DeVoe v. Cheboygan County Road Commission

T. M. Burns, J.

Plaintiffs sought a writ of mandamus compelling defendants to either properly *178maintain a road or to abandon it. The trial court denied the writ. Plaintiffs appeal as of right.

Lake Boulevard is a county road in Indian River, Michigan, which runs parallel and adjacent to Burt Lake on one side and plaintiffs’ property on the other. The portion of the road pertinent to this suit is 10 feet wide and is part asphalt and part gravel. The record indicates that the road’s primary use is for local traffic. Part of the roadway running between the lake and plaintiffs’ property is used as a beach by the public and the resultant noise, litter and uncoordinated parking of vehicles has interferred with plaintiffs’ use and enjoyment of their property.

Plaintiffs testified, and the record indicates, that the extent of defendants’ maintenance of the road has been minimal at best and that there is a total lack of signs to control traffic on the road.

The trial court found that despite the lack of maintenance of Lake Boulevard, there was no showing that such maintenance was unreasonable relative to the maintenance of other roads in the county. The court denied the writ of mandamus because there was no showing of unreasonable, arbitrary or capricious actions by the defendants.

Do defendants have an affirmative duty to maintain Lake Boulevard in a reasonable condition?

MCLA 224.21; MSA 9.121 provides in part:

"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.”

This statute imposes an affirmative duty on the county to keep its roads in reasonable repair. *179Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969). One should not have to wait until he suffers personal injuries due to unsafe roads before he can enforce that statutory duty.

Was the trial court correct in declaring that plaintiffs failed to prove that Lake Boulevard was not kept in reasonable repair by defendants?

The trial court found that the road was not in "excellent” condition, and the court seemed to place great reliance on the fact that other roads in the county were maintained in a similar fashion. It was not error to judicially notice the relative condition of other roads, but the condition of other roads is not relevant. Defendants have an affirmative duty to keep all county roads in reasonable repair and reasonably safe for travel. That other roads are not reasonably maintained does not excuse defendants from meeting their duty as to Lake Boulevard. There was no evidence presented that the other roads were reasonably maintained.

Our de novo review of the record convinces us that Lake Boulevard is not reasonably maintained nor reasonably safe for traffic. Reasonable maintenance and safety require regular snow plowing, grading and proper signing. Lake Boulevard has not received such maintenance.

The use of the public roadway as a public beach and parking lot is improper. But the regulation of such activity is not the duty of defendants.

We hold that defendants have an affirmative duty under MCLA 224.21; MSA 9.121 to keep Lake Boulevard in reasonable repair so that it will be reasonably safe and convenient for public travel and find that defendants have breached this duty.

The other issues raised on this appeal are without merit. The judgment of the trial court is reversed, a writ of mandamus is awarded, and it is *180ordered and adjudged that defendants forthwith repair and maintain Lake Boulevard so as to be safe and convenient for public travel.

No costs, a public question being involved.

N. J. Kaufman, J., concurred.