A Primer on Michigan Right of Way Law Second Annual CRA Law Symposium December 6, 2016 Mt. Pleasant, Michigan Thomas E. Reiss The following are slides from a presentation at the County Road Association meeting and do not constitute either the entire talk or legal advice. For application of the legal concepts to a particular situation, or for advice, one should contact one’s attorney. 3 Basic Real Property Concepts 1. Fee Simple 2. Easements 3. Licenses Some Applications to Right of Way Some Situations FEE SIMPLE = THE WHOLE BUNDLE FEE SIMPLE is the full ownership of all possible real property rights in a parcel of land – the Whole Bundle of rights. (Also called “fee simple absolute” or “fee”) Whoever owns the soil, owns as far as the heavens and as deep as hell. (Latin: Cujus est solum, ejus est usque ad coelum et ad inferos.) What Kind of Rights are in the Whole Bundle ? What is in the Bundle? 1. Materials and Space of the Land 2. Possession and Use of the Land Rights to the MATERIAL and SPACE of the Land -- Some examples: • Land and soil • Timber and crops, sod • Minerals (coal, oil, gas, gravel, sand, salt, etc.) • Water (rainfall, well water, run off) • Flowage (e.g., for a mill) • Bottom land of inland lakes (e.g., for docks) • Buildings and fixtures Rights to the POSSESSION and USE of the Land -- Some examples • Building rights • Mining rights • Driveway rights • Air rights • Parking rights • Fishing, hunting trapping • Private road rights rights • Access rights • Littoral rights (lakes and (ingress/egress) water courses) • • fencing rights Riparian rights (rivers) • • Grazing rights Navigation rights • • Recreational rights Farming rights (picnicing, camping, • Drainage and damming swimming, etc. rights Right to TRANSFER the Land 1. Sale & Purchase: Fee simple transfer on tender of deed and full payment. 2. Land Contract: Fee simple held by seller as security for periodic payment until paid in full. 3. Conditional Transfer/Reverter: Fee simple returns to the grantor upon failure of the condition of transfer. 4. Lease: Transfer of possession and use only, for a set; period of time. 5. Life Estate: Transfer of possession and use only until death. Right to ENCUMBER the Land (Restrict or burden it) • Land Contracts, Leases, Life Estates, Reverters • Mortgages (can be foreclosed) • Real Property Liens (can be foreclosed) Construction liens, tax liens, judgment and attorney liens, broker liens • PERMIT / LICENSE Revocable right of another to use one’s land for a specific purpose. Personal. • EASEMENT Irrevocable right of another to use one’s land for a specific purpose. Usually written and recorded. “Runs with the Land.” Types of Easements by Use - Examples • Ingress/Egress • Utility Easements (most common) – Electric power line • Driveway easement – Telephone line • Parking easement – Pipeline • Highway easement • Non-Motorized • Temporary easement transportation path • Drainage easement easement (bike, sidewalk) • Staging easement • View easement • Easement of support • Beach access easement • Light and air easement • Conservation easement • Railroad easement • Historic preservation easement A Few Basic Easements Types of Easements by Structure • Affirmative and Negative Easements • Appurtenant and Gross Easements • Dominent and Servient Estates (Benefited) (Burdened) • Floating Easements • Reciprocal Easements • Exclusive / Non-exclusive Easements Creation of Easements Express Easements [Written, recorded, “run with the land”] Implied Easements [e.g., Easements by necessity] Prescriptive Easements [Acquired by open, notorious, continuous USE without permission; e.g., highway by use] Establishment of Road Right of Way 1. Statutory laying out of roads + Acceptance 2. Statutory dedication of roads + Acceptance 3. Common law dedication of roads + Acceptance 4. Highway by user + Acceptance 1. Statutory Laying out of Roads Art. V II §16 Mich. Const. Legislature can provide for laying out roads and for road commissions. MCL 224.11 Authorizes road commissions to lay out and construct new roads Not less than 4 rods (66 feet) wide. 1. Requires notices and public hearings 2. If owner agrees, may purchase needed property 3. May accept deed only if taxes and assessments paid. 4. If owner disagrees, may condemn MCL 224.12 [Condemnation is governed by various statutes and case law, including MCL 213.171, MCL 213.361, and the Uniform Condemnation Procedures Act, MCL 213.51, et seq.] 5. Deeds (Fee Simple), highway easements, and court orders of vesting and possession should be in the statutory name “The Board of County Road Commissioners of the County of __________ “ (MCL 224.9) and RECORDED. 2. Statutory Dedication (Platting) Michigan Land Division Act MCL 560.101 et seq. 2 Key Elements: A. INTENT of owner – shown by roads on plat B. ACCEPTANCE by road agency (1) Formal: Board acceptance & order of opening (2) Informal: Exercising authority/maintaining (3) Presumed: 10 yrs. after 1st recording. A duly recorded plat conveys roads in “fee simple,” but “held in trust to and for such uses and purposes and no other.” MCL 560.253(1)(2) Called a “Base Fee,” i.e., not the whole bundle of rights. Filing a plat = offer, which must be accepted. 3. Common Law Dedication of Roads 3 Elements : A. INTENT of owner to offer land for road B. ACCEPTANCE and maintenance by Road agency C. USE by the public generally - Formal grant or writing is not necessary - Intent is determined by facts/circumstances - Does not convey fee simple, but easement. Highway by User Statute MCL 221.20 “1All highways regularly established in pursuance of existing laws, 2all 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 3all 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 [66 feet] in width, and where they are situated on section or quarter 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.” [1 rod = 16 ½ feet] [Emphasis added in red] 4. Highway by User 4 Elements: A. Defined line of travel B. Use and Work on the road by road agency C. Public use/ travel for 10 consecutive years. D. Open, notorious and exclusive public use. - Highway by User is a rebuttable presumption - 66 foot width is a rebuttable presumption - 10 years to rebut the presumption - An easement, not a fee simple - Scope includes right to access subsurface Road Acceptance 3 Ways of Acceptance: 1. Acceptance by Board Resolution. 2. Acceptance by expenditure of public funds opening and maintaining a road. 3. Acceptance through public use. - Acceptance is a manifest act - Acceptance is necessary to prevent responsibility and liability for land not wanted or needed - Affidavits of non-acceptance Roads by Transfer • McNitt Resolutions • Road Transfer Statute MCL 247.851 et seq. Uncertified Roads Adverse possession, Acquiescence P. A. 52 of 2016, eff. June 20, 2016 MCL 600.5281 “In an action involving recovery or possession of land, including a public highway…easement or other public ground a …county road commission is not subject to…(a) the periods of limitations under this act. (b) laches. (c) a claim for adverse possession, acquiescence for the statutory period, or a prescriptive easement.” .