The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5142

January 17, 1977

HIGHWAYS AND ROADS:

Abandonment of a county road

COUNTY ROAD COMMISSIONS:

Abandonment of a county road

A board of county road commissioners is empowered to abandon any county road or part thereof by resolution.

After proceedings to abandon a county road or part thereof have been completed, the road or part thereof ceases to exist as a public highway.

Persons whose property abuts a road that has been abandoned and whose access to their property is dependent upon the existence of the road, may object to the abandonment and may also make a claim for compensation against the county road commission for the taking of a vested property right of ingress and egress.

Honorable George A. Prescott

State Representative

10th District

The Capitol

Lansing, Michigan

You ask my opinion on the following questions:

'1. Is there a legal process that must be followed by the County Road Commission prior to abandonment of a road which requires that all persons with property adjacent to the roadway, who use same roadway, must be notified of the Commission's intent to abandon said roadway?

'2. If in fact the Commission does legally abandon a roadway, what then is the status of the thorough-fare once it has been abandoned by the County from their rolls?

'3. What rights do the property owners have who have had the continuous use of said road for a period of more than 20 years? How do they effect those rights? What, if any, criminal sanctions can be effected against the adjacent property owners who are blocking the use of the roadway?'

1909 PA 283, ch IV, Sec. 18, MCLA 224.18; MSA 9.118, empowers boards of county road commissioners to absolutely abandon and discontinue any county road or part thereof by resolution. In Hagerl v Cheboygan County Road Commission, 363 Mich 402, 404, 405; 109 NW2d 800 (1961), the court said as follows:

'CLS 1956, Sec. 224.18 (Stat Ann 1958 Rev Sec. 9.118), empowers boards of county road commissioners to absolutely abandon and discontinue any county road or part thereof by resolution. It requires no petition or hearing except when buildings are located along the portion to be discontinued . . . In cases calling for a hearing the section provides for service of notice of such hearing 'on the owners of record and occupants of lands through or adjoining which it is proposed to absolutely abandon and discontinue such road."

See, also, OAG, 1950-1952, No 1277, p 89 (October 14, 1950).

Some of the pertinent provisions of 1909 PA 283, Sec. 18, supra, appear as follows:

'. . . The 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 a majority vote. The vote of the county road commissioners in respect to . . . absolute abandonment and discontinuance shall be taken and entered, and notice thereof be 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 such road, or part thereof, shall revert to the township or municipality within which the same is situated, and the county shall be relieved of the responsibility therefor. After proceedings to absolutely abandon and discontinue have been had, such road or part thereof shall cease to exist as a public highway. . . . Provided, That the said board of county road commissioners shall not absolutely abandon and discontinue any highway, or part of highway, upon or along which there shall be any building of any character, except as hereinafter provided, upon the written petition of 7 or more freeholders of the township in which said road is sought to be absolutely abandoned and discontinued . . .

'Whenever such petition for absolute abandonment and discontinuance of said road or portion thereof, shall contain the signatures of all of the owners of record and occupants of land abutting thereon, as ascertained from the records in the office of the register of deeds and the certified list above provided for, the board of county road commissioners shall, within 20 days after receiving the same, determine the advisability of such abandonment and discontinuance and either grant or deny said petition without further proceedings thereon. In all other cases said board shall, within 20 days after receiving such petition, issue a written notice stating the object of such petition and appointing a time and place of hearing, which notice shall be served on the owners of record and occupants of lands through or adjoining which it is proposed to absolutely abandon and discontinue such roads. . . .' (Emphasis added)

Assuming compliance with 1909 PA 283, Sec. 18, supra, the public would lose its right to use of such highway so abandoned and discontinued. The wording of the statute specifically provides that such road or portion thereof shall cease to exist as a public highway. Moreover, the word 'abandonment' as used in connection with property means a complete divestiture and relinquishment of any interest therein. Hough v Brown, 104 Mich 109; 62 NW 143 (1895). Although the public may be required to travel a more circuitous route because of such abandonment, they have no claim against a county road commission for compensation or damages because they do not have a vested property right in such road.

In Tomazewski v Palmer Bee Co, 223 Mich 565, 569-570; 194 NW 571, 572-573 (1923), the Court said:

'The question of eminent domain is not involved. By no stretch of imagination can it be said that property rights of plaintiffs are taken. Mere inconvenience in having to go around the east half of the block next south, instead of through it, constitutes no taking of the property of plaintiffs. It is a well settled rule that a lot owner's right to object to the vacation of a part of a street depends upon whether his lot abuts upon or comes in actual contact with the vacated portion, or access to his lot is entirely or materially cut off by reason of the vacation. That he may be inconvenienced or that he may have to go a more round-about way to reach certain points does not bring to him any injury different in kind from the general public but only in degree. If no means of ingress and egress are not cut off or lessened in the block of the abutting owner but only rendered less convenient because of being less direct to other points in the city and made so by the vacation of the street in another block such consequence is damnum absque injuria. . . .' (Emphasis added)

Those persons, however, whose property abuts that portion of the road that is to be absolutely abandoned and discontinued, and whose access to their property is dependent upon the existence of the road, not only may object to such abandonment but also may make a claim for compensation against the county road commission for the taking of a vested property right of ingress and egress. In Tom v State Highway Commissioner, 376 Mich 608, 618-619; 138 NW2d 322, 326 (1965), the Court said:

'. . . Indeed, the right of reasonable access by an abutting owner has been characterized by this Court as an 'indefeasible right'. Goodfellow Tire Co. v Detroit Commissioner of Parks and Boulevards (1910), 163 Mich 249, 254. And see Giegling v Helmbold (1959), 357 Mich 462, 464, where the Court said:

"It has long been decided law in this State than an abutting owner's right of access to a public street or alley is an interest in the land concerned. Horton v. Williams, 99 Mich 423.' (Emphasis added)

'It follows that when a governmental unit injures that right of access, it injures a property interest, and that injury, under the holding of Pearsall, supra, [74 Mich 558] constitutes a taking' for which just compensation constitutionally is required.'

Usually, county road rights of way are by easement for road purposes. The abutting property owners who have the underlying fee interest in the land over which the easement runs would have that land free and clear of such easement by virtue of the absolute abandonment and discontinuance of the county road. See Valoppi v Detroit Engineering & Machine Co., 339 Mich 674; 64 NW2d 884 (1954). Conzelman v City of Detroit, 218 Mich 328; 274 NW 811 (1937).

Accordingly, an abutting property owner is not required to keep open for public use that portion of his property over which the road previously existed.

Frank J. Kelley

Attorney General