Daily Development for
Monday, September 18, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
EASEMENTS; CREATION;
DEDICATION; ACCEPTANCE: Dedication of a roadway to the public on a subdivision
plat constitutes a "continuing offer" of dedication for as long as 37
years, and public entities acceptance 37 years later is therefore deemed a
"timely" acceptance within meaning of common law requirement.
Christiansen v. Gerrish
Township, 608 N.W.2d 83 (Mich. App. 2000)
Landowners sought to
vacate undeveloped portion of road next to their property. They argued that
although the entire length of the road was set forth in a 1903 plat and thereby
offered to be dedicated for public use, no public entity had ever validly
accepted the offer of dedication either formally (by resolution or ordinance)
or informally (through public improvements or use) with respect to the
undeveloped portion of the road. The only proffered evidence of acceptance was
a 1940 County resolution, and landowners argued that this resolution, even if
it could be valid as an acceptance was not timely, coming 37 years after the recording
of the plat.
The Court of Appeals
stated the general rule regarding the valid dedication of land for a public
purpose had two elements: (1) a recorded plat clearly offering the land for
public use and (2) a subsequent acceptance of the offer by a public authority. The
Court also cited relevant case law as requiring that acceptance must be timely,
and it must be accomplished by a public act either formally confirming or
accepting the dedication, and ordering the opening of such street, or by
exercising authority over it, in some of the ordinary ways of improvement or regulation.
In addressing landowners'
argument that the length of time between the offer and the resolution caused
the offer to lapse, the Court of Appeals noted that as long as the original
plat proprietor or any successor in interest took no steps to withdraw the
offer to dedicate, i.e. by using the property in a way that is inconsistent
with public ownership, the offer is continuing. The Court of Appeals further
noted that even if an offer is continuing, an acceptance may nevertheless be
deemed untimely if a large number of years pass between the offer and the
acceptance. However, the Court held that the span of thirtyseven years between
the subject offer and the acceptance was more in line with case law holding a twentysix
year span not unreasonable, than with case law holding an eightysix year span
unreasonable.
Comment 1: This summary
omits discussion of several important Michigan issues concerning dedication,
including the narrowing or overruling of several precedents. Consequently,
Michigan lawyers should read the original carefully.
Comment 2: Can it be said
that there be a real requirement of timeliness when the court is willing to
deem a 37 year late acceptance as "timely?" Note that, as an
alternative holding, the court held that the 59 year delay by the landowners'
in challenging the adequacy of the 1940 acceptance constituted a waiver of the
objection based upon timeliness in any event.
Comment 3: The principle
in this case was stated in Kraus v. Gerrish TP., 517 N.W.2d 756 (Mich. App.
1994), discussed in a DIRT DD in Dirt's first year of operation, 8/18/95. DIRT
ran another DD dealing with dedication issues on 11/15//96; 6/4/97; 12/4/97;
and 2/15/200 (second case). All these DD's can be found in the DD collection on
the DIRT website: GOTOBUTTON BM_1_ http://www.umkc.edu/dirt/
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