Lanny L Scoby Trust v. Brian H Mitchell

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

LANNY L. SCOBY, Trustee of the LANNY L. FOR PUBLICATION
SCOBY TRUST and KAREN S. SCOBY, Trustee of January 25, 2024
the KAREN S. SCOBY TRUST, 9:30 a.m.

Plaintiffs-Appellants,

v No. 364152
Barry Circuit Court
BRIAN H. MITCHELL and BARRY COUNTY LC No. 2022-000139-CZ
ROAD COMMISSION,

Defendants-Appellees,

and

SCOTT R. RANBURGER, JULIE A.
RANBURGER, DEPARTMENT OF NATURAL
RESOURCES, MI DOO, SONJIA KANG, ROBERT
S. VANPUTTEN, ROGER ONDERSMA, BARRY
COUNTY DRAIN COMMISSION, IRVING
TOWNSHIP, CONSUMERS ENERGY CO.,
GREAT LAKES ENERGY, DIRECTOR OF
DEPARTMENT OF LICENSING AND
REGULATORY AFFAIRS, and STATE
TREASURER,

Defendants.

Before: REDFORD, P.J., and RIORDAN and FEENEY, JJ.

PER CURIAM.

In this action brought by plaintiffs to quiet title to an unimproved road, plaintiffs Lanny L.
Scoby, as trustee of the Lanny L. Scoby Trust, and Karen S. Scoby, as trustee of the Karen S.
Scoby Trust, appeal as of right the trial court’s order dismissing plaintiffs’ claims against defendant
Brian H. Mitchell. Although that was the trial court’s final order, plaintiffs’ issues on appeal

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concern the trial court’s earlier order granting summary disposition to defendant Barry County
Road Commission, which resulted in the dismissal of all the other defendants listed in the case
caption, except for Mitchell.

At issue in this case is whether the Road Commission abandoned a public road, Loftus
Road; whether the property on which the road was situated now belongs to plaintiffs and other
landowners whose property abutted Loftus Road; and whether Mitchell may improve Loftus Road
to access his property. Plaintiffs argue on appeal that the trial court erred by granting the Road
Commission’s motion for summary disposition pursuant to MCR 2.116(C)(7) (immunity granted
by law) because MCL 600.5821(2) and MCL 224.18 do not preclude plaintiffs’ claim for common-
law abandonment of a public road. Plaintiffs further argue that the trial court erred when it ruled
that the Road Commission did not abandon Loftus Road. We agree with plaintiffs and reverse the
trial court’s grant of summary disposition to the Road Commission.

I. FACTS

In 2002, Lanny and Karen Scoby bought property in Irving Township in Barry County
from seller Solomon Road, LLC. In March 2021, Mitchell bought a neighboring parcel of land
from Peter and Phillip Fields. Other defendants, including individuals and the State of Michigan,
own property in the same area of Loftus Road in Irving Township, including Scott R. Ranburger,
Julie A. Ranburger, Mi Doo, Sonjia Kang, Robert S. VanPutten, and Roger Ondersma.

On May 10, 2021, Mitchell’s counsel sent a letter to plaintiffs and defendants Mi Doo and
Sonjia Kang, stating that, on June, 2, 2021, Mitchell planned to make improvements to Loftus
Road, along the southern edge of their properties, to access his land from Solomon Road. In
response, plaintiffs’ counsel sent an e-mail to Mitchell’s counsel on May 19, 2021, stating that
there was no county road across plaintiffs’ property, Mitchell did not have the right to use any of
plaintiffs’ property for access to his parcel from Solomon Road, and that Mitchell had no easement
rights over plaintiffs’ property.

In response, Mitchell’s counsel sent an e-mail stating that Mitchell would not proceed with
any improvements and would try to find other, more favorable routes to the property, but he noted
that Loftus Road was accepted as a road and was not abandoned by the Road Commission. On
January 19, 2022, Mitchell’s counsel sent a letter to plaintiffs’ counsel stating that Mitchell
intended to “have the extension of Loftus Road surveyed.” Mitchell’s counsel further stated that
the chief engineer at the Road Commission stated that Loftus Road was not abandoned. Therefore,
Mitchell planned to obtain a driveway permit off Loftus Road so that he could access his property.
According to Mitchell’s counsel, the survey would determine whether the roadbed of Loftus Road
was on plaintiffs’ property. Mitchell’s counsel stated that, although “the road has been in dis-use
for awhile, the road bed clearly exists.”

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 The parties were unable to reach an agreement, and the instant litigation resulted.1 For the
purposes of this appeal, the issue before the trial court was whether a disputed portion of Loftus
Road was abandoned by the Road Commission under the common law. The Road Commission
moved for summary disposition under MCR 2.116(C)(7), arguing that MCL 600.5821 bars actions
against road commissions to quiet title to public rights of way if the claim is for adverse possession
or acquiescence, which includes plaintiffs’ claim of common-law abandonment in the instant case.
The Road Commission further argued that MCL 600.5821(2)(a) provides that statutes of
limitations do not apply to claims against road commissions, so a claim that lands may be
recovered after a period of 15 years cannot apply to the Road Commission. Moreover, according
to the Road Commission, MCL 224.18, among other related statutes, provides the only method for
a road commission to abandon a public road. And, the Road Commission noted, MCL 224.18 was
not satisfied here. Mitchell moved for summary disposition as well.

On September 7, 2022, the trial court held a hearing on defendants’ motions for summary
disposition, during which the parties reiterated the arguments set forth in their briefs. The Road
Commission argued that it had the sole authority to abandon a road and that it had not abandoned
Loftus Road. In addition, Mitchell argued that the trial court should grant summary disposition to
all defendants because plaintiffs failed to allege any facts to show an intent to abandon Loftus
Road. Plaintiffs responded that it was premature for the trial court to grant summary disposition
to any defendant because discovery was incomplete. Thus, plaintiffs could not present all facts
related to their claims. Plaintiffs further asserted that abandonment of Loftus Road occurred before
1980, so property rights vested before MCL 224.18 and MCL 600.5821 were enacted.

The trial court acknowledged that this area of the law is “fluid,” but ultimately, it granted
the Road Commission’s motion for summary disposition. The trial court ruled that, despite their
assertion that Loftus Road was abandoned, plaintiffs failed to allege any facts that would show
that the Road Commission intended to abandon the road. The trial court agreed with the Road
Commission that MCL 224.18 controls how a road commission may abandon a road and that the
statute was not satisfied here. Further, the trial court ruled that any abandoned land became the
property of the township and that plaintiffs could not claim ownership of it by claiming the Loftus
Road property as their own.

On September 28, 2022, the trial court entered an order dismissing plaintiffs’ claims except
for those against Mitchell. Thereafter, the trial court dismissed plaintiffs’ remaining claims against
Mitchell as well.

Plaintiffs now appeal.

II. STANDARD OF REVIEW

This Court reviews motions for summary disposition pursuant to MCR 2.116(C)(7)
de novo. Russell v Detroit, 321 Mich App 628, 631; 909 NW2d 507 (2017). “A defendant is

1
On the same day as the survey and without notice to plaintiffs, Mitchell cleared a path with his
“Bobcat” along the survey line. This prompted plaintiffs to seek a preliminary injunction against
Mitchell.

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entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff’s claims are barred because
of immunity granted by law.” Milot v Dep’t of Transp, 318 Mich App 272, 275; 897 NW2d 248
(2016). “If reasonable minds could not differ on the legal effects of the facts, it is a question of
law whether governmental immunity bars a plaintiff’s claim.” Id. at 275-276. This Court reviews
questions of law, including questions of statutory interpretation, de novo. See id. at 276.

III. MCL 600.5821

Plaintiffs argue that the trial court erred by ruling that their claim of common-law
abandonment of Loftus Road was barred by MCL 600.5821. We agree.

MCL 600.5821 provides, in relevant part:

(1) An action for the recovery of any land to which this state is a party is
not subject to the periods of limitations, or laches. However, a person who could
have asserted claim to title by adverse possession for more than 15 years is entitled
to seek any other equitable relief in an action to determine title to the land.

(2) In an action involving the recovery or the possession of land, including
a public highway, street, alley, easement, or other public ground, a municipal
corporation, political subdivision of this state, or county road commission is not
subject to any of the following:

(a) The periods of limitations under this act.

(b) Laches.

(c) A claim for adverse possession, acquiescence for the statutory period, or
a prescriptive easement.

According to the Road Commission, although plaintiffs’ complaint alleges a claim of
common-law abandonment, it is actually a claim for adverse possession because plaintiffs asserted
in their complaint that Loftus Road was abandoned for at least 15 years, which is the length of the
statutory period of limitations that applies to adverse possession. See Houston v Mint Group, LLC,
335 Mich App 545, 558-559; 968 NW2d 9 (2021). The Road Commission argues that plaintiffs’
claim for adverse possession was barred by MCL 600.5821(2)(c), which specifically prohibits that
cause of action from being maintained against the Road Commission.

In Wolf v Kalkaska Co Rd Comm, unpublished per curiam opinion of the Court of Appeals,
issued August 25, 2022 (Docket No. 355746), a panel of this Court ruled that MCL 600.5821 does
not abrogate claims of common-law abandonment.2 The plaintiffs in Wolf bought property in
Oliver Township in Kalkaska County. Id. at 2. A public road ran through the property, but the

2
“Unpublished opinions are . . . not binding authority but may be persuasive or instructive.”
Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858 (2020).

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road commission had not maintained the road since it was decertified in 1970, and a prior owner
had installed a fence and gate across it. Id. After a dispute arose over ownership of the road, the
plaintiffs sued the road commission on a theory of abandonment to quiet title to the portion of the
road on the plaintiffs’ property. Id.

Similar to this case, the defendant road commission in Wolf argued that it was immune
from the plaintiffs’ claim under MCL 600.5821 because the statute prohibits claims against road
commissions for common-law abandonment and that, further, MCL 224.18 sets forth the exclusive
means by which a road may be abandoned. Id. As plaintiffs argue here, the plaintiffs in Wolf
argued that MCL 600.5821 and MCL 224.18 did not abrogate common-law claims of
abandonment. Id. The trial court ruled in favor of the plaintiffs on the ground that neither statute
indicates that the Legislature intended to abrogate the doctrine of common-law abandonment
because MCL 600.5821(2)(c) did not mention abandonment as a prohibited claim, and pursuant to
Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637; 662 NW2d 424 (2003), MCL 224.18 is not
the only method by which a road commission may abandon a road within its jurisdiction. Wolf,
unpub op at 2-3.

In deciding whether common-law abandonment remained a viable cause of action
following the enactment of the statutes, the panel in Wolf observed that the common-law doctrine
of abandonment of a highway was well established in our jurisprudence. Wolf, unpub op at 3,
citing Gardens of Rest v Upper Mich Power & Light Co, 322 Mich 153, 156; 33 NW2d 741 (1948);
Meyer v Meldrum, 237 Mich 318, 322; 211 NW 658 (1927); Ambs, 255 Mich App at 652. The
panel also quoted the following from our Supreme Court’s opinion in Murphy v Inman, 509 Mich
132, 153; 983 NW2d 354 (2022):

The common law remains in force until changed, amended or repealed. The
Legislature may alter or abrogate the common law through its legislative authority.
Yet the mere existence of a statute does not necessarily mean that the Legislature
has exercised this authority. We presume that the Legislature knows of the
existence of the common law when it acts. Therefore, we have stated that we will
not lightly presume that the Legislature has abrogated the common law and that the
Legislature should speak in no uncertain terms when it exercises its authority to
modify the common law. As with other issues of statutory interpretation, the
overriding question is whether the Legislature intended to abrogate the common
law. [Wolf, unpub op at 3-4 (cleaned up).]

In considering whether the Legislature intended to abrogate common-law abandonment by
enacting MCL 600.5821(2)(c), the panel in Wolf observed that the Legislature failed to list
abandonment as one of the claims that may not be brought against a road commission. Id. at 3.
As the panel explained:

[T]he clear and unambiguous language of MCL 600.5821(2)(c) lists only claims
for “adverse possession, acquiescence for the statutory period, or a prescriptive
easement,” not common-law abandonment. This plainly suggests that the
Legislature did not intend to include claims for common-law abandonment in the
list of claims barred by MCL 600.5821(2)(c). See Dawley v Hall, 501 Mich 166,

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 170; 905 NW2d 863 (2018) (applying the maxim expressio unius est exclusio
alterius—the expression of one thing is the exclusion of another). [Id. at 4.]

The panel further reasoned that, if the Legislature intended to abolish the common-law
claim of abandonment, it would have made that clear. Id. Instead, by specifically barring claims
like adverse possession, prescriptive easement, and acquiescence for the statutory period, but not
listing common-law abandonment among those prohibited claims, “it cannot be said that the
Legislature clearly intended to abrogate that common-law doctrine.” Id. The panel added that,
because common-law abandonment has been recognized by our courts for many years, and also in
recent cases such as Ambs, the Legislature would have been aware of the doctrine of abandonment
when, in 2016, it amended MCL 600.5821(2)(c) to list specific claims that were barred. Id. For
those reasons, the panel ruled that the Legislature’s decision not to include common-law
abandonment as a claim barred by MCL 600.5821(2)(c) was knowing and intentional. Id. at 4-5.

The road commission in Wolf contended that, by prohibiting claims including acquiescence
and adverse possession in MCL 600.5821(2)(c), the Legislature intended to bar claims with similar
facts. Id. at 5. The panel rejected that reasoning because the Legislature specifically barred certain
claims, not facts supporting a party’s claim. Id. As the panel explained, “[i]f the Legislature’s
intent was to preclude potential plaintiffs from relying on certain facts, it could have easily written
the statute in a way to effectuate that intent.” Id. For that reason, even if facts that would support
a claim of adverse possession might also support a claim of common-law abandonment, this would
“not intertwine the theories such that a bar of one theory is necessarily a bar of the other . . . .” Id.

The road commission in Wolf also raised the same alternative argument that the Road
Commission advances in this case—that common-law abandonment is barred by MCL
600.5821(2)(a) because subsection (2)(a) provides that road commissions are not subject to statutes
of limitations, and the passage of time is part of any claim of abandonment. Id. at 5-6. The panel
rejected this argument as a misreading of subsection (2)(a). Id. at 6. In analyzing the issue, the
panel contrasted the language in subsections (1) and (2) of MCL 600.5821. Id. As set forth earlier,
subsection (1) provides that, when the state is a party, actions to recover land are not subject to
periods of limitations or laches, whereas subsection (2) provides that road commissions are not
subject to periods of limitations. Id. We have interpreted MCL 600.5821(1) to mean that the state
is immune from actions to quiet title because periods of limitations cannot run against the state.
Id., citing Gorte v Dep’t of Transp, 202 Mich App 161, 167; 507 NW2d 797 (1993). However,
the reference to statutes of limitations in subsection (2) does not apply to “actions” to quiet title to
land, but to the governmental entity itself when it pursues such actions. Wolf, unpub op at 6-7.
Accordingly, when a road commission is the plaintiff in a proceeding, its claim cannot be barred
by periods of limitations. Id. at 6. The panel further reasoned that, when the Legislature amended
the statute in 2016, it could have used the same language in both subsections (1) and (2) if it wanted
both the state and inferior governmental entities to be immune from quiet title actions, but it failed
to do so. Id. at 7.

Moreover, as the panel in Wolf reasoned that, if the Legislature intended that quiet-title
claims against a governmental entity can never lie if the claim involves the passage of a statutory
period, then the Legislature’s specific ban on claims of adverse possession and acquiescence in
subsection (2)(c) would have been mere surplusage because subsection (2)(a) would automatically
bar both of these claims for requiring a specific passage of a term of 15 years. Id. at 7-8. As the

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panel observed, courts should not read statutes in a manner that renders words as surplusage or
nugatory. Id.

Applying Wolf’s reasoning here, MCL 600.5821(2)(a) does not apply as a bar to plaintiffs’
claims because this is not an action by the Road Commission to recover possession of Loftus Road
from plaintiffs. Had the Road Commission sued to reclaim Loftus Road, plaintiffs could not
defend it as their property on the basis of the expiration of a period of limitations because, pursuant
to subsection (2)(a), the Road Commission is not subject to such periods of limitations. Further,
plaintiffs are not prohibited by subsection (2)(c) from maintaining their claim that the Road
Commission abandoned Loftus Road because common-law abandonment is not listed as one of
the claims abrogated by the statute.

The Road Commission and Mitchell argue that this Court should not apply the reasoning
in Wolf because that opinion is unpublished and because it was wrongly decided. According to
the Road Commission, the panel in Wolf should have recognized that the plaintiffs’ claim was for
adverse possession, not common-law abandonment. However, the panel’s reasoning in Wolf,
unpub op at 8, is instructive that, although facts that support one cause of action may also support
another, MCL 600.5821(2) does not prohibit facts, it prohibits adverse possession as a cause of
action against the Road Commission. A plaintiff’s claim of common-law abandonment does not
fail merely because the claim depends on facts that also may prove an element of the claim of
adverse possession. If plaintiffs ultimately cannot prove the elements of common-law
abandonment, the claim will fail, but not merely because some facts overlap with another cause of
action.3

To summarize, although unpublished, the reasoning in Wolf is instructive and supports a
conclusion in the matter before us, that the plain language of MCL 600.5821 does not bar claims
of common-law abandonment. Accordingly, to the extent that the trial court ruled otherwise, the
trial court’s ruling is reversed.

IV. MCL 224.18

Plaintiffs argue that the trial court erred by ruling that the only method by which a road
commission may abandon a public right-of-way is pursuant to MCL 224.18. We agree.

MCL 224.18 provides, in relevant part, as follows:

3
The Road Commission further argues that, in Wolf, the panel incorrectly ruled that the plaintiffs
could show encroachments on the disputed road as evidence to support a claim of abandonment.
The panel addressed that argument in Wolf, unpub op at 8 n 7, when it observed that, although
MCL 247.190 states that encroachments on a property do not confer title to that property, evidence
of encroachments may nonetheless constitute evidence in support of a claim of abandonment. In
this case, as in Wolf, plaintiffs do not assert that, because someone placed drainage culverts on
Loftus Road to benefit plaintiffs’ property, that this confers title to the property on plaintiffs.
However, that such encroachments to the property were imposed may nonetheless be evidence to
support a claim of abandonment.

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 (3) The board of county road commissioners of any county that has adopted
the county road system, at any time, may either relinquish jurisdiction of or
absolutely abandon and discontinue any county road, or any part of a county road,
by a resolution adopted by a majority vote. The vote of the county road
commissioners in respect to either relinquishment of jurisdiction or absolute
abandonment and discontinuance shall be taken and entered, and notice given, in
the same manner as required in this section in cases in which county roads are
adopted. After proceedings to relinquish jurisdiction have been had, the jurisdiction
and control of the road, or part of the road, except as otherwise provided in this
section, shall revert to the municipality within which the road is situated, and the
county shall be relieved of the responsibility for the road. After proceedings to
abandon absolutely and discontinue, the road or part of the road shall cease to exist
as a public highway unless the unit of government that acquires the property or
control of the property permits use as a public highway. Subject to subsection (8),
the board, at the time of the passage of a resolution to abandon absolutely and
discontinue any portion of a highway under its jurisdiction, shall determine in the
resolution that it is in the best interests of the public that the highway or portion of
the highway be absolutely abandoned and discontinued. The board shall cause a
true copy of every resolution or other proceeding containing an accurate description
of the lands comprising the highway or portion of the highway that has been
absolutely abandoned and discontinued to be recorded in the office of the register
of deeds for the county where the lands are situated.

(4) The board of county road commissioners shall not absolutely abandon
and discontinue any highway, or part of a highway, except as provided in this
section, upon the written petition of 7 or more freeholders of the township in which
the road is sought to be absolutely abandoned and discontinued. The petition for
absolutely abandoning and discontinuing a highway shall describe the road in
general terms or by any name by which it is known, and if the absolute
abandonment and discontinuance of only a portion of a road is asked for, that
portion shall be specified. The petition shall be accompanied by a true and correct
list of the names and mailing addresses of the occupants of each parcel of land
abutting the highway, or portion of the highway, sought to be absolutely abandoned
and discontinued, which list shall be certified to under oath by 1 of the persons
making or presenting the petition.

This Court considered whether MCL 224.18 abrogated common-law claims of
abandonment in Ambs, 255 Mich App at 637. In Ambs, the construction of I-94 split a public road,
Cooks Drive, in Comstock Township. Id. at 639. When construction of the expressway finished
in 1951, the Kalamazoo County Road Commission adopted a resolution to abandon the northern
part of Cooks Drive pursuant to MCL 224.18, but it failed to officially abandon the southern
portion of the road. Id. However, the road commission did not certify any part of Cooks Drive to
receive state maintenance funds, and the road commission did not maintain any part of Cooks
Drive after the expressway divided it. Id. In the years after Cooks Drive was split, nearby property
owners built houses on lots abutting the road with the understanding that the road would not be
maintained. Id. However, two other property owners were later denied variances to build homes

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on a portion of Cooks Drive because of a township ordinance that prohibited the construction of
homes on roads that were not publicly maintained. Id. at 639-640. Landowners sought to have
Cooks Drive recertified as a public road, but the road commission told the landowners that they
would need to share in the cost of making improvements to the road before it would recertify the
road. Id. at 640. The landowners sued the road commission and its board and asked the trial court
to declare that Cooks Drive was a public road and order the defendants to recertify it. Id.

The plaintiffs moved to prevent the road commission from asserting a defense of common-
law abandonment by nonuse because, they argued, MCL 224.18 provides the only manner by
which a public right-of-way may be abandoned. Id. at 640-641. The plaintiffs argued that the
common-law doctrine of abandonment may be available to landowners, but that a road commission
could not rely on this theory since the Legislature enacted and amended MCL 224.18 to provide
more protections to landowners, not governmental entities. Id. at 641. The trial court disagreed
and ruled that common-law abandonment was not exclusively a theory for private landowners
because nothing in MCL 224.18 stated that the Legislature intended to abrogate all other methods
by which a road commission may abandon a public road. Id. at 642. The case proceeded to trial,
and the trial court ruled that the road commission abandoned the road by failing to maintain it after
the 1951 construction of I-94. Id. at 642-643.

On appeal, this Court considered the version of MCL 224.18 that existed in the 1950s when
the road commission stopped maintaining Cooks Drive. Id. at 644-645. At that time, the statute
provided, in part, that “[t]he board of county road commissioners of any county which has adopted
the county road system is hereby authorized and empowered to, at any time, either relinquish
jurisdiction of or absolutely abandon and discontinue any county road, or any part thereof, by a
resolution adopted by majority vote.” Id. at 644. This Court disagreed that this language required
the road commission to follow the procedures in MCL 224.18, reasoning as follows:

Plaintiffs’ assertion that adherence to the statutory procedures set forth
above was required for a valid abandonment of a county road reads too much into
the plain language of the statute. Although the statute “authorized” and
“empowered” a board of county road commissioners to absolutely abandon any
county road by resolution adopted by majority vote, nothing in the plain language
of the text required such a vote, and it is only upon such vote and resolution that
the remaining procedures, i.e., notice, recording, and a determination that
abandonment is in the best interests of the public, were required. [Ambs, 255 Mich
App at 645.]

In so holding, this Court distinguished cases in which our Supreme Court held that the
procedures in MCL 224.18 were mandatory by observing that the statutory procedures only apply
once a road commission decides by resolution to abandon a road under the statute. Id. at 645-646.

Further, when considering whether the Legislature intended to dispense with the common-
law doctrine of abandonment on the basis of its decision to provide greater safeguards to private
property owners in amendments to MCL 224.18, this Court reasoned as follows:

Plaintiffs assert that the additional protections afforded to private interests by these
amendments make clear a legislative intent to abrogate the out-dated theory of

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 common-law abandonment. However, as discussed above, legislative intent must
be gleaned from the specific language employed in the statute. Moreover, it is well
established that statutes in derogation of the common law must be strictly
construed, and will not be extended by implication to abrogate established rules of
common law. As noted above, under the plain language of the statute at issue here,
the additional protections afforded through amendment by the Legislature come
into play only when a resolution to abandon is adopted by the board, which itself is
not required. Accordingly, to read the amendments as evidence of a legislative
intent to require adherence to the statute itself would be neither reasonable nor
logical. [Ambs, 255 Mich App at 649 (quotation marks and citations omitted).]

This Court recently discussed the application of MCL 224.18 to common-law claims of
abandonment in Wolf, unpub op at 9-12. As previously discussed, in Wolf, the panel ruled that
MCL 600.5821(2) does not bar claims of common-law abandonment. Id. at 6-8. As in this case,
the trial court in Wolf agreed with the road commission that it could not have abandoned the road
that ran through the plaintiffs’ property because MCL 224.18 provides the only manner by which
a road commission may abandon a public right-of-way. Id. at 9.

In considering the issue, the panel in Wolf, unpub op at 10, cited Ambs, 255 Mich App
at 643, in which, as noted, this Court considered a version of MCL 224.18 before its amendments
in 1996 and 2000, and ruled that, although MCL 224.18 authorized a road commission to abandon
a public right-of-way through a resolution by majority vote, no language in the statute required a
road commission to vote to abandon a public road. In Wolf, unpub op at 10, the panel ruled that
the relevant language in MCL 224.18(3) on which this Court relied in Ambs did not change, and,
therefore, pursuant to Ambs, a road commission may abandon a road by methods other than the
manner outlined in MCL 224.18(3).

As in this case, the road commission in Wolf also cited subsection (4) of the statute to
support its claim that a road commission cannot abandon a road by any means other than in
MCL 224.18. Id. As set forth earlier, the statute provides that, “[t]he board of county road
commissioners shall not absolutely abandon and discontinue any highway, or part of a highway,
except as provided in this section, upon the written petition of 7 or more freeholders of the
township in which the road is sought to be absolutely abandoned and discontinued.”
MCL 224.18(4). The panel in Wolf did not interpret this sentence to mean that a road commission
may only abandon a highway if at least seven landowners submit a petition making that request.
Wolf, unpub op at 11. Instead, the panel ruled as follows:

A better interpretation of this sentence is that the board of county road
commissioners can only abandon a highway or part of a highway as provided in
MCL 224.18 upon the written petition of 7 or more freeholders of the township.
This interpretation gives effect to the entire sentence rather than selectively
applying the first part of the sentence and ignoring the second. [Id.]

Further, although the road commission’s interpretation of MCL 224.18(4) also was
reasonable, the panel chose to adopt the interpretation that did not modify the common law
because, to do so, the Legislature must express that intention “in no uncertain terms.” Id.
(quotation marks and citation omitted).

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 The panel in Wolf, unpub op at 11, additionally addressed an argument similar to that raised
by the Road Commission in this case—that, in Huron Mountain Club v Marquette Co Rd Comm,
303 Mich App 312, 324; 845 NW2d 523 (2013), this Court stated that MCL 224.18(4)
unambiguously provides that a road commission may abandon a highway only when a petition is
submitted as described. The panel in Wolf stated:

When read in isolation, this sentence would seem to support defendant’s position.
Yet a simple reading of Huron Mountain Club makes clear that it never addressed
the issue raised by defendant here. Huron Mountain Club concerned whether an
abandonment petition initiated pursuant to MCL 224.18(4) needed to be signed by
seven or more freeholders; this Court held that it did, and that the plaintiff’s petition
which failed to meet this requirement was “fatally defective.” Huron Mountain
Club, 303 Mich App at 328. The sentence of Huron Mountain Club that defendant
relies on remains true in the context of abandonment petitions initiated pursuant to
MCL 224.18(4), but offers no guidance on whether MCL 224.18 provides the
exclusive means by which a county road commission can abandon a public
highway, which is the question at issue in this case. [Wolf, unpub op at 11.]

Because nothing in MCL 224.18 indicates that the Legislature intended to abolish the
common-law doctrine of abandonment, the panel in Wolf declined to read subsection (4) in a
manner that would accomplish that end. Id. at 11-12.

Again, we find the reasoning in Wolf persuasive. The holding in Wolf that MCL 224.18(3)
does not preclude claims of common-law abandonment has the added support of this Court’s
published decision in Ambs, and the holding in Wolf that MCL 224.18(4) also does not clearly
indicate a legislative intent to abrogate common law is equally persuasive. Thus, we agree with
the panel’s holding that, if the Legislature intended to abrogate the common-law cause of action
for abandonment, it would have done so with clarity. Moreover, this Court should not interpret
the statute to do so when such legislative intent is lacking.

For these reasons, the trial court erred when it granted summary disposition to the Road
Commission on this ground.4

V. ABANDONMENT

As discussed, the trial court granted summary disposition to the Road Commission on
plaintiffs’ claim of common-law abandonment of Loftus Road because the trial court ruled that
plaintiffs’ claims were barred as a matter of law pursuant to MCL 600.5821 and MCL 224.18.
Specifically, the trial court ruled that the Road Commission “is not subject to” plaintiffs’ claim of
common-law abandonment. However, at the summary disposition hearing, the trial court further

4
The Road Commission argues that MCL 600.5821 and MCL 224.18, when read together, indicate
that the Legislature has “occupied the field” as to the abandonment of public roads. See Trentadue
v Buckler Lawn Sprinkler, 479 Mich 378, 390; 738 NW2d 664 (2007). We disagree. As explained,
MCL 224.18 essentially provides for an additional method of abandonment, and MCL 600.5821
does not concern abandonment as it relates to road commissions as defendants.

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opined: “That they have not abandoned this road. That there has been no showing in the pleadings
of an intent to relinquish the property [by] an external act, putting that intention into effect. Non-
use alone is insufficient.” In the written order granting summary disposition to the Road
Commission, the trial court stated that “[p]laintiffs’ claim for common-law abandonment is
dismissed with prejudice and without costs to any party for the reasons stated on the record.”

Although the trial court’s comment is not entirely clear, in our opinion, the trial court
should not have reached the question whether plaintiffs could show common-law abandonment
because it ruled that plaintiffs were barred from making that claim pursuant to the statutes
previously discussed. The Road Commission did not move for summary disposition under any
other court rule such as MCR 2.116(C)(8) (failure to state a claim on which relief can be granted)
or MCR 2.116(C)(10) (no genuine issue of material fact). Accordingly, as to the Road
Commission, the only issue before the trial court was whether plaintiffs’ claims were barred as a
matter of law.

Nonetheless, we acknowledged that the trial court correctly stated that there must be some
showing of an intent to abandon to establish a claim for common-law abandonment. As this Court
explained in Ambs, 255 Mich App at 652:

A roadway established for public use may cease to be such by voluntary
abandonment and nonuse. To prove such abandonment, both an intent to relinquish
the property and external acts putting that intention into effect must be shown by
the party asserting abandonment. [Citations omitted.]

As plaintiffs argue, the trial court appears to have concluded that plaintiffs failed to plead
facts that would be sufficient to show the Road Commission’s intent to abandon Loftus Road.
However, we conclude that plaintiffs should be permitted to address the merits of their claim
following at least some time for discovery. As plaintiffs argued, a decision on the merits was
premature when counsel had yet to take a single deposition and when he had recently learned
through a Freedom of Information Act, MCL 15.231 et seq., request that the Road Commission
denied having any documents related to Loftus Road. See Mackey v Dep’t of Corrections, 205
Mich App 330, 333; 517 NW2d 303 (1994).

In their second amended complaint, plaintiffs alleged that Loftus Road currently either
exists only on paper or was abandoned; plaintiffs and their predecessors in interest have paid
property taxes on the entire parcel, including the roadbed; plaintiffs have exclusively used and
occupied the area of Loftus Road for at least 15 years; the portion of Loftus Road at issue has not
been maintained or improved; the public has not used the disputed portion of the road for many
years; and the Road Commission had abandoned the road under the common-law definition in
Villadsen v Mason Co Rd Comm, 268 Mich App 287, 304-305; 706 NW2d 897 (2005).

We agree that plaintiffs’ complaint does not offer much detail with regard to what conduct
by the Road Commission might evidence its intent to abandon the road. However, plaintiffs should
be permitted to complete discovery because there appears to be at least some factual dispute about
the Road Commission’s history with regard to Loftus Road. For example, plaintiffs presented
evidence that Mitchell signed an acknowledgment that Loftus Road was a private road when he

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bought his lot in 2021, raising the question whether the Road Commission declared Loftus Road
to be a private road at some point. Plaintiffs’ counsel also stated at the preliminary injunction
hearing that, since 1938, no county map has shown Loftus Road west of Solomon Road as a public
road until it appeared as a private easement on a map in 2003. Given the nonuse of Loftus Road
for 50 years, prior owners of Mitchell’s property had to use another access point, which now
appears to be unsuitable to Mitchell.

Other references in the record indicate that the Road Commission has declined to accept
state funds for maintenance of Loftus Road; that the road is impassible because of the construction
of drainage culverts in the roadbed and an overgrowth of trees and vegetation; and that Jacob
Welch, the Assistant Managing Director of the Road Commission, reported to police officers that
the road was decertified. The Road Commission claims that reference to evidence like plaintiffs’
assertion that maps did not show Loftus Road for more than 60 years amounts to an impermissible
attempt to expand the record on appeal.5 However, the Road Commission’s motion for summary
disposition did not call for evidence on the merits of plaintiffs’ claim of abandonment, but the
viability of that claim in light of MCL 600.5821 and MCL 224.18. The factual assertions merely
show the extent to which further discovery is necessary to properly decide the issue of common-
law abandonment.

Plaintiffs’ counsel also argued at the summary disposition hearing that a ruling on the facts
was premature because he had not yet deposed anyone and the Road Commission claimed to have
no documents regarding the history of Loftus Road. Generally, summary disposition is premature
if granted before discovery is complete on a disputed issue. Bodnar v St John Providence, Inc,
327 Mich App 203, 231; 933 NW2d 363 (2019). Accordingly, we hold that the trial court erred
by dismissing abandonment as a substantive claim before discovery was complete.

VI. CONCLUSION

We conclude that the trial court erred by ruling that plaintiffs’ claim for common-law
abandonment was precluded by MCL 600.5821 and MCL 224.18. Further, under the facts of this
case, we also conclude that the trial court erred by indicating that plaintiffs’ claim was not factually
supported, as doing so was premature. Therefore, we reverse and remand to the trial court for
further proceedings consistent with our opinion. We do not retain jurisdiction.

/s/ James Robert Redford
/s/ Michael J. Riordan
/s/ Kathleen A. Feeney

5
Plaintiffs’ counsel discussed the various maps at the preliminary injunction hearing and provided
the trial court with a packet of maps and other recorded documents to clarify the dispute but did
not submit them as evidence to challenge the Road Commission’s claim that plaintiffs’ claims are
barred by statute.

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