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10/04/83 JAMES M. POYNTER v. WAYNE JOHNSTON AND

October 4, 1983

JAMES M. POYNTER, SHIRLEY POYNTER, JAMES SANDERS, RITA SANDERS, ROBERT STEINMETZ, PATRICIA STEINMETZ, RANDALL MONTGOMERY, JOAN MONTGOMERY AND DONALD JOHNSON, PLAINTIFFS,
v.
WAYNE JOHNSTON AND DIANE JOHNSTON, HIS WIFE, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS-PETITIONERS, BENJAMIN GEORGE, RAY G. BROWN, ROBERT C. ORF, AS MEMBERS OF THE TOWN BOARD, AND TOWN OF ST. JOSEPH, THIRD-PARTY DEFENDANTS-RESPONDENTS



Review of a decision of the Court of Appeals. Reversing Steinmetz, J.

The opinion of the court was delivered by: Steinmetz

The principal issue in this case is whether there is a genuine issue of material fact regarding the issue of acceptance of the road as a public road which would preclude the granting of a motion for summary judgment. The trial court, the Honorable John G. Bartholomew, granted a motion for summary judgment brought by the town and its officers. The court of appeals affirmed. We find there is sufficient conflict of evidence to conclude that the trial court improperly granted the motion for summary judgment. We reverse.

The motion for summary judgment was brought by the third-party defendants asking for dismissal of the third-party complaint.

Plaintiffs *fn1 are purchasers of residential lots developed and sold by the defendants and third-party plaintiffs, Wayne and Diane Johnston. The Johnstons sold plaintiffs the residential lots with a temporary roadway easement to exist until the roadway was dedicated as a public road. The town board members and the Town of St. Joseph are third-party defendants pursuant to the third-party complaint of Johnstons.

On June 7, 1972, Wayne Johnston and other resident freeholders petitioned the town board to accept the roadway as a town road to be known as East Oaks Trail. The town board met on June 9, 1972, and temporarily approved accepting the road. As a condition of acceptance, the town board provided that Johnston should fix all wash-outs, seed slopes and maintain the road for one year. The town clerk's handwritten entry of the minutes of the June 9, 1972, town board is:

"Clerk read petition from Wayne Johnston on putting his new road on township road, thru property previous owned by Herman Dahlke. Road to be called East Oaks Trail. Board decided to temporary approve the road, providing Mr. Wayne Johnston fix all washouts, seed slopes and maintain for 1 year."

At the annual town meeting on April 5, 1973, there was further Discussion concerning East Oaks Trail and the matter of acceptance was put to a vote. The clerk's handwritten minutes of that meeting read as follows:

"Clerk read recommendation from Board of Audit. Discussion on Blacktopping roads before they are put on Township roads. Wayne Johnston asked if his application come under this or not. He had applied last fall, but Road was not finished. Chairman asked people how they feel on this matter. Discussion on floor from Ray Brown, Howard LaVenture, Dale Heckman, Boyd Brooks, Delbert Schroeder, Michael Wakeling and La Vern Anderson.

"Mr. Johnston stated he didn't care if road is blacktop or not, just so mailman and school bus can come in. Road is not yet completed.

"Chairman asked All in favor of taken over this Road, if Mr. Johnston brought up to Town specifications, to seed shoulders and fill the wash-outs. Raise of hands -- In favor -- 50. Nay's -- 20.

"Road will be put on Township Road, but will be left graveled for a few years."

The blacktopping requirement for town roads was not adopted by the town until the annual meeting of April 3, 1975. The appropriate portion of the clerk's minutes reads:

"Dale Heckman made a motion that all roads be graded, graveled and blacktopped before being taken over by the town. Clarence Severson seconded. Carried."

Subsequent meetings of the town board discussed the road as reflected in the clerk's minutes as follows:

Meeting of August 11, 1977:

"Private Road East Oaks -- Ben George said he and Bob Orf had looked at the road on Tuesday. To bring it up to town specs to be accepted as a town road it should be blacktopped; cut down the hill because the grade is too high; expand the cul de sac to 80 ft. radius and raise it on one side and widen the road in places.

"Discussion of what was discussed at annual meeting of April 1973, and later annual town meetings before private roads can be taken over by town. Wayne Johnson said he was not willing to blacktop the road but he would fix the cul de sac and put guard rails on the hill, and he did not want to widen the road thereby tearing out foliage.

"Mr. Davis, town treasurer, said he remembered a later annual town meeting at which the road was discussed and decided since Mr. Johnson had not done anything to bring the road up to specs it was too late to accept the town's offer to be the last road to be blacktopped and at this point blacktopping was too expensive to do now.

"Bob Orf read a section from the April 1975 annual meeting as follows: 'Dale Heckman made a motion that all roads be graded, graveled and blacktopped before being taken over by ...


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