lake separated from the water only by a number of small boat lots. Ottawa and Blandford avenues are platted roadways running in a north-south direction intersecting Lake Beach drive at their northern ends and Margaret avenue to the south. Ottawa and Blandford avenues are both one block long with no other streets intersecting between Lake Beach drive and Margaret avenue. Ottawa avenue is platted at *500 an overall length of 270 feet and Blandford avenue at a length of 374.42 feet. In Vander Meer, as in the instant case, the dispute arises from an attempt by the owners of some of the large residential lots in the viciixity to vacate various poi'tions of the platted roadways aixd to use them for private purposes. Petitioners in Vander Meer sought to have vacated the portion of Lake Beach drive from Franklin avenue on the west, past Ottawa avenue up to Blandford avenue on the east. We there held that objections by the boat lot owners who use Lake Beach drive for access to their lots were reasonable objections which would defeat the vacation even though no public dedication or acceptance of the plat was made. In the present case plaintiffs seek to preserve the unimproved character of the northern “stub ends” of Ottawa and Blandford avenues. Plaintiffs claim that the county has not formally accepted these “ends” of the streets and has not undertaken to improve the northerly 65.8 feet of Ottawa avenue and the northerly 79.42 feet of Blandford avenue. The balance of both streets has admittedly been improved and made part of the public highway system. Both “stub ends” in question were unimproved and had not been maintained by the public authorities as of the time this present lawsuit was instituted. Suit was brought in June, 1964, to enjoin defeixdant township from grading and opening the “stub ends” of Ottawa and Blandford avenues. After a trial on the merits the trial court dismissed the complaint and dexxied an injunction pending appeal to this Court. On March 3, 1967 this Court likewise denied a motion for continuation of the temporary injunction pending appeal. We are advised by briefs of counsel that defendant has already graded *501 and graveled the roadways and opened them to travel to Lake Beach drive. By resolution of the Ottawa board of county road commissioners on March 14, 1940, the platted roadways here in question were formally accepted and made a part of the county road system. * Thereafter the evidence is undisputed that the public authorities did undertake to open and maintain the majority of the length of Ottawa and Blandford avenues. Plaintiffs assert, however, that the 1940 resolution came too late to constitute a valid formal acceptance and that, moreover, the county has nonetheless failed to accept the “stub ends” in question. The first contention is answered by In re Vacation of Cara Avenue (1957), 350 Mich 283, 289, 290. In that case the county formally accepted a 1909 platted dedication by resolution of 1937 and the Supreme Court held this period of time not to be excessive: “Michigan case law generally holds that where dedication is not followed by formal acceptance within a reasonable time, nonetheless what constitutes such a reasonable time is governed by the circumstances, and so long as the original proprietors, or their assignees, take no steps to withdraw the offer, it is held to be continuing.” If length of time after dedication is to be the governing criterion, then this present case (26 years) is very similar to Gara Avenue (28 years) and considerably shorter than the 87 years found objectionable in Shewchuch v. City of Cheboygan (1963), 372 Mich 110. Likewise the present case is to be distinguished from circumstances indicating a withdrawal of the offer of dedication by acts of the platters or their assignees inconsistent with the pro *502 posed public use. See County of Wayne v. Miller (1875), 31 Mich 447. This is consistent Avith a general statement of tbe guiding rule such as found in In re Petition of Bryant (1949), 323 Midi 424, and tbe above-quoted passage from In re Vacation of Cara Avenue, supra. The circumstances in the present case are virtually identical to those in the Cara Avenue Case and the application of the rule in that case in favor of valid acceptance is likewise binding on us. Plaintiffs would next contend that if a valid acceptance did take place in 1940, that acceptance was only to a portion of the streets, that which was improved, and did not include the disputed stub ends. The argument is not well founded. In Hooker v. City of Grosse Pointe (1950), 328 Mich 621, 631 the Court stated: “ ‘It is not essential that every part of a highway should be worked in order to evidence the intention of the public authorities to accept and maintain the entire highway.’ ” A similar statement is found in In re Vacation of Cara Avenue, supra. Although other jurisdictions have taken various positions with respect to acceptance of part of a highway upon acceptance of the Avhole (see Annotation, 32 ALR2d 953), Michigan has most clearly adopted the rule set forth above. We find, therefore, that there Avas an acceptance for the public of the entire lengths of Ottawa and Blandford avenues and that there is no support in the record for a contention that the county thereafter intended to withdraw or abandon its acceptance. Proof of abandonment must be borne by the asserting party. West Michigan Park Association v. Department of Conservation (1966), 2 Mich App 254. There is insufficient support for such a conclusion in the present record. *503 The trial court’s finding of public use of Ottawa and'Blandíord avenues is not in error and the injunction against improving the ends of these streets was properly denied. Affirmed. No costs, a public question being involved. Holbrook, P. J., and Burns, J., concurred. Footnotes [*] McNitt Act, § 2, CL 1948, § 247.2 (Stat Ann § 9.142) repealed by PA 1951, No 51, currently CLS 1961, § 247.669 (Stat Ann 1958 Rev § 9.1097[19]).