COA Vacates Highway-by-User Claim Dismissal; Affirms Dismissal Of First Amendment Retaliation In Road Dispute
Opinion Published: February 11, 2026 (O’Brien, Murray, Letica)
COA Docket No. 369906
Calhoun County Circuit Court
Holding: The Court of Appeals vacated the trial court’s dismissal of the highway-by-user claim under MCR 2.116(C)(8) and remanded for further proceedings, holding Plaintiff-Appellants had standing, and the court prematurely resolved whether private parties can “force” a municipality to accept a road as public under MCL 221.20. The Court affirmed dismissal of Plaintiff-Appellants' First Amendment retaliation claim under 42 USC 1983, concluding the letters and communications did not show adverse action by the City Attorney, the claim against the city was conclusory, and the City Manager was entitled to qualified immunity.
Facts: Lakewood Drive, a dead-end road located in Battle Creek Township, was dedicated to public use in 1929. In 1965, the Calhoun County Road Commission abandoned Lakewood Drive, making it private property of adjacent owners, who then agreed to an easement for maintenance.
In 1983, Battle Creek Township merged into the City of Battle Creek, and the current complaint alleged decades of public use and city maintenance, including snowplowing, repairs, and curb and gutter work, particularly serving access to Willard Beach Park.
In late 2022, the City Manager notified Plaintiff-Appellants that, based on the 1965 abandonment, the City would cease maintenance after May 1, 2023, prompting Plaintiff-Appellants to invoke MCL 221.20. The City Attorney responded that mistaken maintenance did not satisfy the statute, noting the statutory 66‑foot width presumption and potential need to connect to George B Place, a neighboring street, if the road were accepted, and stated the City lacked ownership authority over the roadway corridor.
The City Manager then emailed Plaintiff-Appellants adopting the private-road position and ending maintenance immediately, citing assessing and GIS records and an owner’s desire to keep the road private. The parties met without resolution, and Plaintiff-Appellants sued, seeking a declaration that the road is public under the highway-by-user statute. Plaintiff-Appellants also sought damages under 42 USC 1983 on the basis that Defendant-Appellees violated their First Amendment right to petition the government for the redress of grievances. Defendant-Appellees moved for summary disposition under MCR 2.116(C)(5), (7), (8), and (10), and the trial court granted dismissal of the highway-by-user claim under (C)(8) and the First Amendment claim under (C)(8) and (C)(10).
Key Appellate Ruling
On the highway-by-user claim, the Court of Appeals held that Plaintiff-Appellants did have standing under Donaldson v Alcona Co Bd of Co Rd Comm’rs, 219 Mich App 718, 727 n 3; 558 NW2d 232 (1996) because they own property along the road and bear unique burdens if maintenance ceases.
The Court further ruled that the trial court erred by relying on Donaldson’s dicta suggesting private parties cannot use MCL 221.20 to compel public acceptance, because that footnote was not binding, and the issue need not be decided at the pleadings stage. The Court explained public acceptance can occur implicitly through maintenance sufficient to keep the road reasonably passable, and the merits should be addressed on remand.
On the First Amendment claim, the Court held that Plaintiff-Appellants engaged in protected petitioning, but the City Attorney’s letters outlining potential legal consequences and the City’s position did not constitute adverse action that would deter an ordinary person. The Court found no genuine issue of material fact as to adverse action by the City Attorney.
As to the City Manager, moving the cessation date to February created more than a de minimis negative consequence and raised a factual dispute on adverse action and causation at the merits stage. However, the Court affirmed summary disposition for the City because the pleadings were conclusory and lacked factual showings of a municipal policy or custom. The Court also affirmed qualified immunity for the City Manager because no clearly established law made it beyond debate that advancing the discontinuation date during an ongoing dispute violated the Petition Clause.
The Court therefore vacated the highway-by-user dismissal and remanded the case. The Court also affirmed dismissal of the 42 USC 1983 claim.
