In Michigan, there are many statutory protections shielding government entities from liability in civil cases. County road commissions are no different and enjoy many of these same protections. For example, due to statutory protections for county road commissions, it is not possible to obtain title to any portion of a county road via adverse possession or acquiescence. However, it has long been the opinion of many property rights attorneys that common law abandonment remains a viable claim against a county road commission in the right circumstances.
The viability of common law abandonment against a county road commission has recently become a trending topic in property law. Several Michigan Court of Appeals panels had ruled that common law abandonment is indeed a viable claim against a county road commission. However, none of the recent cases produced published opinions. Therefore, the issue was considered by some to be unsettled. This changed with the recent case of Scoby, Trustee of Lanny L. Scoby Trust v Mitchell, No 364152, 2024 WL 292832 (Mich. Ct. App. Jan. 25, 2024). Pending a potential review by the Michigan Supreme Court, this case has solidly established that county road commissions can be subject to a claim for common law abandonment.
In Scoby, plaintiffs bought property in Barry County in 2002. In March 2021, another party bought a neighboring parcel of land. Other defendants, including individuals and the State of Michigan, own property in the same area of Loftus Road in Irving Township. On May 10, 2021, the neighbor’s counsel sent a letter to plaintiffs and defendants stating that, on June, 2, 2021, the neighbor 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 neighbor’s counsel on May 19, 2021, stating that there was no county road across plaintiffs’ property, the neighbor did not have the right to use any of plaintiffs’ property for access to his parcel from Solomon Road, and that the neighbor had no easement rights over plaintiffs’ property.
In response, neighbor’s counsel noted that Loftus Road was accepted as a road and was not abandoned by the Road Commission. On January 19, 2022, neighbor’s counsel sent a letter to plaintiffs’ counsel stating that neighbor intended to “have the extension of Loftus Road surveyed.” Neighbor’s counsel further stated that the chief engineer at the Road Commission stated that Loftus Road was not abandoned. Therefore, neighbor planned to obtain a driveway permit off Loftus Road so that he could access his property. According to neighbor’s counsel, the survey would determine whether the roadbed of Loftus Road was on plaintiffs’ property. Neighbor’s counsel stated that, although “the road has been in dis-use for awhile, the road bed clearly exists.” The parties could not reach an agreement, and litigation followed.
Defendant Road Commission moved for summary disposition, arguing that MCL 600.5821 and MCL 224.18 barred claims of common law abandonment against a county road commission. The trial court granted the Road Commission’s motion for summary disposition. Plaintiff appealed.
On appeal, the Court reversed the trial court and found that no statute prevented the plaintiffs from pursuing a claim of common law abandonment against the road commission. Specifically, the Court noted that the common-law doctrine of abandonment of a highway is well established in Michigan jurisprudence. Further, the Court found that the legislature did not intend to abrogate common law abandonment under MCL 600.5821 because although the legislature listed several claims that were abrogated, they notably omitted common law abandonment from the list.
Similarly, the Court found that MCL 224.18 does not abrogate claims of common law abandonment. The Court noted that while MCL 224.18 does provide a method by which a county road commission may abandon a public road, it never specifically states that common law abandonment is no longer viable. Thus, the Court concluded that the legislature did not intend to abrogate claims of common law abandonment.
It is notable that Scoby is a published case and therefore currently binding on Michigan courts. So long as the decision is not altered by the Michigan Supreme Court, the Scoby opinion will provide much-needed clarity to this area of the law. Further, this opinion protects the rights of private citizens regarding abandoned roads. It should be noted, however, that common law abandonment is a difficult claim to prove. While the claim is viable, not every assertion of common law abandonment will be successful.
The attorneys at Dalton & Tomich, PLC have experience in property rights cases. We represent individuals in many different circumstances all around the State of Michigan. If you feel your property rights are being infringed, please do not hesitate to contact us. We would be happy to speak with you.
