Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
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 roads
act), 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
Both the 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
first 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 Constitution of 1850. This predecessor of art
10, § 2 of the 1963 Constitution provided:
1
The Fifth Amendment's Taking Clause is applied to the
states through the Fourteenth Amendment. Penn Central
Transportation Co v New York City, 438 US 104, 122; 98 S Ct
2646; 57 L Ed 2d 631 (1978).
2
The 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
determined 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 Michigan
constitution eliminated the express reference to private
roads.
More than eighty years before that change, the Michigan
Legislature enacted the 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, range 33
west, in Allouez Township, Keweenaw County, Michigan.
Defendants own a neighboring parcel, section 13.
3
Section 12 is landlocked, although it can be 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 plaintiffs in this
case. In addition to seeking a road across section 13, they
seek an easement for utility lines.
In the past, defendants have allowed members of the
general public to use the trails on section 13 to access
section 12 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 section 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
determination that they had acquired an easement by
prescription.2 The trial court ruled against them. It also
2
"Prescriptive easements arise where a person 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...)
4
denied 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 granted leave limited to the question whether the
private roads act is constitutional. 461 Mich 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
question of law that is reviewed 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 Const 1963, art 10, § 2." White Pine Hunting Club v
Schalfoski, 65 Mich App 147, 149; 237 NW2d 223 (1975).
2
(...continued)
32 Mich App 341, 343; 188 NW2d 633 (1971).
5
Specifically, 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
expressed 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 act had "nothing to do with
the taking by a public authority of property for a public
purpose." Id. at 633. Instead, he opined that the act
authorized a permissible limitation on the private use of
land.
The next panel 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, 1998, printed at 229 Mich App 801;
587 NW2d 505 (1998). A special panel was convened to resolve
the conflict between McKeighan I and Bieker. McKeighan v Grass
Lake Twp Supervisor, 234 Mich App 194, 196; 593 NW2d 605
6
(1999)(McKeighan II).3
McKeighan II upheld the constitutionality of the act. Id.
at 209. It determined that the act had its origins in the
state's power to reasonably regulate property usage, rather
than its 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 dissented. He felt that the
analogy to a common-law easement by necessity was
inappropriate. Id. at 215. He agreed that 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 conclusion that 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
An appeal to this Court was filed in McKeighan II, but
was dismissed when the plaintiffs sold the property in
question. McKeighan v Grass Lake Twp Supervisor, 605 NW2d 319
(1999). The order dismissing the case noted that this Court
would have granted the application for leave to appeal. Id.
4
Although the Court of Appeals followed McKeighan II as
(continued...)
7
A 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
domain or 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 Nollan v 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 replace it with 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.
The commission agreed to grant the permit only if the
Nollans allowed 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'Connell
both indicated that they agreed with the vacated McKeighan
decision and the dissent in McKeighan II.
8
results in "a permanent physical occupation" of the
property, by the government itself or others, 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 the 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 and continuous right to pass to and fro" over
another'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 Appeals decision in McKeighan II, supra, for support of
their position.
5
A taking occurs 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.
9
Whatever 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 restricted to
furthering public uses and purposes and is not to
be exercised without substantial proof that the
public is primarily to be benefitted. Where, 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 state to compensate the landowner,
but, rather, the private 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).
10
convey an interest in land from one private person to another.
The Court of Appeals has opined that the private roads
act merely supplements the already existing law of private
easements. McKeighan II, supra at 208-209. However, the
McKeighan II 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 Judge Holbrook, 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 over the 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).]
An implied easement also arises only when the land on
which the 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
limitation on land use that benefits the community as a whole.
11
Instead, 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 attempt by 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), aff'd 442 Mich
626; 502 NW2d 638 (1993) (analyzing a proposed taking under a
city ordinance 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
McKeighan I, 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 property of
another . . . . [A]ny benefit to the public at large is purely
incidental and far too attenuated to support a constitutional
7
Even if we agreed with plaintiffs that the private roads
act merely authorizes a land use restriction, not a taking,
the act would have to withstand constitutional scrutiny. "[A]
land use restriction may constitute a 'taking' if not
reasonably necessary to the effectuation of a substantial
government purpose . . . ." Penn Central Transportation Co, n
1 supra at 122.
12
taking of private property." We find that the private roads
act is unconstitutional, because it authorizes 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.
CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , and YOUNG , JJ.,
concurred with KELLY , J.
MARKMAN , J., took no part in the decision of this case.
13