Bieker v. Suttons Bay Township Supervisor

Shepherd, P.J.,

(concurring). I concur in the result, but write separately because I accept the analysis of the dissenting opinion in White Pine Hunting Club v Schalkofski, 65 Mich App 147; 237 NW2d 223 (1975).

The private road act has nothing to do with the taking by a public authority of property for a public purpose. I agree with the White Pine dissent that the act is a limitation upon the use of private land similar to an easement by necessity— the difference being that in the case of the easement there must be privity of contract and the courts have implied an intention to create an easement.

In cases where there is no privity of contract (and therefore no intention to create an easement) the statute allows the same result. The only question then would be whether the statute is repugnant to the 1963 Constitution. In the White Pine *634dissent, Judge Holbrook wrote, "the aforementioned deletion from the Constitution of 1963 of the section which dealt with the power of the Legislature to create laws such as the statute in question has no necessary effect upon that statute.” 65 Mich App 153. It was his view that the only reason the language was left out was because of the mistaken belief that easement by necessity would solve the problem. I am satisfied that the private road act is not repugnant to the 1963 Constitution and was therefore preserved when the constitution was adopted.

Because I believe that the statute provides a substitute method of acquiring the same access achieved by an easement of necessity, I do not believe it is either appropriate or necessary for this Court to find a public purpose in the statute. Article 10, § 2 of the Michigan Constitution relates to the power of eminent domain. That concept relates to the power of the state to take private property. The constitutional provision says, in effect, that the state shall not take private property except for a public purpose. This case does not involve the power of eminent domain, and it is not necessary for us to look for or find a public purpose in the private road act. As indicated, that act provides a mechanism for a private landowner who is landlocked to obtain an easement across the land of another for the private purposes of the landlocked owner. Such a procedure has been with us for well over one hundred years, and I am satisfied that it does not violate- the Michigan Constitution.

I also do not believe that Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981), can be appropriately cited in this case. In Poletown, the public authorities were contemplating an official condemnation. Private individu*635als filed suit to prevent the condemnation on the basis that the proposed action did not involve a public purpose. The Supreme Court held that there was a public purpose and that the public authorities could therefore initiate condemnation. That concept has nothing to do with the present situation.