# Petition — 31.72 Acres of Land, Executor of the Estate of Estelle Day Phillips, and Eva Day Leber v. United States of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1633%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 940 ## Text 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 es 7% I. II. . 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)? Le °. 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 ‘% ili 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 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. ’% lla 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). i | 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. -% 1Sa 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. -% 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 E 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 -% 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1633%3A1. Public record. Not legal advice.