Michigan: No Prescriptive Rights Arise from Misuse of Dedicated Area
In 2012 the Michigan Legislature passed PA 56 in an attempt to stop the misappropriation of public road ends by private individuals. Though PA 56 carries criminal penalties, a recent Court of Appeals decision reflects that abuses continue.
In Colthurst v Bryan, the plaintiff owned property on Wamplers Lake in Lenawee County. The defendants were "back lot" owners who had used the Elm Court road end for more than 50 years to maintain docks, install boat lifts, and moor boats seasonally.
Elm Court was dedicated to the public in the First Addition to Oak Shade Park Plat, approved in 1926. The defendants sought to defend and retain their historical uses by arguing that:
Their activities were within the scope of the plat's dedication; and
They had acquired prescriptive rights to continue historical uses, dating back more than 50 years.
The Court of Appeals rejected the defendants' arguments.
On the scope of dedication issue, the Court noted that the burden was on the defendants to prove that the plat proprietor intended "anything other than mere access to the lake." Significantly, though frequently lost on back lot owners and their counsel, the Court reiterated that evidence of uses after dedication of the plat are not useful in determining the dedicator's intent.
Though there appeared to be some confusion among the defendants as to whether they were claiming public or private prescriptive rights, their claims were rejected. Regarding a public easement by prescription, the Court held that long-term use by individuals is insufficient, absent governmental action to facilitate and control that use.
The defendants' private prescriptive rights claim was based on construction and maintenance of a seawall, erecting a "no trespassing" sign, and erecting docks, installing boat lifts, and seasonally mooring boats for more than 50 years. Though not discussed in the Court's opinion, such actions are routinely rejected by courts because the required element of "adversity" is lacking. The plat dedication provided the defendants with certain use rights. Abusing those rights does not create additional rights. The Court's opinion limited the defendants' use to "access to the surface of the water in a reasonable manner."