USING PUBLIC MONEY FOR PRIVATE BENEFIT: No, And Heck No!
The Lead-In
- The Village does not “own” trees in the rights-of-way. It doesn’t own mailboxes, stone walls, fences, owner-installed sidewalks up to homes, gnomes, irises, or decorations that are in the rights-of-way.
- The Village could “make” property owners remove trees that encroach into the rights-of-way.
- The Village has governmental immunity for economic and noneconomic damages caused by trees in the rights-of-way.
- Undertaking to remove trees in the rights-of-way will be a financial and legal disaster for the residents and property owners of the Village. We cannot permit elected officials to buy favor and votes with our tax money.
1. The Council has voted to use tax money to cut down trees in the rights-of-way of our roads in the Village. The Council wants to hire an arborer to tell it which ones to trim or cut down at taxpayer expense. The Council’s excuse for doing this is a “Legal Opinion Memorandum” in which the Village attorney, Craig A. Rolfe, Esq., opines that:
“Most of the Village of Climax has been platted, with the potential exception of some farmland acreage on the outskirts of the Village. When land is platted, the land intended for the streets, alleys, commons, parks or other public uses as designated on the plat are generally dedicated to the public, and are held in trust by the Village for such uses and purposes.”
Mr. Rolfe cites MCL Sec. 560.253 as the source of authority for this statement. That statute says in section (1) that:
“When a plat is certified, signed, acknowledged and recorded as prescribed in this act, every dedication, gift or grant to the public or any person, society or corporation marked or noted as such on the plat shall be deemed sufficient conveyance to vest the fee simple of all parcels of land so marked and noted, and shall be considered a general warranty against the donors, their heirs and assigns to the donees for their use for the purposes therein expressed and no other.”
What this is referring to when it is says “dedicated” are private gifts and grants of land to individuals, to the public, or to corporations when noted in a plat. This conveys fee simple or absolute title to the donees named. Martin v. Beldean, 468 Mich. 868, 661 N.W. 2d 231 (2004).
Mr. Rolfe goes on to say that:
“… all (or at least most of) the public streets and other public ways within the Village have been dedicated to the Village and are held in trust by the Village for the dedicated purposes.”
They were not! The plat has no indication that the roadways on the plat were marked or noted to be given to the Village in fee simple by operation of the territorial act of 1821 or its successors, including MCL 560.253. This is a distinction with a big difference. Dedications or gifts in plats to specific donees conveys fee simple title just as a deed conveys title. Rights-of-way do not convey fee simple title but a shared arrangement with the abutting property owner in which the right-of-way is merely a permitted use of the properties on either side of it. More on this below.
With regard to Main and Church Streets Mr. Rolfe says :
”… Main Street throughout the Village appears to have a total width of 100’, and Church Street also appears to have a total width of 100’.”
By virtue of these recitations, Mr. Rolfe concludes:
“… the Village is effectively the owner of the public streets for the entire width and length of the streets as laid-out on the pertinent plat.”
But, “effectively” does not exist in real estate titles. Title to real property in Michigan is owned by someone. See In re Estate of Matt Miller, 274 Mich. 190, 193; 264 NW 338 (1936); Smith v. Livingston County Drain Commission, Michigan Court of Appeals unpublished opinion No. 251523 (2005).
According to Mr. Rolfe’s analysis the Village is the fee simple owner of 50’ on each side of the centerline of the road. The property owners along Main Street and Church Street may not be too happy to hear this. This would mean that some of their front yards and the fronts of some of their houses are on Village property. So, all the things in those front yards such as address markers, stone walls, fences, flowers, landscaping, trees, decorations, and yard gnomes, as well as portions of homes that are in the rights-of-way, are encroachments. Encroachments are subject to an order of removal and must be removed at the expense of the property owners who thought that their front yards or houses were theirs to the sidewalks. MCL Sec. 247.171(1).
This is, of course, a ridiculous result to say the least!
2. What have we here?:
What is a plat? It is a map. It is a map of a town or subdivision showing details of lots, blocks, streets, and public easements or monuments. The plat process in Michigan is set out in The Land Division Act ( MCL 560.101 et seq.)
Mr. Rolfe is mistaken about the measurements in the plat of the Village. They are in chains and links, not feet. He said:
“… Main street throughout the Village appears to have a total width of 100’, and Church Street also appears to have a total width of 100’.”
Chains, rods, and links were used by surveyors as measurements of land in 1891 when the Village was platted. The “100” measurement of the road rights-of-way in the plat throughout the Village refers to 100 links which is 66 feet or 4 rods. Only major arterials and truck routes might have a 100’ right-of-way.
In addition, there is no private dedication, gift, or grant of the rights-of-way marked or noted on the plat which would cause MCL 560.253(1) or any of its predecessors to create a conveyance in fee simple title to those rights-of-way. The Village was probably platted under the 1887 Michigan plat act. The Village roads are the standard, ordinary, run-of-the-mill platted rights-of-way which are now defined in MCL Sec. 221.20. The Village does not own them.
3. What is a Right-Of-Way?:
The legal definition of a right-of-way is contained in MCL Sec. 221.20(20):
“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines.”
In the Village, Main Street is on a section line. But, under the statute above, the right-of-way is the same width. That is, 2 rods or 33 feet on each side of the section line.
A statutory right-of-way merely allows another individual to travel through private land. It grants access to anyone who may need to travel through that land. It’s broader than an easement as it allows “anyone” as opposed to “someone” to utilize the land for a stated purpose. But neither a right-of-way nor an easement conveys ownership to the right-of-way or easement holder. It has been described by the Michigan Supreme Court as a “base fee”. Patrick v Young Men’s Christian Ass’n of Kalamazoo, 120 Mich. 185, 191; 79 NW 208 (1899).
The governmental unit acquires no beneficial ownership of the land in the right-of-way. Bay Co v Bradley, 39 Mich. 163, 166 (1878). It does not receive title in the nature of a private ownership. Wayne Co v Miller, 31 Mich. 447, 448-449 (1875). The governmental unit does not receive “the usual rights of a proprietor” but takes title to the extent that it could “preclude questions which might arise respecting the public uses other than those of mere passage. Backus v Detroit, 49 Mich. 110, 115; 13 NW 380 (1882).
An owner of property abutting a right-of-way has a reversionary interest to the center of the street. 2000 Baum Family Trust v. Babel, 388 Mich. 136, 152 (2010). When a street is vacated, it reverts to the abutting owner or owners. MCL 560.227(a).
Simply put, the Village never acquired ownership of trees in the rights-of-way in the Village because the law says the Village doesn’t own the rights-of-way. And, the trees are encroachments into the rights-of-way subject to an order of removal by the Council under MCL 247.171 and Chapter 30, Section 30-54, of the Village of Climax Code Book of Ordinances. Yes, the Village may order the trees in the rights-of-way to be trimmed or removed at the expense of the abutting property owners.
4. Governmental Immunity:
The State of Michigan enjoys “sovereign immunity”. Local governments, municipalities, cities, counties, towns, and other political subdivisions of the state have “governmental immunity” by virtue of a grant or grants from the state. MCL Sections 691.1401 through 691.1413 (1986).
Governmental immunity has six exceptions in Michigan, only two of which are relevant here. They are MCL Sec. 691.1402, referred to as the “highway exception”, and 6911413.
MCL 691.1402 states in pertinent part:
“(1) Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.”
The term “highway” above is defined as follows:
“(c) Highway means a public highway, road, or street that is open for public travel. Highway includes a bridge, sidewalk, trailway, crosswalk, or culvert on the highway. Highway does not include an alley, tree, or utility pole.” Emphasis added.
This has been interpreted to mean the physical structure of the surface and roadbed itself.
In Haggerty v. Board of Manistee Co Comm’rs, 493 Mich. 933, 825 N.W. 2d 581(2013). In Haggerty a tree which was “alongside” the road was knocked down in a storm. A lower branch protruded into the roadway. A motorcyclist ran into it and was thrown from his bike, suffered serious head injuries, and died. The court ruled that governmental immunity prevented the motorcyclist’s estate from maintaining a wrongful death suit against the county.
In a prior decision, the Michigan Supreme Court in Nawrocki v. Macomb County Road Commission, 463 Mich. 143, 615 N.W.2d 702 (2000), said that the “highway exception” applies only to injuries that occur on an improved portion of the highway designed for vehicular travel. In that case, a pedestrian was seriously injured when she stepped off a curb onto cracked and broken pavement on the surface of the road and sustained serious injuries to her right ankle, necessitating several operations. The court held that the “highway exception” did apply and the pedestrian could maintain a suit for economic damages.
The duty of governmental entities to maintain the roadway surface specifically excludes sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. See, MCL 691.1402(1). A tree would be an “installation”. There is a specific exception to governmental immunity of municipalities with regard to the care and maintenance of sidewalks. If the roots of a tree in a right-of-way lift a sidewalk, this exception would come into play. The Village would then have to evaluate any effect on the sidewalk and decide whether to trim the roots or require the property owner to remove the tree.
The second exception to governmental immunity in Michigan is MCL Sec. 691.1413, which states in pertinent part:
“The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the governmental agency for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965.
What is and is not a proprietary function as opposed to a governmental function has hundreds of different answers around the country. But here, the Michigan legislature has narrowed the scope of the definition to an activity which is conducted primarily for the purpose of producing a pecuniary (money) profit for the governmental agency. There is no dispute that maintaining and removing rights-of-way trees is a losing proposition for the Village.
5. What does all this mean?:
It means that the assumption by the Village of the responsibility to trim or remove trees in the Village rights-of-way is an inappropriate use of tax money. Because the Council members, and Bill Lewis in particular, cannot say “no” to a few self-interested Village property owners, the taxpayers are going to be saddled with paying for something that is lawfully the responsibility of individual property owners. Already discussed has been what appeared to be the payment of tax money for legal services that served Bill Lewis personally. Now, he wants to pay to cut down trees in the rights-of-way despite the law which limits burdens that can be placed upon taxpayers by office-holders eager to ingratiate themselves with voters hoping that those voters don’t know they’re being exploited.
The Village Clerk has a copy of the opinion of the former attorneys for the Village which indicated that the Village does not own and is not responsible to maintain and remove trees in the rights-of-way. The Clerk also has a copy of the letter from the Village’s commercial insurance agent indicating that trimming and removal rights-of-way trees in the Village is the responsibility of the abutting property owners.
We’re not talking about the Village trimming branches of a tree or brush so that a stop sign is visible. We’re talking about taking over the responsibilities of private property owners and spending public money to do it.
In his Legal Opinion Memorandum, Mr. Rolfe says that if:
“… a tree has been determined (by an arborist, if appropriate) to be in danger of falling into the roadway or onto the adjoining house because of the condition of the tree, … removal (or possibly trimming?) of the tree by the Village would potentially reduce (or avoid) a property damage claim against the Village …”
Anyone can file “a claim” and people often do. But it doesn’t mean that they can pursue their claim or recover on it. As shown above, governmental immunity would apply to protect the Village.
The Village Council has embarked on a reckless course. By assuming responsibility for trees that the Village doesn’t own in the rights-of-way, the Village is probably waiving governmental immunity for injuries and damages caused by roadside trees. This borders on stupid.
It also exposes the Village to damage suits for violation of rights under the Michigan Constitution. Jones v Powell, 227 Mich. App 662, 673; 577 NW2d 130 (1998), aff’d 462 Mich. 329; 612 NW2d 423 (2000), quoting Marlin v Detroit, 177 Mich. App 108, 114; 441 NW2d 45 (1989). If the Village maintains and removes right-of-way trees for some, it has to do it for all, budget be damned.
If the Village’s insurance carrier gets wind of this undertaking, it will increase the cost of liability insurance because the risk of an actionable claim increases. Taxes will have to go up to cover all the tree work. Before our taxes rise, this will inevitably take away from other legitimate functions for which the Village is responsible and that the property owners pay for.
Finally, over half the properties in the Village do not have trees that are problematic in the rights-of-way, at least not now. Why should the rest of the property owners pay to benefit the property interests of others? And, while very old trees are the point of contention now, what about younger trees in the rights-of-ways – hundreds of them – that will have to be maintained and removed by the Village if they get sick, hit by lightning, or some other peril befalls them?
END
