by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
EASEMENTS; CREATION; DEDICATION: Once a road easement by dedication has been tendered, the public agency may accept it whenever public necessity demands, unless the dedicator withdraws the offer of dedication by specific statements or by use of the land that is wholly inconsistent with the later creation of a public way. Kraus v. Gerrish TP., 517 N.W.2d 756 (Mich. App. 1994). The court analyzed dedications in the face of four consolidated appeals brought by private real property owners who sought to secure the vacation of various platted but unimproved paper streets abutting their respective properties. For the most part, these undeveloped "streets" had been occupied exclusively by neighboring property owners for around ninety years. Owners argued that prior precedent had established that where a dedication has no specific termination, it must lapse if not accepted prior to the time of the running of the adverse possession period.
The court acknowledged the existence of a rule that a dedication offer normally will automatically lapse if not accepted within the period sufficient to bar all actions for recovery of land (it does not say that this is the adverse possession period, but this is apparently what it means).. It cautioned, however, that automatic lapse will only take place, if there are no facts from which a continuous offer can be inferred. It goes on to conclude that the nature of rights of way is such that it normally is approriate to assume that the dedication offer is intended to remain open until such time as public necessity dictates acceptance and improvement of the roadway.
An inference that the dedication offer has been withdrawn can arise from actions of the dedicator (or dedicators' successors) that are hostile to the proposed public use. But the court here rules that some rather unequivocal acts, such as the building of a fence, are not necessarily inconsistent with the later establishment of a public way on the property in question. Implied withdrawal of dedication, in other words, is different from adverse possession, since the continued exclusive possession of the dedicator is assumed appropriate until the public authority accepts and develops the right of way.
Having determined that the offer of dedication remained open indefinitely, the court went on to establish a rather generous interpretation as to when the proferred dedication is accepted. An acceptance of a dedication does not require the immediate opening of each platted street. Acceptance may arise formally or informally through a number of property related activities. The court further stated that in deciding whether a completed dedication was in existence it may also look to the record for evidence of an act or acts undertaken by a public body that manifests a voluntary assumption of jurisdiction over the dedicated way with the intent to retain the way for the proposed public use. In analyzing the dedications at issue the court analogized the offer and acceptance principles to those of the law of contracts.
The trial court had found acceptance in the public authority's acceptance of a plat showing the dedicated streets. The court does not necessarily overrule this holding as much as it ignores it. The court, instead focusses on an alternative holding by the trial court that the public authority accepted the dedication of all streets offered for dedication in 1937, when the county adopted a resolution stating that it "took over for purposes of maintenance "all dedicated streets and alleys in recorded plats within Roscommon County," outside of the Village of Roscommon (the only incorporated city in the county at that time) - a total of 170,000+ miles.
Comment One: One wonders whether the court would have relied upon such broad language if acceptance of dedication had not operated to the benefit of the County.
Comment Two: Many states have statutes that limit the time period during which a dedication must be accepted, so the problem of this case is not so severe. But lawyers still must be wary of those "time bombs" hidden on platted land. Developers change their minds and development schemes fail, and often the paper record shows schemes laid upon schemes laid upon schemes, with nothing to show on the land itself. If one can "undo" the dedication because there has been no acceptance, this is obviously the best approach. But it is difficult to establish an "implied withdrawal." One can demonstrate unequivocal acts of possession inconsistent with dedication; but, as the court notes, many possessory acts are not inconsistent with a subsequent conversion of the property to roadway, and therefore do not constitute withdrawal of the dedication.
Where acceptance of the recordation of the plat is acceptance of the dedication, as the trial judge ruled here, you have "instant" dedicated roads.
Once a right of way is dedicated, adverse possession usually will not work to cure the problem, since it is difficult to adversely possess public land dedicated or intended to be dedicated to a public use. . In most states, once dedication and acceptance have occurred, adverse possession won't work against public property dedicated for public use.
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