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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. 5953

August 11, 1981

HIGHWAYS AND ROADS:

Acquisition and maintenance of a highway or road in a township

TOWNSHIPS:

Authority to purchase land for a public road

A township is without authority to acquire property for highway purposes, except that a township which is a party in a proceeding to declare a private road in the township to be a public road may, with the prior consent of the board of county road commissioners, acquire land for a road pursuant to an appropriate order of the court.

Honorable John A. Welborn

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion regarding the following question which may be stated as follows:

Is a township authorized to enter into a contract for the purchase of property for public road purposes wherein it agrees to maintain the roadway which is constructed?

It is well established that townships have only such powers as are prescribed by law. The Court, in Hanslovsky v Township of Leland, 281 Mich 652, 655; 275 NW 720 (1937), held:

'A township is a municipal corporation, an instrumentality of the State for the purpose of local government. The township board of a township is a body of special and limited jurisdiction. No township has any power or authority except that prescribed by law. (Emphasis added.)

1931 PA 130, Sec. 2, provided for the taking over of all township roads by the boards of county road commissioners, and stated, in pertinent part:

'[Thereafter] each such board of county road commissioners shall, on April first of each succeeding year, take over and incorporate into their county road system, an additional twenty percent of such township highway mileage until the entire township highway mileage in all of the townships of each of such counties has been taken over and made a part of the county highway systems. In the year next following the taking over of all such highways all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages shall be taken over and become county roads.'

The Legislature, in enacting 1931 PA 130, supra, was acting pursuant to constitutional authority vested in it by Const 1908, art 8, Sec. 26, which in pertinent part, stated:

'The legislature may be general law provide for the laying out, construction, improvement and maintenance of highways, bridges and culverts by the state and by the counties and townships thereof and by road districts; and may authorize counties or districts to take charge and control of any highway within their limits for such purposes.'

Const 1908, art 8, Sec. 26, was in effect when the Legislature repealed 1931 PA 130, supra, and enacted 1951 PA 51, Sec. 19, MCLA 247.669; MSA 9.1097(19), which states:

'The board of county road commissioners in each of the several counties shall, within 1 year from the effective date of this act, complete the taking over as county roads of all roads, streets and alleys heretofore required to be taken over as county roads by the provisions of Act No. 130 of the Public Acts of 1931, as amended, being sections 247.1 to 247.13, inclusive, of the Compiled Laws of 1948. Said board of county road commissioners in each of the several counties shall take over as county roads all streets and alleys lying outside the limits of incorporated cities and villages and dedicated to the public in recorded plats approved by said board of county road commissioners, within 30 days after the recording of the plat or the effective date of this act, which ever may be the later. Such dedicated streets and alleys, when taken over by the county road commission, shall be county roads in all respects and for all purposes and shall be classified as county primary roads or county local roads pursuant to the provisions of this act.'

Const 1963, art 7, Sec. 16, provides, in pertinent part:

'The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges, culverts and airports by the state and by the counties and townships thereof; and may authorize counties to take charge and control of any highway within their limits for such purposes. . . .'

Thus, the Legislature has commanded the elimination of township roads.

While there are no township roads at the present time in Michigan, townships do have limited authority regarding roadways within their boundaries. 1954 PA 188; MCLA 41.721, et seq; MSA 5.2770(51) et seq, authorizes a township to make certain public improvements and to provide for the payment of the costs of such improvements. 1954 PA 188, supra, Sec. 2, provides, in pertinent part:

'(1) The following improvements may be made under this act.

'(c) The improvements of public highways by grading, graveling, paving, curbing or draining the same or constructing driveway approaches, or sidewalks thereon.

'(2) A highway under the jurisdiction of either the department of state highways and transportation or the board of county road commissioners shall not be improved under this act without the written approval of the department of state highways and transportation or the board of county road commissioners.'

It is clear that a township may improve and maintain a public roadway; it may do so only with the approval of the authority which has the jurisdiction over the roadway.

Although there is no statutory requirement for a township to maintain and improve a private road, if a township should choose to do so, all costs associated with such work must be paid by the residents located thereon in proportion to the frontage on the road.

1972 PA 139, MCLA 247.392, et seq; MSA 9.195(41) et seq, provides, in pertinent part:

'Sec. 1. In any township, the township board may contract for the maintenance or improvement of any private roads within the township by the creation of a special assessment district. Fifty-one percent of the property owners owning the frontage along a private road shall be required to request the improvement or maintenance by petition to the township board.

'Sec. 2. Upon receipt of a petition the township board of any township may enter into a contract or make such maintenance or improvement with the allocation of cost to be spread against all of the owners in the district benefiting on a pro rata frontage basis. Such improvement and assessment of cost shall not be completed until the township board has created the special assessment district and assessed the properties with proper notice of public hearings to all of the owners of property within the special assessment district to be benefited thereby.'

The only authority a township has to acquire property for highway purposes is contained in 1909 PA 283, Sec. 20a et seq; MCLA 221.20a et seq; MSA 9.20a et seq, as added by 1974 PA 336, and as last amended by 1978 PA 233.

1909 PA 283, Sec. 20a, supra, provides:

'A township with the prior written consent of the board of county road commissioners and upon petition to the township board by 51% of the property owners whose frontage abuts a road may commence an action in circuit court to have the road determined to be a public highway and to determine the length and boundaries of the road. If the court finds that there has been public use of the road for at least 10 years and that public authorities have expanded public money on the road, it shall enter an order that the road has become a public highway setting forth the length and boundaries of that public highway. If the court finds that the road has not become a public highway, the township may in the same action acquire by purchase or condemnation in accordance with section 20th of this chapter the property rights of those owners who in the action claim that the road is not a public highway and the court shall enter its order that the road is a public highway and set forth the length and boundaries of that public highway.' (Emphasis added.)

1909 PA 283, supra, Sec. 20h, provides, in pertinent part:

'The township may acquire property by gift, purchase, or condemnation as it deems necessary to establish a road as a public highway or for improvement of a road following a court order that the road is a public highway.'

In 1909 PA 283, supra, Sec. 20g, the Legislature has provided, in pertinent part:

'[Upon] completion of the improvements to board of county road commissioners standards the public highway shall be accepted by the board of county road commissioners as a county road and made a part of the county road system in accordance with the provisions of section 18 of chapter 4. Between the time that the court enters its order declaring that the road is a public highway and the time that the public highway is accepted by the board of county road commissioners neither the township nor the board of county road commissioners shall be responsible for maintaining the public highway nor be liable for failure to maintain the public highway.'

While a township may acquire property for highway purposes, it may do so only after a court of proper jurisdiction has determined that a public roadway by user does not presently exist. Upon such decision, the township may purchase or condemn the property rights needed to make the roadway a public roadway, at which time the Court shall enter an order declaring the roadway a public highway and setting forth its length and boundaries. It is of significance to note, that even though a township may acquire a roadway following a court order, the township is specifically exempted from maintaining and from liability for failure to maintain the roadway.

It is apparent that the Legislature assumed that a roadway acquired by a township would be accepted by the board of county road commissioners and would become part of the county road system, at which point the responsibility for maintaining the roadway would repose in said county board.

It is my opinion, therefore, that prior to 1909 PA 283, Sec. 20a, et seq, supra, effective December 17, 1974, townships were without authority to acquire property for highway purposes. With the enactment of amendatory 1974 PA 336, however, townships were given limited authority to acquire property for roadway purposes, but only with the prior consent of the board of county road commissioners and pursuant to an appropriate order of the circuit court in an action to declare a private road in a township to be a public road.

Frank J. Kelley

Attorney General


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