The question posed in the title of this article comes up frequently in topics of concern to the citizens of Ludington. The bigger idea usually involves these areas on Ludington Avenue as they pertain to people (often strangers) establishing blankets and lawn chairs in that area the date of the Freedom Festival parade, not to mention the placing of temporary signs advertising city events on the very visible sides of Ludington's main street.
But there are a few other reasons why the answer to the question is important. Can you as a homeowner use that area to put up a sign advertising your business or in support of your political candidate or beliefs? Can you have a say in deciding whether the City of Ludington plants a tree in that area and have a say in what type of tree you're willing to accept there? Can I plant a garden or put up decorative fencing in that area?
These, and more, are questions that naturally come up and are often dependent on the understanding of who is responsible for and in control of the property in question. Let's start the discussion off with coming up with something simple to call the area between the street and sidewalk (or equivalently, the approximately 20 ft. piece of land to the side of your street, if you have no sidewalk).
This area goes by many colloquial names in Michigan, you often will hear it called the street right of way around town, but around Detroit it's often called a boulevard. Other parts of Michigan call it an extension lawn, curb lawn, or berm. For simplicity sake, we will call it the verge, which is a more universal term that describes it and doesn't have a secondary meaning that may confuse the issue further.
Common law has a legal presumption that the property fronting onto the road includes ownership of the paving, grass verge and road to the mid-point thereof. Streets have typically been adopted by the local authority after entering into an agreement with the original developer or builder of the property. This means that the local authority maintain the surface of the paving, grass verge and road, but so far as ownership of the sub-surface is concerned the owner of the abutting house or land (called the "frontager"} is in actuality the owner of it.
Common law leads us to question why Ludington and other communities force the maintenance of the verge onto the property owner rather than the local authority. This is established by noting that creating an ordinance that requires the property owner to mow the verge and remove noxious weeds therefrom is clearly related to the public interest of protecting the public's health and welfare. Requiring the land owner to conduct basic maintenance has traditionally not been considered a Constitutional taking, as the value of the property is not diminished, the verge maintained does not have a public purpose (like the street and sidewalk), and is within the reasonable use of police power.
Since a city has no legal authority to require a person to maintain the property of someone else, even a verge that city officials claim is their property, the street verge definitely does not belong to the city even outside of common law. The city's easement of the verge simply allows them and other utilities to complete their public purposes, which may just be to separate the street from the sidewalk for pedestrian safety. Nevertheless, the City of Ludington has allowed areas like this to exist near the beach for decades on Park Street, where the safety of pedestrians and motorists are ignored.
In 2016, a case came to the Michigan Appeals Court where statutory and common law was looked at in some detail in order to delineate who exactly has responsibility for the verge. In Morelli v. City of Madison Heights, Kim Morelli sued both the City and Don East when she tripped over a hole created by the City's removal of a tree in the verge on Mr. East's property. The trial court disallowed East from being dismissed from the lawsuit, on appeal asserting that he did not have possession or control over the verge on which Morelli fell.
Like Ludington, Madison Heights required property owners to mow this area and recognized the verge as part of the city's easement. The appeals court found that East did not legally owe Morelli a duty because he did not have legal possession and control over the verge. The court relied on a 1994 precedent in Morrow v. Boldt which held:
"The owner of the fee [land] subject to an easement may rightfully use the land for any purpose not inconsistent with the easement owner's rights. However, it is the owner of an easement, rather than the owner of the servient estate [property owner], who has the duty to maintain the easement in a safe condition so as to prevent injuries to third parties."
The court reasoned that just because East mowed the grass because of a city ordinance, he had no duty or liability to fix a hole that was created by the City in their easement of East's property. Had East tried to fix the hazard nevertheless, he could only be found at fault if the attempted fix could be shown to have contributed significantly to the trip and fall that happened.
So common law, statutory law, and court precedent are all in agreement that the deed to your property which says you own all the land out to the middle of the street is correct. But you have limited control because of the easement the local authority and utility companies hamper you from doing anything with the sidewalk or street that would hamper their public use. The verge, however, rarely has a public easement purpose that prohibits the property possessor from using that part of his property, as long as it's not inconsistent with the nature of the verge's easement.
How does this knowledge affect some of the original issues that we had questions about? If somebody sets up lawn chairs and blankets in the verge of your property without permission, you can remove them, and you should have the City's blessing since it removes a hazard and liability. If event organizers place a sign on your verge without getting your permission, you have the right to remove it without repercussions from the local authority.
If the City says you can't plant a garden or put decorations in that area, have them show you in the easement agreement where that clause is. If the City or Tree Advisory Board wants to plant a Kentucky Coffeetree or some other messy tree in your verge without your permission, you have the right to uproot it and return it if they can't show you where their easement agreement allows them to plant trees (which often hinder easement uses) without your permission in that strip.
If your local code enforcer takes your political signs out of the verge and puts them in his back seat, challenge them and chastise them for trespassing and theft.
If that code enforcer moves your otherwise permitted 'for sale', 'yard sale', or business sign out of the verge to the other side of the sidewalk, let city hall know that you are upset with the harassment, and need it to stop. Show them this article, have them prove their own baseless position, then when they can't, move your sign back to where it was. Whenever a city official or a fellow citizen claims that the city owns that part of your property, set them straight as to who the real owner is, and who has a limited easement.
Protect all of your property, you pay taxes on all of it, after all.
I had already spent some time researching this article before Melissa Reed brought the parade blanket issue up. Another Reed serving as a public official, Shaun Reed (no relation), has been spending his time moving my modest firewood sign all year from the verge to the other side of the sidewalk. When he was last doing this in his unlawful position as a code enforcement officer, he actually caught me home and apprised me that the sign can't be on city property. I was fine with that, I said, but where it was placed on wasn't on city property.
He made the usual insipid claim that the city owned that strip of land, I politely reminded him that the deed to the property extends to the middle of the street. It was a little awkward when he didn't have a comeback rather than threatening me about moving it again if it gets placed back in the right-of-way. My sister-in-law and her kids were visiting at the time, so I just told him to send me his claim to the property. It's been a couple of weeks.
The signs themselves are actually rather fragile, the frequent moves have effectively destroyed one of them. My message to Shaun Reed is stay off my verge unless you're doing something in accordance with the city's easement agreement, and keep your hands off my property. My message to Melissa Reed is to start being consistent in your message; if you want to give the City of Ludington more power (and you likely do since you're a Planning Commissioner), don't diminish the property owner's rights, ones you should know if you did any research.
If any ordinance is created, I would like it to acknowledge the right of the easement owner, the potential liabilities of having unanchored stuff in the verge, and the public's right to enjoy a parade. This should clearly allow the property owner to remove blankets, etc. put on their verge more than a reasonable time before an event (say one or two hours) unless they have given consent. Consistent with the easement, the owner should not have the right to remove people from their verge during the parade unless they are doing something otherwise unlawful and disruptive. Unfortunately, the ordinance creating process rarely takes into account any kind of compromise between the three parties involved (public, lot owner, City) that recognizes all the rights involved.
This is a very interesting topic and one I have thought about quite a bit. We always set chairs out early in the morning on parade day until several years ago when we showed up to enjoy the parade and all of our chairs were missing. It seems that a chair ferry made quite a haul not only with our chairs but with many others. That's the last time we put chairs out without having a family member standing guard. I know that most Cities private property lot lines do not extend to the center of the street. Check your mortgage deed survey which will show where your front lot line begins. I'm assuming it depends on when a particular subdivision was plotted and surveyed. In rural areas property lines extend to the center of the road because there usually are no curbs or sidewalks to deal with. It all depends on the jurisdiction you live in. There are several ways to look at this. If the area between the curb and sidewalk is included in the property deed then the owner has every right to keep people off and I would imagine the owner could be held liable if anyone were to be injured while on that property. It may sound picky to keep people off the property, however, one of the main rights we have is our ability to own private property and that right must be preserved. If the area in question belongs to the City, then it is public property and can be used by the public. I'm sure there have been many court battles over this topic. This situation is similar to the dispute brought before the courts regarding allowing the public to walk along great lake beaches if they are walking below the high water mark of the beach.
You're right, the issue is awfully complex in that area due to the fact that the street and sidewalk have very definite easement rules, while the street verge's rules are usually not well defined for an easement. For example, in the second picture above, one would think the property owner would need to cut the overgrowth in the verge (there is no sidewalk) because it's totally obstructing the street-side, and part of the street if you notice the tree overhang. Even if we totally understand 'easement law' there are still ill-defined concepts that could come before the court when liability or 'ownership' issues come up.
One could say there is a public interest in keeping blankets and lawn chairs off the verge until the day of the parade and so an ordinance is in order, but it might turn into a big controversy with the public and a court case with some litigious citizen who is upset about losing additional property rights. This is why I think they hesitate to go any further. Why bother, there'd be more issues if you make a law.
My 2 cents regarding leaving blankets/chairs for events like a parade is perhaps a person seeking to leave their blankets/chairs should knock on the homeowners door and ask them if it would be okay to do so. Doing so may make the homeowner a little more willing to allow the leaving of blankets/chairs as they would have an understanding, maybe in the long run both parties might become friends. As far as the homeowners go, if they don't want people leaving blankets/chairs on their property maybe they should put signs up noting that they are not allowed and if blankets/chairs are left that they will be removed/disposed of. If the homeowner is responsible (to a certain degree) for that section of grass between the sidewalk and street, they should at least be able to set their own blankets/chairs so that they can enjoy the parade, even if its a few minutes before the start of the parade.
Does everyone here see how simple the solution is? It's just common sense and consideration-- no big local government solution needed. One person realizes that they plan on 'taking' away a property owner's basic right, so they ask the owner if they would mind the inconvenience of having a blanket on their front lawn for a short time in preparation for the parade. Most homeowners would appreciate the consideration of doing this simple act of politeness, so they might even intervene if they see somebody else trying to mess with your blanket in your absence or try to preserve that spot for you in the future.
There's nothing more obnoxious than taking advantage of somebody else's property without getting consent and acknowledging the gift.
On my property on Ludington Ave. the survey is staked just inside of the sidewalk. I don't want nothing to do with owning to the center of the road . Next thing I'll be responsible for repaving. But , I was responsible for replacing the sidewalk The City also says I'm responsible for mowing their grass. I like most people on the Ave. stake out a area for family and friends . To hell with the tourist . Never had one stop to pull weeds , but then none of my family has either.
Any property owner should know better than to give permission for people to use their property, that is, unless you have deep pockets to pay for an attorney in defense of a lawsuit if someone is injured while on that property. As stump has discovered, his property line begins between his house and the sidewalk. My guess is that most if not all property along Ludington Ave has the same front lot line situation, as it is a U.S. Highway. So my guess is that any property on Ludington Ave between the curb and sidewalk is public and cannot be roped off and access denied to the public. As a matter of fact, roping off any right of way is an illegal act.
There's few things I hate worse than disproving myself later on, but due to further research, numbers not adding up, your comments, and fire insurance maps, I can now say that you actually don't own the street verge, at least here in the platted lands of Ludington.
The Sanborn fire maps of Ludington between 1890 and 1916 (a portion shown below) shows typical plotted land in Ludington. You can see the footprint of the bakery in the NE corner of the Dowland/James intersection, the Commercial Hotel in the footprint of my current property at 137 & 139 E Dowland. Our buildings currently abut the sidewalk, but they are in the platted lots that are 60' wide X 140' long. The streets are all marked out as 70' wide meaning that the 'right of way' currently starts at the sidewalk and proceeds 35' to the center of Dowland Street.
I had originally placed my beliefs on a property survey paid for by a prior owner of the 'Commercial Hotel' which used the center of the streets as a main reference point, rather than the platted lots themselves. This led me to an erroneous conclusion that the deeded property extended that far. The platting is fairly consistent throughout Ludington, meaning that you strictly do not own the street verge in front of your property. But do not forget that in common law: It is the case that all non-private roads have been adopted by the local authority, who enter into an agreement & bond with the developer or builder of the property. This means that the local authority maintain the surface of the paving, grass verge and road, but so far as ownership of the sub-surface is concerned the owner of the abutting house or land (called the "frontager"} is in actuality the owner of it."