Amicus Brief

Gerald and Karen Mason v City of Menominee

Case Year: 2009
Case Forum: Michigan Supreme Court
Keywords: adverse possession, acquiescence, Revised Judicature Act, limitations period
Amicus Counsel:

Mary Massaron Ross (P43885) | Jeffrey C. Gerish | Plunkett & Cooney, PC. | 535 Griswold, Suite 2400 | Detroit, MI 48226 | 313-983-4801

CoAmicus Parties:

1. Michigan Municipal Leage Liability and Property Pool (Pool)
2. Michigan Townships Association (MTA)
3. County Road Association of Michigan
4. Michigan Bar Public Corporation Law Section (PCLS)


The Menominee Circuit Court erroneously held that public property can be taken from a municipality through the doctrine of acquiescence. The Court of Appeals erroneously affirmed that legal holding. The Court of Appeals opinion appears to be the first ever Michigan appellate decision holding that public land can be taken from a municipality through an acquiescence claim. It is clearly erroneous and will cause material injustice in several respects. The decision plainly misinterprets a statute, MCL 600.5821, the sole purpose of which is to immunize municipalities from attempts to take public land from municipalities through theories of recovery that depend
on the expiration of a limitations period, e.g., adverse possession and acquiescence. Indeed, there are several Court of Appeals decisions that explicitly hold or recognize that MCL 600.5821 immunizes municipal corporations from such claims—which the Court of Appeals opinion simply ignored.
Publicly owned property is now subject to being transferred to private parties across the state, through claims of acquiescence that have the easiest of burdens of proof. If anything, private persons seeking to quiet title to public land in their favor have an advantage over municipal corporations given the number of people involved on the side of the municipalities over time.
Litigation between municipalities and private parties over real property disputes can be expected to increase exponentially. Even if the Court of Appeals decision does not result in a
flood of claims by private parties, it would appear to require municipalities to file suit in any case in which an acquiescence claim might be expected, less the municipality’s would-be opponent beat it to the courthouse.


On order of the Court, the application for leave to appeal the February 26, 2009 judgment of the Court of Appeals and the application for leave to appeal as crossappellant are considered, and they are DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.

MSC requested LDF amicus brief? No

Plaintiffs are the owners of residential real property in Menominee. Defendant is the owner of real property surrounding plaintiffs’ property on three sides, commonly known as the Water Tower Park. At issue is a 60 foot strip of property, running north and south through the Water Tower Park, which adjoins the eastern border of plaintiffs property. This property was originally deeded to defendant for a proposed Twentieth Street. But Twentieth St. has never
been improved and, according to the trial court’s findings, had never been used as a roadway. Plaintiffs have used a portion of the parcel as their driveway extends onto it. Plaintiffs brought
this action to quiet title over (hose portions of the right-of-way” that their driveway extends onto.

Case Number: 2007-21
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