Petition — 31.72 Acres of Land, Executor of the Estate of Estelle Day Phillips, and Eva Day Leber v. United States of America

VINILO*OUPI CG YvuUuy vow

Yr ris

P= 15 1981

No. 8 0 = ]1 j ALEXAND = L. STEVAS,

ee

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1980

31.72 Acres or LAanp, More

or Less, Avice Day Rouns,

Marcaret Day Travis, Marion

Day Warnes, Davip H. Day III,

Susan S. Day, Rospert H. H. Day,

Neue B. Day, Heten G. Day,

WiLuAM Puitups as Executor

of the Estate of Estelle Day

Phillips, and Eva Day Leper,

Petitioners,

Vv

Unrrep STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Robert F. Travis

BAUCKHAM, REED, Lana,

SCHAEFER & Travis, P.C.

Business Address:

500 Park Building

Kalamazoo, Michigan 49007

Telephone: (616) 382-4500

Counsel of Record for Petitioners

AMERICAN PRINTING COMPANY

1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310

Fee oe

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II.

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QUESTIONS PRESENTED FOR REVIEW

Whether the decision of the Court of Appeals for the

Sixth Circuit is in conflict with the opinion of this

Honorable Court in Evans v Abney, 396 US 435

(1970)?

Whether the decision of the Court of Appeals for the

Sixth Circuit reflected an incorrect interpretation of

Michigan law, in light of the case of Baldwin Manor v

City of Birmingham, 341 Mich 423; 67 NW2d 812

(1954)?

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TABLE OF CONTENTS

&

QUESTIONS PRESENTED FOR REVIEW ........

TARR Ie PANS EERIE REED. oes 0 cs cree tire see iil

CPEs REI i si at ee ie ees

CONCISE STATEMENT OF JURISDICTION ......

CONSTITUTIONAL AND STATU1 ORY

PROVES ee OVI Be ie cc cabiltge sc cctiieess

CONCISE STATEMENT OF THE CASE..........

REASONS FOR ALLOWANCE OF THE WRIT ...

THE DECISION OF THE DISTRICT COURT.

AS AFFIRMED BY THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT, IS IN CONFLICT

WITH THE OPINION OF THIS COURT IN

EVANS v ABNEY, 396 US 435 (1970) .........

THE DECISION OF THE DISTRICT COURT.

AS AFFIRMED BY THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT. WAS CONTRARY

TO MICHIGAN COMMON LAW FROM AND

AFTER THE 1954 MICHIGAN SUPREME

COURT DECISION OF BALDWIN MANOR vy

CITY OF BIRMINGHAM, 341 MICH 423: 67

OWE ME BOk CIDP O ERS oc sne Keane ss ogee waeen nae

COIING ER ae eink vc us'n-0at op su'd ae o Wee ye) Paeane

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TABLE OF AUTHORITIES

Cases: Page

Baldwin Manor v City of Birmingham 341 Mich 423; 67

Pre: ee CEI i ea oes Pk ee Cas oe a 6,7,8,9,10

Central Land Co v City of Grand “sama 302 Mich

105; 4: TU W208 SBS LIES) on. oie CURE laos vwecenear 7,8,9

Clark v City of Grand Rapids 334 Mich 646; 55 NW2d

BOs: CEMAMD <cthic da Wins A6:Ank vO Nes ice 0 ah heey eee 7,10

Evans v Abney 396 US 435 (1970) ............... 5,7,10

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PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, 31.72 Acres of Land, more or less, Alice

Day Rohns, Margaret Day Travis, Marion Day Warnes,

David H. Day III, Susan S. Day, Robert H. H. Day, Nellie

B. Day, Helen G. Day, William Phillips as Executor of the

Estate of Estelle Day Phillips, and Eva Day Leber pray for

issuance of a writ of certiorari to review the Order of the

United States Court of Appeals for the Sixth Circuit entered

in this proceeding on January 21, 1981.

OPINIONS BELOW

The Order for the United States Court of Appeals for

the Sixth Circuit is an unpublished Order entered January

21, 1981. A copy of the Order is included in the appendix.

No separate opinion was issued; the three page Order

contained the reasoning of the Court of Appeals.

The Order of the Sixth Circuit affirmed an order of the

United States District Court for the Western District of

Michigan entered in its Case No. 77-282 on April 7, 1980.

The District Court’s Order was also unpublished. A copy

appears in the appendix.

CONCISE STATEMENT OF JURISDICTION

The Supreme Court has jurisdiction to hear this case on

certiorari under 28 USC §1254(1). A written Order was

issued by the United States Court of Appeals for the Sixth

Circuit on January 21, 1981.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

None at issue.

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CONCISE STATEMENT OF THE CASE

On November 20, 1920, David H. Day and Eva H. Day

conveyed the subject property by warranty deed to the

State of Michigan. The grant of land was made subject to

the following condition:

. .. to be used for a public state park, should the

same be abandoned for that purpose, it shall revert

to the party of the first part [David H. Day and Eva

H. Day], their heirs and assigns.

The land was held by the State of Michigan and was used

from 1920 to 1975 as the D. H. Day State Park.

On October 21, 1970, the United States Congress

enacted the Sleeping Bear Dunes National Lakeshore Act,

16 U.S.C. §§460x et seq. This Act, among other things,

directed the Secretary of the Interior to acquire by donation

“those lands owned by the State of Michigan within the

boundaries of the area designated for inclusion in the

lakeshore .. .”’ 16 U.S.C. §460x-1. This area included the

land deeded to the State of Michigan by David H. Day and

Eva H. Day.

From and after October 21, 1970, the Secretary began

acquiring land within the boundaries of the Lakeshore.

Much of the land was purchased from private owners, and

some lands were acquired by the filing of complaints in

condemnation. By Act No. 359 of the Public Acts of 1974,

MCLA §§3.901 et seqg.; MSA _ 13.766(1) et seq., the

Michigan legislature authorized the Michigan Department of

Natural Resources to, among other things, convey to the

United States ‘‘by quit-claim deed or deeds the title to

lands as is vested in the state and under the jurisdiction of

the department of natural resources . . . which lie within

the boundaries of the lakeshore zone and the parkway

locations of the Sleeping Bear dunes national

lakeshore. . ."’. ,

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Notwithstanding this state legislation, no deed for the

subject property was executed. Nevertheless, on April 1,

1975, the United States Department of Interior, by and

through its agents, servants, and employees, took

possession of the subject park land and has remained in

possession ever since. On or after that date, the park has

been manned by employees of the Department of Interior

and not State employees. Decisions relating to park

management have been made by the United States and not

by the State of Michigan. Changes have also been made to

the park, although the use of the park did not change. Prior

to April 1, 1975, the State of Michigan operated the park as

a public campground, charging fees to the public;

subsequent to April 1, 1975 and up to the present time, the

property has been used as a public campground, with fees

charged to members of the public.

On May 1, 1975 the State of Michigan, through its

Department of Natural Resources, granted full and

exclusive jurisdiction over the subject property to the

Sleeping Bear Dunes National Lakeshore. By this act the

State did not relinquish title to the property; it only

authorized the National Park Service to make such use of

the property as would have occurred if a deed could have

been delivered. The term of this grant was one year from

the date of April 1, 1975 and year-to-year thereafter until

terminated by the delivery of a deed. The permit

conditioned delivery of the deed on the satisfactory removal

of the remainderman interest which D. H. Day and Eva H.

Day reserved for themselves and their heirs in the 1920

deed. (The foregoing is taken in its entirety from the

Statement of Facts by the District court. The Statement of

Facts in the Order of the Court of Appeals for the Sixth

Circuit does not differ materially).

After the U.S. went into possession, it began the

solicitation of quit claim deeds from the heirs of D. H. and

Eva H. Day. By agreement of the parties, the present suit

was commenced by the U.S. in June of 1977 in order to

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resolve the issues for all concerned. The State and Federal

officials dealing with the land had been aware of the

reverter clause and the controversy relating to that clause

well before taking any actions concerning the property.

The case was argued before the Honorable Noel P. Fox

on stipulated facts. The District court, in an opinion filed

April 7, 1980, ruled in favor of the U.S., on the ground that

the voluntary transfer of the park to the federal government

did not amount to a ‘‘real and substantial violation’’ of the

condition embodied in the deed.

The Day heirs appealed to the Sixth Circuit Court of

Appeals, which, on January 21, 1981, issued a three page

Order briefly summarizing the facts and affirming the

District Court.

To provide a convenient reference for the Court,

petitioners set forth the following timetable of events:

1. November 20, 1920. Deed by D.H. Day and Eva

Day.

2. 1920-1975. Use of the land as a ‘‘public state

park.”’

3. October 21, 1970. Effective date of 16 USC

460x, the Sleeping Bear Dunes National

Lakeshore’’ Act.

4. December 23, 1974. Effective date of 1974

Michigan Public Act 359, the ‘Sleeping Bear

Dunes National Lakeshore Park’’ Act.

5. April 1, 1975. The State of Michigan voluntarily

yields possession and control over the park to

the U.S.; possession and control is assumed by

the U.S.

6. May 1, 1975. LICENSE AND PERMIT FOR

FEDERAL USE OF STATE REAL

PROPERTY is issued by the State of Michigan,

authorizing the U.S. National Park Service to

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make such use of the land as would have

occurred if the land had been deeded to the U.S.

on April 1, 1975.

7. April 1, 1976. U.S. solicits quit claim deeds

from Day heirs; requests were subsequently

denied by all Day heirs.

8. June 9, 1977. The instant suit was filed by the

U.S. to condemn the reversionary interests of

the Day heirs.

9. April 7, 1980. District court issues Opinion and

Order; Day heirs appeal.

10. January 21, 1981. Sixth Circuit Court of

Appeals issues Order affirming the Districi

Court.

The heirs of D.H. and Eva H. Day now bring to this

Court their Petition for Certiorari under 28 USC 1254(1).

REASONS FOR ALLOWANCE OF THE WRIT

I. THE DECISION OF THE DISTRICT COURT, AS AF-

FIRMED BY THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT, IS IN CONFLICT WITH THE

OPINION OF THIS COURT IN EVANS v ABNEY, 396

US 435 (1970).

In Evans v Abney, 396 US 435 (1970), this Court upheld

the reversion of a public park which had been dedicated as

a public park exclusively for the use of members of the

white race. When segregated parks became unlawful, it was

held that the land would revert to the heirs of the donor,

rather than becoming a park for the use of the entire public.

In upholding this decision, this Court said at 396 US 447:

‘*...the loss of charitable trusts such as

Baconsfield is part of the price we pay for permitting

deceased persons to exercise a continuing control

over assets owned by them at death. This aspect of

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freedom of testation, like most things, has its

advantages and disadvantages. The responsibility of

this Court, however, is to construe and enforce the

Constitution and laws of the land as they are and not

to legislate social policy on the basis of our own

personal inclinations.”

The exact motives of the donor in the case at bar are

lost in antiquity. However, the record is sufficient to show

that D. H. Day was a rugged individualist with strong

emotional ties to the State of Michigan and to its park

system, and that he was well aware of the existence and the

nature of the federal park system, as well as other kinds of

public parks then in existence, such as city, township and

county parks. (15a, I6a, 17a)

In its decision, the District Cour: in effect removed the

word ‘‘state’’ from the limitation in the deed; ‘‘to be used

for a public state park.’’ (emphasis supplied)

If this had been the intent of the donor, the word

‘*state’’ could easily have been omitted from the

carefully-drawn deed, as the sentence or phrase is complete

without it.

As will be shown in the comments below, this created a

result contrary to Michigan common law from and after the

1954 Michigan Supreme Court decision of Baldwin Manor v

City of Birmingham, 341 Mich 423; 67 NW2d 812.

ll. THE DECISION OF THE DISTRICT COURT, AS AF-

FIRMED BY THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT, WAS CONTRARY TO MICHIGAN

COMMON LAW FROM AND AFTER THE 1954

MICHIGAN SUPREME COURT DECISION OF

BALDWIN MANOR vy CITY OF BIRMINGHAM, 341

MICH 423; 67 NW2d 812 (1954). é

The District Court and the Court of Appeals for the 6th

Circuit relied entirely for their interpretation of Michigan

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common law on two cases: Clark v City of Grand Rapids,

334 Mich 646; 55 NW2d 137 (1952), and Central Land

Company v City of Grand Rapids, 302 Mich 105; 4 NW2d

485 (1942).

Neither court discussed the applicability of the later

Michigan case of Baldwin Manor v City of Birmingham,

supra, 341 Mich 423; 67 NW2d 812 (1954), although

petitioners had extensively briefed this case before both

courts.

In addition to being a more recent decision, Baldwin

Manor, supra, bore more directly on the issues in the case

at bar than the two cases relied upon, cited above.

It is respectfully submitted that the result of this

selection of cases was ‘‘to legislate social policy on the

basis of . . . [the court’s] own personal inclinations’’ rather

than ‘‘to construe and enforce the constitution and laws of

the land as they are’’ as mandated by this Court in the

language of Evans v Abney, supra, 396 US 435 (1970),

quoted on page 5 of this Petition.

In Baldwin Manor vy City of Birmingham, 341 Mich 423;

67 NW2d 812 (1954), supra, the Michigan Supreme Court

quoted with approval from 39 Am Jur 816, 817, Parks,

Squares, and Playgrounds, §21, as follows:

‘‘A different construction is placed on dedications

made by individuals from those made by the public.

The former are construed strictly according to the

terms of the grant, while in the latter cases a less

strict construction is adopted.’* [341 Mich 430; 67

NW2d 815].

This distinction makes sense. In the case of a public

dedication, various members of the public may hold

differing views on the ends to be served by the dedication,

and many may be unaware of the transaction. The terms of

the deed would not ordinarily be reviewed by the ‘‘public’’

after it was drafted. A private donor, however, speaks with

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one voice, presumably has strong views on the subject of

any reservations, and sezs the language of the deed at the

time of its execution, at a minimum.

The Baldwin court also said at 341 Mich 430, 67 NW2d

815:

‘*[2] Likewise, in 26 C.J.S., Dedication, §65, pages

154, 155, it is said:

‘Except as appears below, if a dedication is made for

a specific or defined purpose, neither the legislature,

a municipality, or its successor, nor the general

public has any power to use the property for any

other purpose than the one designated, whether such

use be public or private, and whether the dedication

is a common-law or a statutory dedication; and this

rule is not affected by the fact that the changed use

may be advantageous to the public. This can only be

done under the right of eminent domain.’ ”’

The Court at 67 NW2d 815 quoted with approval

language from a Massachusetts case to the effect that land

may not be appropriated without compensation to a public

use inconsistent with the use originally intended.

Baldwin Manor, supra, consists of 9 pages of dense

reading. Countless cases, nearly all of which are applicable

to the case at bar, are examined in depth.

Perhaps the most interesting case examination is at 67

NW2d 816, where the Michigan Supreme Court quotes a

Kentucky case at length and with approval. To adapt this

language to the case at bar, it is only necessary to insert the

word ‘‘state’’ in the phrase ‘‘public park’’ and to substitute

‘‘federal park’’ for the phrase ‘‘public library’’. Beyond

that, all that is required is to change the name of the donor

of the park, and that case becomes this case.

In Central Land Company v City of Grand Rapids,

supra, 302 Mich 105; 4 NW2d 485 (1942), one of the two

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somewhat earlier cases relied on by the courts below, the

Michigan Supreme Court indicated at 4 NW2d 486 that ‘‘the

factual background of the case must be borne in mind.”’

The case turned on two rather compelling facts, both of

which distinguish Central Land Company, supra, from

Baldwin Manor, supra, and the case at bar.

In the Central Land Company case a commercial

company conveyed land to the City of Grand Rapids in

exchange for various considerations which the court found

to be worth in excess of $400,000.00. A reverter clause in

the deed required the land to ‘‘be used solely for park,

highway, street or boulevard purposes.’’ All went well until

the City entered into a contract with a third party providing

for the drilling for oil on the land; grantor began an action

in ejectment.

In addition to emphasizing the consideration of

$400,000.00 the City had given for the land, the court found

the following facts at 4 NW2d 487:

‘‘Defendants have taken rather extraordinary care in

sO Operating the oil wells on the park property that

this activity does not materially impair the use of the

land for the purposes for which it was conveyed to

the city. No storage tanks are maintained on the

property, but instead they are somewhat distantly

located on ~ther property. The pipelines leading

from the wells to the storage tanks are for the most

part, if not wholly, laid underground in the park

area, excepting where such pipes extend along or

across the highway passing through the park. Only a

small, and not particularly unsightly or

objectionable, structure is maintained at the location

of each well. These buildings are not of a different

character than an ordinary tool house or comfort

station, such as are commonly maintained in park

areas ...QOne more rather important aspect of the

record is the testimony that oil production on these

premises probably will not continue for more than

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approximately two years; and the value of the total

estimated production will probably not exceed

one-twentieth of the amount expended by the

defendant city incident to improving the park

property and constructing roadways.”’

The court then held that the interference with the

purpose required by the reverter clause was insufficient to

constitute a breach of the condition subsequent.

It must be questioned whether this case has any

substantial degree of materiality to the case at bar, where

the land was donaicd, and where the condition subsequent

was admittedly breached.

Clark v City of Grand Rapids, supra, 334 Mich 646; 55

NW2d 137 (1952) is even more inapposite. In that case a

deed which granted land to the city contained numerous

conditions, one of which was the use of the land for park

and recreation purposes. The deed, however, contained no

reverter clause which appeared to apply to the condition

that the land must be used as a park, and the court held

that the lack of such a clause in the deed was fatal to the

claim in ejectment. The court held also that the degree of

neglect of the property present in that case was not

sufficient to constitute an abandonment.

It is hard to imagine how that case could bear on the

case at bar, other than as dicta.

It is respectfully submitted that the later case of Baldwin

Manor v City of Birmingham, supra, clearly represents the

applicable state law in this matter, and that the

misapplication of Michigan common law by the district

court and as affirmed by the Court of Appeals for the Sixth

Circuit brought a result contrary to the mandate of this

court in Evans v Abney, supra, as quoted on page 5 of this

Petition.

It is further submitted that this case would be a most

appropriate case for review by this Court, in order to

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further the compliance by lower courts with the mandates

of this Court.

CONCLUSION

For the reasons stated, Petitioners respectfully urge that

a writ of certiorari be issued to review the judgment and

opinion of the United States Court of Appeals for the Sixth

Circuit.

Respectfully submitted,

Robert F. Travis

BAuCKHAM, Reep, Lana,

SCHAEFER & Travis, P.C.

Business Address:

500 Park Building

Kalamazoo, Michigan 49007

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Order

No. 80-1303

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unrrep States oF AMERICA,

Plaintiff-Appellee,

Vv.

31.72 Acres or LAND, More or Less, Et At,

Defendants,

Auice Day Rouns, Marcaret Day Travis,

Marion Day Warnes, Davin H. Day III,

Susan S. Day, Ropert H. H. Day, NELuE

B. Day, HELEN G. Day, WituiaM PuiLups

as Executor of the Estate of Estelle

Day Phillips, and Eva Day Lesser,

Defendants-Appellants.

Before: MARTIN, Circuit Judge; PHILLIPS and CELE-

BREZZE, Senior Circuit Judges.

ORDER

(Filed: January 21, 1981)

The heirs of David H. Day, the first Michigan Director

of Parks, appeal the District Court finding that a possibility

of reverter did not ripen when the State of Michigan trans-

ferred jurisdiction of a state park to the United States for

continued use as a park.

The property was conveyed to the State of Michigan in

1920 by David H. Day and Eva H. Day. The deed con-

tained the provision that the land was ‘‘to be used for a

public state park, should the same be abandoned for that

purpose, it shall revert to the party of the first party,

their heirs and assigns.’’ The land was used by the State of

Michigan as a state park named after Mr. Day from 1920

until 1975.

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Order

In 1970 the United States Congress enacted the Sleeping

Bear Dunes National Lakeshore Act, 16 U.S.C. § 460, ef

seq., which directed the Secretary of the Interior to acquire

by donation those lands owned by the State of Michigan

within the boundaries of the area designated for inclusion in

the lakeshore. The subject property rested within those

boundaries. On May 1, 1975, the State of Michigan issued a

permit granting jurisdiction over the subject parkland to the

National Park Service to make use of the land as if a deed

had been delivered. The permit contained the express con-

dition that delivery of the deed is subject to the satisfactory

removal of the remainderman interest reserved by the Days

in the original deed. The term was for one year renewable

annually until a deed could be delivered. The United States

continues to operate the park as a public campground

charging fees to the public, retaining the park’s name in

honor of Mr. Day.

The District Court conducted exhaustive research to

grasp the historical context in which the grant was given.

This research revealed the word ‘‘state’’ was inserted in the

original deed because of Mr. Day’s connection with and

desire to help the fledging state park system of the time.

The court cited well-settled Michigan law that conditions

such as in the present case are strictly construed so as to

prevent forfeiture, see Clark v. City of Grand Rapids, 334

Mich. 646 (1952), and a court must find a real and substan-

tial violation of the condition embodied in the deed, Central

Land Co. v. City of Grand Rapids, 302 Mich. 105 (1942),

The Court concluded that the action here did not interfere

materially with the donor’s primary intent, to make a gift to

all the people of the State so they could enjoy and use the

property. We agree.

The decision of the District Court is affirmed.

ENTERED BY ORDER OF THE COURT

(s) John P. Hehman,

Clerk

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Opinion

UNITED STATES OF AMERICA

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Unrrep STATES OF AMERICA,

Plaintiff,

Vv. G77-282 C.A.

31.72 Acres or Lanp, more or less,

in Leelanau County, State of

Michigan; Auice Day Rouns, et al.,

and unknown owners,

Defendants.

OPINION

(Filed: April 7, 1980)

This condemnation action involves a 31.72 acre parcel

of land which the United States seeks to make a part of the

Sleeping Bear Dunes National Lakeshore. The central

question involves a possibility of reverter, which former

owners of the property placed in a deed to the property,

and whether this reverter ripened so as to vest the heirs of

these owners with fee title. Defendants argue that this has

occurred and that the government must compensate them

for the taking of the fee estate; the United States argues

otherwise. Both sides have stipulated to a set of facts and

filed motions for summary judgment so that this issue can

be resolved.

On November 20, 1920, David H. Day and Eva H. Day

conveyed the subject property by warranty deed to the

State of Michigan. The grant of land was made subject to

the following condition:

... to be used for a public state park, should the

same be abandoned for that purpose, it shall revert

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Opinion

to the party of the first part [David H. Day and Eva

H. Day], their heirs and assigns.

The land was held by the State of Michigan and was used

from 1920 to 1975 as the D. H. Day State Park.

On October 21, 1970, the United States Congress

enacted the Sleeping Bear Dunes National Lakeshore Act,

16 U.S.C. §§460x et seq. This Act, among other things,

directed the Secretary of the Interior to acquire by donation

‘those lands owned by the State of Michigan within the

boundaries of the area designated for inclusion in the

lakeshore. .. ."’ 16 U.S.C. §460x-1. This area included the

land deeded to the State of Michigan by David H. Day and

Eva H. Day.

From and after October 21, 1970, the Secretary began

acquiring land within the boundaries of the Lakeshore.

Much of the land was purchased from private owners, and

some lands were acquired by the filing of complaints in

condemnation. By Act No. 359 of the Public Acts of 1974,

M.C.L.A. §§3.901 et seq.; M.S.A. 13.766(1) et seq., the

Michigan Legislature authorized the Michigan Department

of Natural Resources to, among other things, convey to the

United States ‘‘by quit-claim deed or deeds the title to

lands as is vested in the state and under the jurisdiction of

the department of natural resources. . . which lie within

the boundaries of the lakeshore zone and the parkway

locations of the Sleeping Bear dunes national

lakeshore. .. .”’

Notwithstanding this state legislation, no deed for the

subject property was executed. Nevertheless, on April 1,

1975, the United States Department of Interior, by and

through its agents, servants, and employees, took

possession of the subject park land and has remained in

possession ever since. On or after that date, the park has

been manned by employees of the Department of Interior

and not State employees. Decisions relating to park

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management have been made by the United States and not

by the State of Michigan. Changes have also been made to

the park,’ although, the use of the park did not change.

Prior to April 1, 1975, the State of Michigan operated the

park as a public campground, charging fees to the public,

subsequent to April 1, 1975 and up to the present time, the

property has been used as a public campground, with fees

charged to members of the public.

On May 1, 1975 the State of Michigan through its

Department of Natural Resources, granted full and

exclusive jurisdiction over the the subject property to the

Sleeping Bear Dunes National Lakeshore. By this act the

State did not relinquish title to the property; it only

authorized the National Park Service to make such use of

the property as would have occurred if a deed could have

been delivered. The term of this grant was one year from

the date of April 1, 1975 and year-to-year thereafter until

terminated by the delivery of a deed. The permit

conditioned delivery of the deed on the satisfactory removal

of the remainderman interest which D. H. Day and Eva H.

Day reserved for themselves and their heirs in the 1920

deed.

'The changes made by the United States include the removal of a

sign at the entrance to the park which read,

ENTRANCE

D. H. DAY

STATE PARK

DEPARTMENT

NATURAL RESOURCES

and substitution of a sign which reads,

ENTRANCE

D. H. DAY

CAMPGROUND

SLEEPING BEAR DUNES NATIONAL LAKESHORE

UNITED STATES DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE

The Department of Interior has also removed various buildings, toilet

facilities, signs, and other fixtures within the park, and partially replaced

these with other arrangements. It has also retained all camping fees and

other profits earned since April 1, 1975.

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Opinion

After the United States went into possession, it began

the solicitation of quit-claim deeds from the heirs of D. H.

and Eva Day. Such deeds could not be voluntarily

obtained, and the present suit was commenced in June of

1977, with these heirs as defendants. They contend that the

State of Michigan's actions prior to this date resulted in the

abandonment of the subject property as a state park and

this triggered their possibility of reverter so that now they

possess the fee title for which they must be compensated if

it is to be condemned.

It is a general rule that in determining if a reverter has

occurred, changes in the use of the land which result from

the condemnation proceedings must be disregarded. The

Restatement of Property best states this rule:

If viewed from the time of the commencement of an

eminent domain proceeding and not taking into

account any changes in the use of the land sought to

be condemned which may result as a consequence of

such proceeding, the event upon which a possessory

estate in fee simple defeasible is to end is an event

the occurrence of which, within a reasonably short

period of time, is not probable then the damages for

a taking thereof by an eminent domain proceeding

are ascertained as though the estate were a

possessory estate in fee simple absolute and the

entire amount thereof is awarded. to the owner of the

estate in fee simple defeasible. Under these

circumstances the future interest has no

ascertainable value.

1 Restatement of Property, §53(b), p. 187 (1936). Other

authorities are to the same effect, namely that changes

occasioned by condemnation will not cause a possibility of

reverter to ripen unless other conditions, independent of the

condemnation, would have made the reversion imminent.

See, e.g., Midwestern Developments, Inc. v. City of Tulsa,

374 F.2d 683 (10th Cir. 1967); Terminal Coal Co. v. United

es

Bee |

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Opinion

States, 172 F.2d 113 (3rd Cir. 1949); Woodville v. United

States, 152 F.2d 735 (10th Cir. 1946); People of Puerto Rico

v. United States, 132 F.2d 220 (Ist Cir. 1942); United

States v. 16 Acres of Land, 47 F.Supp. 603 (D. Mass.

1942); United States v. 2,086 Acres of Land, 46 F.Supp.

411 (W.D. S.C. 1942); United States v. 2,184.81 Acres of

' Land, 45 F.Supp. 681 (W.D. Ark. 1942). Various reasons

have been advanced in support of this rule. 2 Nichols, The

Law of Eminent Domain, §§5.221 and 5.221[{1] (3rd ed.,

1976). One view holds that the condition upon which the

reverter is based has been made impossible to perform

by operation of law, so that compliance is excused and

no forfeiture results. Woodville v. United States, supra.

Another view is that ‘‘there is no interval of time between

the seizure of the rights of the grantor during which there

could be a reverter of title to the latter... .’’ 2 Nichols,

supra at 116. A third view is that, at the time of

condemnation, the possibility of reverter is not an interest

in land and thus is not compensable under the Constitution.

Woodville, supra.

The government relies on all these arguments,

contending that at the time it went into possession

defendants’ possibility of reverter had not ripened and

therefore it was terminated as a matter of law, or in the

alternative, that it was not compensable under the Fifth

Amendment. Defendants’ position is that this line of

authority does not apply in situations where the possibility

of reverter ripened before the initiation of condemnation

proceedings. They state that there was no legal compulsion

for the State to transfer the property and thus the

enactment of Public Act No. 359 and the subsequent

agreement of May 1, 1975, which transferred jurisdiction

over the property to the United States, where voluntary

acts which violated the condition in the deed, terminated

the State’s estate in fee simple defeasible, and vested title

in them.

8a

Opinion

In reviewing the authorities which support the

government's position, this court has found that all involve

situations where the condemnor had legal authority to seize

the property, and the property owner had no option but to

surrender it under threat of condemnation. None of these

situations involved instances where the property owner was

under no legal compulsion to surrender the property, but

went ahead and did so. This distinction is important.

Where property is threatened with imminent

condemnation, much of a landowner's conduct vis a vis the

condemnor is involuntary since it is motivated by the

knowledge that he soon will be divested of his estate. Thus,

where he enters into preliminary negotiations, or takes

other necessary steps to effectuate a transfer so that the

initiation of formal condemnation proceedings can be

avoided, he is in all likelihood only attempting to make his

transfer go as smoothly and predictably as possible so that

the cloud of uncertainty is removed and he can begin to

plan for the future. In these instances, this court does not

believe it would be fair or equitable to hold that such acts

could trigger a possibility of reverter, nor should a court

look to these acts in determining if the event upon which

the fee simple defeasible is to end is imminent. See,

Midwestern Developments, Inc. v. City of Tulsa, 374 F.2d

683 (10th Cir. 1967).

Where property is not threatened by condemnation,

then this court believes a different rule should apply. In

these instances, if the landowner can continue to comply

with the condition in the deed he should do so. If he

proceeds to take steps to transfer the property to a

condemning body, but does so under no legal compulsion,

then these steps could be sufficient to cause the possibility

of reverter to ripen. A court need only examine the

landowner’s conduct and determine if it violates the

condition in the deed.

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9a

Opinion

In analyzing the claims of the present parties, this court

begins with 16 U.S.C. §460x-7 which sets out the methods

by which the Secretary of Interior may acquire land within

the Lakeshore area. Section 460x-7(c) provides that ‘‘[a]ny

property, or interests therein, owned by the State of

Michigan or any political subdivision thereof, may be

acquired only by donation.’’ This means that the United

States could not initiate condemnation proceedings to take

any State-owned interest in the area of the Lakeshore.? It,

instead, had to hope that the State, through its own

largesse, would voluntarily come forward and surrender its

property. If the State refused to donate, the United States

would appear to have no recourse but to let it keep the

property.

This means that at no time did the subject property ever

face the threat of condemnation. If the State had wished, it

could have continued operating it as a park. This absence of

any legal compulsion to surrender the property means that

defendants have correctly characterized the enactment of

Public Act No. 359 and the agreement of May 1, 1975 as

voluntary acts on the part of the State to relinquish its

interest in the subject property. Consequently, this court

rejects the various arguments put forward by the United

States that its acquisition made the possibility of reverter

legally impossible to perform, or that its acquisition of the

fee left defendants with a non-compensable interest in the

property, or that there was no interval of time between the

acquisition of the grantee’s estate and the rights of the

grantor. As has just been noted, these arguments would be

sustainable if the property had been surrendered under

threat of eminent domain, but they have no merit where the

government acquired the property as a result of a voluntary

2In the instant proceeding, the government has only sought to

condemn the reversionary interest of the Days’ heirs. The State of

Michigan is not a party, and *‘Schedule B,"* attached to the complaint in

condemnation, states that the State's interest is not being condemned.

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10a

Opinion

transfer which was not motivated b, such a threat. Cf.,

Sherman v. Town of Jefferson, 113 NE. 624 (Ill. 1916).

It is thus necessary to determine if the State's actions

violated the condition which the Days placed in the deed.

The standard for this court's review has been correctly set

forth by the government in its brief.

It is well settled that conditions such as that in the

instant case are disfavored in Michigan and, therefore, are

strictly construed so as to prevent forfeiture. Clark v. City

of Grand Rapids, 334 Mich. 646, 654 (1952); Central Land

Co v. City of Grand Rapids, 302 Mich. 105, 112 (1942).

Before a forfeiture will be declared, a court must find a

‘‘real and substantial violation’’ of the condition embodied

in the deed. Central Land Co., supra, at 110, 113. In

determining if such a violation has occurred, ‘‘consideration

shout be given to the purpose obviously sought to be

accomplished by the condition....’ /d., at 110. A

violation will only be found if there has been a ‘‘substantial

degree’’ of interference with this purpose. /d., at 113.°

This test was applied in Central Land Co., supra, in

which a deed to the City of Grand Rapids contained the

following condition:

[to] be used solely for park, highway, street or

boulevard purposes; and if any part thereof be not

used for any such purposes, ... or at any time be

used for any other purpose, said part or parts shall

immediately revert to the grantor, its successors or

heirs. ...

Despite this unambiguous language, the Michigan

Supreme Court found no violation when the City allowed

> Baldwin Manor, Inc. v. City of Birmingham, 341 Mich. 423 (1954)

is not to the contrary, because the park was being converted into a road,

a use which could substantially interfere with the donor's intended

purpose.

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Opinion

oil drilling on the park land. Its decision was based on the

ground that this activity did not ‘‘materially impair the use

of the land for purposes for \hich it was conveyed to the

city."" Id., at 110.

In the instant case, defendants rest their arguments on

the express words of the deed, pointing out that a state

park is not the same as a national park because each is

controlled by a different entity, which is responsive to

different interests. The government states that the

difference between a state and national park is

insubstantial, for both serve the same purpose. It thus does

not believe that the grantors’ purpose would be frustrated

by having the management of the park shift to the United

States.

In cases such as this, where the grantor is dead and a

lapse of time may have caused others’ memories to fade,

it is sometimes difficult to ascertain the purpose which a

grantor sought to accomplish by inserting a condition in a

deed. Such is the case with the instant grant of property

from the Days to the State of Michigan. Believing that this

purpose might become clearer if the grant was studied in its

historical context, this court has undertaken an examination

of the history of the state park movement in the United

States, and particularly in Michigan.

Parks have not always been a part of this country's

heritage. During our first century, there was little need for

parks as man’s life was essentially tied to the out-of-doors

through hunting, ranching, and farming. In this second

century, however, people in increasing numbers have

traded the farm life for the city and have been separated

from that vitalizing contact with nature which had once

been so easy and implicit in the national life.

The need for preserves was felt—places which would

preserve the best of our natural environment before it was

destroyed by the encroachment of our cities and the needs

12a

Opinion

of industry, and which would also provide a place where

the public could retreat to renew its ties with nature. In

1857, Central Park was created in New York City. It was

not until 1872, however, that purely scenic treasures were

set aside. In that year, the Congress established Yel-

lowstone as the first national park in the world. Its success

led to the creation of more national parks, such as Sequoia,

Yosemite, and Mount Ranier.

During the 1880's and 1890's, several states began to

establish state parks to provide places of recreation for their

citizens and to preserve places that might otherwise be

destroyed. A fear that all the seashore, mountaintops and

river banks might soon be in private hands led the Mas-

sachusetts Legislature to begin acquiring valuable park

lands, and to encourage that gifts be made of lands held by

private persons.* In 1883, the State of New York created

the Niagara State Reservation and the Adirondack State

Reservation, then followed this with other parks in the

Catskill Mountains and at Watkins Glen and Stoney Point.°

During this same period, Minnesota began to acquire the

nucleus for its present state park system,® and in 1903 the

governor of Wisconsin appointed a three-member commis-

sion to study the State’s resources and determine what

should be acquired for parks.’

Michigan was another state which pioneered the de-

velopment of state parks. In 1895, the State acquired its

first state park when the federal government surrendered its

4**Parks and Recreation Facilities in the United States,’ Annals of

the American Academy, Vol. 35, at 221-222 (March 1910).

5 Id.; W. Nelson, *‘The Development of State Parks in America,”’

The Playground, Vol. 21, p. 630 (March 1928) [hereinafter Nelson).

* Nelson, p. 630.

7**Park and Recreation Facilities in the United States,’’ Annals of

the American Academy, Vol. 35, pp. 221-222 (March 1910).

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13a

Opinion

military reservation on Mackinac Island.* The Legislature

established the Mackinac Island State Park and a Board of

Commissioners was appointed to administer the park.? In

1909, the Legislature created Michilimackinac State Park,

incorporating the site formerly occupied as a military post

under the name of Fort Michilimackinac in the village of

Mackinac City, and placed it under the control of the Board

of Commissioners.'!° Both of these were on sites where rail

and steamship lines merged and this helped to attract vis-

itors.!!

Despite these early advances, the state park movement

had not yet taken hold, for in 1908 the number of states

possessing their own parks numbered less than a dozen. !

Growth was beginning to occur, in part caused by the

growing number of individuals with automobiles and an

improved system of roads.'? Those trapped in the city were

no longer confined to points along a rail or water line, but

could now venture out into remote areas. Since most had

limited time and money, most trips had to be limited in

distance, and this gave great impetus to the establishment

of regional parks.

In many states, including Michigan, this forced lawmak-

ers to realize that the outstanding features of their state had

to be protected or they might be lost to private hands or

® State Parks of Michigan—*'A report of the past—a look to the

future,"’ p. 15 (published by Michigan Department of Conservation, 1957)

{hereinafter referred to as State Parks of Michigan]; E. Petersen,

**Wildlife Conservation in Michigan,’ 44 Michigan History at p. 142 (June

1960).

® State Parks of Michigan, p. 15S.

10 Td,

"Td,

'2 Nelson, P. 631.

'3 State Parks of Michigan, p. 15; “‘At the Conventions,’ The

Playground, Vol. 17, p. 629 (March 1928).

FX

14a

Opinion

destroyed.'* In 1917, when the great pine forests of Michi-

gan were largely a memory, the Legislature authorized the

purchase of 200 acres of land near Interlochen to preserve a

stand of virgin pine that had escaped cutting, and placed it

under the supervision of the Public Domain Commission. !*

By 1918, the number of states with parks still numbered

less than twenty,'® but a vision of a great recreational

industry was taking form and the need for greater park

services was becoming recognized.'’ States were pressuring

the federal government to establish national parks within

their borders—many in areas that did not have national

significance.'® By 1921, there still were only 19 states with

parks, and 29 without, and of those possessing state parks,

six had only one.'? Sparked by the knowledge that the

nation’s resources needed to be preserved and that the

increasingly urbanized population needed areas for recrea-

tion, Stephen Tying Mather, Director of National Parks,

helped organize a meeting of conservationists in an attempt

to have states establish their own parks.?° A group of 200

met in January 1921 at De Moines, Iowa and ‘‘[f]rom that

January meeting emerged a movement toward the creation

of systems of recreation areas within the states which would

be comparable in purpose, in choice, in administration, and

in resultant benefits to what on the national scale was the

purpose and achievement of the National Park System.?'”

'4R, Dodge, ‘‘Michigan,"’ Parks and Recreation, p. 37 (December

1970).

'S State Parks of Michigan, p. 15.

'6 Nelson, p. 629.

'7F, Tilden, The State Parks-Their Meaning in American Life, p. 3

(Alfred A. Knopf, 1962) [hereinafter Tilden]; State Parks of Michigan, p.

15.

'8 Tilden, at pp. 4-5.

19 Jd., pp. 1, 5.

20 /d., pp. 3-9.

2! JId., p. 4.

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Opinion

Emphasis supplied.) The result was the creation of the

National Conference on State Parks. By 1926, the work of

these state park enthusiasts had had a cumulative effect for

the number of states with parks had grown to 35 and 8

other states were studying programs for parks.??

In Michigan during these post-war years, a similar

movement seems to have taken hold. The early parks were

serving their purposes well enough, but were limited to the

specific sites established.2? There was a need for a com-

prehensive statewide system and, in response, legislation

was enacted in 1919. By Act 218 of the Public Acts of 1919,

the Legislature created a Michigan State Park Commission

and defined its scope, authority and duties:

Sec. 4. Said commission shall have charge and

supervision of all lands acquired by the state as

public parks for the purposes of public recreation or

the preservation of natural beauty or historic associ-

ation, except such lands as may be placed by law in

the charge and under the supervision of other com-

missions or Officials... .

Sec. 5. Said Commission—shall be authorized to

take in the name of the state and for the benefit of

the public, by purchase, condemnation, gift or de-

vise, lands and rights in lands for public parks, ... .

Governor Albert Sleeper approved the bill on May 12,

1919 and appointed the first Michigan State Park Commis-

sion of 10 members on January 9, 1920.24 Among the

commissioners was Mr. David H. Day, who was named

22 Id.

23 R. Torrey, *‘State Park Survey," The Playground, Vol. 19, p. 621

(February 1926).

Thirty-three states had state parks and forests. Two others had parks

which were managed by city or metropolitan agencies but which were the

equivalent of state parks.

24 State Parks of Michigan, p. 15.

16a

Opinion

chairman of the Commission.25 That same year, Mr. Day

and his wife deeded the property now in question to the

State.2® This land became the first state park established by

the Commission.?” During the term of its two year tenure,

the Commission acquired some 22 other sites, 21 of which

were acquired by donation, and one, Interlochen State

Park, was transferred by the Public Domain Commission.?®

The concept of state parks in Michigan, as set forth in

Public Act 218, has been carried forward in subsequent

state park legislation.2? The fundamental purpose is still to

preserve property for recreation and for its natural beauty,

or historic association.

In examining this history, it is apparent that the state

park movement throughout the country, and in Michigan,

was prompted by a desire to preserve the precious exam-

ples of our country’s scenic, natural, and cultural heritage

so that present and future generations would always have

piaces for recreation and inspiration. This is best seen in

the specific language of Act 218, section 4, of the Public

Acts of 1919, which established the State Park Commission

to preserve lands for the public. This was significant and

novel legislation, and it could only succeed if the commis-

sioners, as individuals, were fully dedicated to the concept

that areas of the State must be preserved for their natural

beauty and for purposes of public recreation. That Mr. Day

was chosen chairman of this auspicious group of commis-

sioners, indicates that he was one of the most deeply

committed to preserving areas for public enjoyment. When

this is coupled with the fact that he donated the subject

property during his tenure as a commissioner, a capacity in

25 Jd.

26 Id.

27 Id.

28 Id.

29M.C.L.A. §§318.3-.8.

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17a

Opinion

which he was to acquire property ‘‘for the purposes of

public recreation or the preservation of natural beauty or

historic association... ,°’ it leads this court to conclude

that his primary purpose in donating it was to preserve a

beautiful piece of Lake Michigan’s shoreline so that

everyone would be able to experience the beauty with

which nature had endowed this area.

In analyzing the Days’ reasons for specifying that the

property be used as a “‘state’’ park, it is logical to assume

that they were, in part, motivated by a desire to bolster the

fledgling state park system which Mr. Day was to oversee.

The fact that their donation was the first also indicates that

they intended to set an example for others so that they

would act in a similar and unselfish way. It does not seem

to have been prompted by any distrust of the United States

or the National Park Service, particularly since section 5 of

Public Act No. 218 permitted the State Park Commission to

receive property from the United States to help it build its

park system.

It is this court’s opinion that while the Days wanted this

property used as a state park, this desire was secondary to

their primary purpose of making a gift to all the people of

the State so that they could enjoy and use the property. It

would be inconsistent with this intent, and with the general

spirit of Public Act No. 218, that the people of the State

should lose the property merely because there has been a

change of governmental management. Certainly most

donors are not so chauvinistic that they value the state who

manages the property above the public who benefits from

it. Generally, it is the public who comes first, and in the

absence of demonstrative evidence to the contrary, this

court will presume that the public’s benefit was uppermost

in the Days’ minds.

}

Using this property as a national park has not, at

present, materially or substantially interfered with the Days’

primary intent that the property be preserved as a park for

the public’s use and enjoyment. Minor changes have been

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18a

Opinion

made to existing facilities, but the property is still being

used as a public campground, just as it was when the state

operated it. In addition, the United States has continued to

name the campground after Mr. Day, thus preserving any

intention he may have had to have the property serve as a

memorial to himself.

Since there has been no significant impairment of the

grantors’ intended purpose, this court holds that defen-

dants’ possibility of reverter did not ripen when the State of

Michigan voluntarily transferred jurisdiction of the park to

the United States.

Dated: April 7th, 1980.

(s) Noel P. Fox,

Senior Judge

United States

District Court

Western District of

Michigan

I hereby certify that the foregoing is a true copy of

the original on file in this court and cause.

Gerald H. Liefer,

Clerk

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19a

District Court Order

ORDER

(Filed: April 7, 1980)

For the reasons stated in the attached opinion, this

court holds that defendants’ possibility of reverter did not

ripen when the State of Michigan voluntarily transferred

jurisdiction of the subject property to the United States.

Thus, these defendants do not possess the fee title to the

property and have no claim to the proceeds of condemna-

tion.

Defendants’ motion for partial summary judgment is

denied. Plaintiff's cross-motion for partial summary judg-

ment is granted.

IT IS SO ORDERED.

Dated: April 7, 1980.

(s) Noel P. Fox,

Senior Judge

United States District Court

Western District of Michigan

I hereby certify that the forego-

ing is a true copy of the original on

file in this court and cause.

Gerald H. Liefer,

Clerk