author: D. E. Holbrook, J.

text:
    DOE v TOWNSHIP OF OCEOLA
    Docket Nos. 77-2454, 77-2455.
    Submitted May 2, 1978, at Lansing.
    Decided July 6, 1978.
    A large sum of money was discovered buried in an undeveloped area of Oceola Township, Livingston County. The finder turned the property over to the state police and it was subsequently turned over to the State Treasurer to hold. The finder, under the name John Doe, sought a declaratory judgment to determine the rights of any parties in and to the property, and requesting it to be declared common law treasure trove or, in the alternative, lost goods. Oceola Township and the Director of the State Police were named as defendants. The Attorney General intervened as a defendant, and also filed a cross-complaint contending that the code of escheats controlled the disposition of the property. The township also filed a cross-complaint claiming an interest in the property. Thomas D. Powell, the owner of the land on which the property was found, filed a cross-complaint against the other parties alleging ownership of the property found. The Livingston Circuit Court, Paul R. Mahinske, J., entered a summary judgment in favor of plaintiff John Doe and Oceola Township under the lost goods act. Both the Attorney General and Powell appeal. Held:

    1. Summary judgment was inappropriate because the rights to the property depend primarily upon the weight and credibility which is assigned to the testimony of the landowner, Powell, who has claimed that the money in fact belongs to him. The determination of ownership, therefore, is an issue of fact which has not yet been determined.
    2. Because ownership of the property has not yet been determined and the court cannot say as a matter of law that the property is not subject to escheat, the court’s finding that the Attorney General did not have standing was error.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment § 36.
    [2, 3] 27 Am Jur 2d, Escheat §§ 32, 46.

      1. Judgment — Summary Judgment — Genuine Issue of Material Fact — Credibility of Witness — Court Rules.
    Summary judgment is not appropriate in a case where a determination of the respective rights of the parties rests primarily upon the weight and credibility which the trial court assigns to the testimony of an affiant or witness whose deposition has been taken; in such circumstances a genuine issue of material fact exists (GCR 1963, 117.2[3]).
    2. Escheat — Attorney General — Standing—Statutes.
    The Attorney General has the power to intervene in a case where property is subject to escheat due to failure of title for one of several enumerated reasons; therefore, in a case where the ownership of a sum of money found buried is a question of fact to be determined the Attorney General has standing to represent the state (MCL 567.14; MSA 26.1053[4]).
    3. Escheat — Attorney General — Standing—Burden of Proof.
    The Attorney General has standing to participate on behalf of the state where ownership of property is disputed and the court cannot say as a matter of law that the property is not subject to escheat, although the state carries the burden of establishing its right to escheatable property.

      Draugelis, AshtQn & Scully (by Richard T. Haynes), for plaintiff.

      Carl J. Schoemer and Foster, Swift, Collins & Coey, P. C, for Oceola Township.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Bernard Rosner, Assistant Attorney General, for the Director of State Police and the Attorney General.

      Downs & Pirich, and Moon, McGivney & Reeds, for Thomas D. Powell.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   D. E. Holbrook, J.

On October 8, 1974, at approximately 10:30 a.m., plaintiff John Doe embarked upon a hunting expedition over certain undeveloped lands in Oceola Township. Plaintiff admitted that he had no permission to enter this land, but also noted that the owner had not posted it with "No Trespassing” signs. During the course of his expedition, the plaintiff came upon an area where branches and leaves had been placed over a freshly dug hole; beneath this debris plaintiff uncovered a rather large metal suitcase.

Plaintiff returned home with his "game”, and after a single half-hearted attempt to open it he left it in his garage and retired into his home to other pursuits. Later the same day, plaintiff informed the state police of his most recent acquisition and an officer was dispatched to investigate. Together, plaintiff and the state police officer pried open one corner of the suitcase sufficiently far to determine that it contained a substantial amount of paper currency.

The state police then took qustody of the suitcase and its contents, and by order of the Livingston County Circuit Court it was turned over to the Treasurer of the State of Michigan to hold pending determination of any claims which might arise regarding it. On November 27, 1974, plaintiff John Doe filed a complaint in Livingston County Circuit Court seeking a declaratory judgment pursuant to GCR 1963, 521, adjudicating the respective rights of any parties in and to the discovered materials, and praying that these materials be determined to be common law treasure trove, or, in the alternative, lost goods under MCL 434.1, et seq.; MSA 18.701, et seq., the lost goods and stray beasts act, hereinafter called the lost goods act.

Under the former doctrine, plaintiff’s rights to the money would be superior to those of anyone except the rightful owner. Under the latter statute, plaintiff would be required to remit one-half of the value of the property to the government of the township in which the property was found if it remained unclaimed following the statutory period.

Defendant Attorney General intervened and filed an answer to the plaintiffs complaint, and also filed a cross-complaint contending that the code of escheats, MCL 567.11, et seq.; MSA 26.1053(1), et seq. effectively repealed the lost goods act and is therefore controlling. Defendant township filed an answer to each of these complaints and in addition filed a cross-complaint claiming an interest in the property under the lost goods act.

John Doe, defendant, the owner of the property upon which the suitcase was found, also entered an appearance by his attorney and filed a cross-complaint alleging ownership of the property. He moved for accelerated judgment and identified himself as Thomas D. Powell. He relied on his ownership of the land and alleged ability to identify and describe both money and suitcase. On January 22, 1975, this motion was denied.

On February 14, 1975, Powell was deposed. He testified as to the general description of the suitcase and contents. While the suitcase contained $383,840, Powell testified that it contained $338,-000 and that he could not be off by more than $1,000, Powell’s entire description of the suitcase and contents indicated substantial knowledge of the property, however, it was inaccurate in so many more-or-less minor details that its firsthand nature was called into question. Powell repeatedly refused to answer any questions as to the source of the money. He did claim that a friend named Glen Kavlish could verify his ownership of the money, however, Kavlish was unavailable to testify as he could not leave his two ill parents in Florida. Powell also testified that his property was not enclosed by a fence and that there were no "No Hunting” or "No Trespassing” signs posted on the property.

The Attorney General and Powell each moved for summary judgment. On May 23, 1977, the trial court entered summary judgment for plaintiff John Doe and Oceola Township under the lost goods act. The court found that Powell had not established ownership or a right to possession of the property. He found that the code of escheats did not apply to the facts, that it did not repeal the lost goods act, and that the Attorney General did not have standing to raise it in the instant case. The court also ruled that the property was not "treasure-trove” at common law, as it had not been abandoned for the requisite time period. From entry of summary judgment for plaintiff John Doe and the township, the Attorney General and Powell appeal by right.

GCR 1963, 117 specifically provides for rendition of summary judgment where there exists "no genuine issue as to any material fact”, GCR 1963, 117.2(3). This rule was adopted in Michigan, and other similar rules were adopted in other jurisdictions, in an éffort to reduce the expense and delay of litigation where, for one of the enumerated reasons, a full trial on the merits is not required. Nevertheless, "in deciding whether the case is appropriate for summary judgment, the court must be strictly sure that it is not required to pass summarily upon any genuinely disputed issue of fact. In this sense, this rule is strictly construed.” African Methodist Episcopal Church v Shoulders, 31 Mich App 290, 293; 187 NW2d 536 (1971), citing 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 359. The frequently cited concurring opinion of Mr. Justice Souris in Durant v Stahlin, 375 Mich 628, 655; 135 NW2d 392 (1965), adopted the following admonition against the intemperate use of the summary judgment procedure:

"We take this occasion to suggest that trial judges should exercise great care in granting motions for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to the facts, and a denial of that right is reviewable; but refusal to grant a summary judgment is not reviewable. Such a judgment, wisely used, is a praiseworthy time-saving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established. Denial of a trial on disputed facts is worse than delay. * * * The district courts would do well to note that time has often been lost by reversals of summary judgments improperly' entered.” Doehler Metal Furniture Co v United States, 149 F2d 130, 135 (CA 2, 1945).

In the instant case, final determination of the respective rights of each of the parties to the property discovered by plaintiff John Doe rests primarily upon both the weight and the credibility which the trial court assigns to the testimony of defendant Powell. Regardless of which legal theory the court chooses to apply to the facts of this case, if defendant Powell’s assertion of ownership were accepted by the trier of fact, he would prevail. Section 7 (MCL 434.7; MSA 18.707) of the lost goods act provides that restitution must be made to the "owner or person entitled to the possession” if timely demand is made. Similarly, the code of escheats, MCL 567.11, et seq.; MSA 26.1053(1), et seq. would clearly be inapplicable to the instant case if defendant Powell’s testimony were adopted by the trier of fact. In addition, according to the weight of authority brought to this Court’s attention, Black’s Law Dictionary (4th ed), p 1673, correctly states the common law definition of treasure-trove as: "Money or coin, gold, silver, plate or bullion found hidden in the earth or other private place, the owner thereof being unknown. ” (Emphasis added.)

Should the trier of fact choose not to accept any part of Powell’s testimony, it is clear that one or more of the other claimants might prevail on their several claims. Therefore, the weight and credibility to be assigned defendant Powell’s testimony is a material factor in the instant dispute. "The courts are liberal in finding that a 'genuine issue’ does indeed exist” under these circumstances, Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), and authority for the proposition that summary judgment will not lie where material issues of fact are at issue is voluminous. See Bilicki v WT Grant Co, 382 Mich 319, 326; 170 NW2d 30 (1969), and cases cited therein. In Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973), the Supreme Court held that where the credibility of a movant is challenged, a "genuine issue” for determination by the trier of fact is created.

The language of the Court in Arber v Stahlin, 382 Mich 300, 308; 170 NW2d 45 (1969), seems particularly apposite to the case at hand: "As we have repeatedly emphasized, summary judgment is not available whenever a presented issue of material fact turns upon the credibility of an affiant or witness whose deposition has been taken.” See also opinion of Mr. Justice Souris in Durant v Stahlin, supra.

As the disputed fact of defendant Powell’s ownership of the property discovered by plaintiff John Doe has such important ramifications upon the legal rights of the parties, we find it appropriate that this matter be returned to the trial court in order that the weight and credibility to be given his testimony may be determined in a trial on the merits. Should any part of his testimony be disbelieved, the court will be forced to make other determinations of fact, bearing especially upon the intent of the original "owner”, which also should be made following a full trial.

The code of escheats, MCL 567.11, et seq.; MSA 26.1053(1), et seq., gives the Attorney General power to intervene where property is subject to escheat due to failure of title to the property for one of the following reasons, MCL 567.14; MSA 26.1053(4): 1) death of the owner intestate with no known heirs; 2) owner’s disappearance or absence from last known place of residence for a continuous period of seven years leaving no known heirs; and, 3) owner’s abandonment of the property. Since ownership of the subject property is a question of fact which has not yet been determined, as a matter of law, the Attorney General’s standing to represent the state may not be denied. Although the state carries the burden of establishing its right to escheatable property, 30A CJS, Es-cheat, § 16(a), p 946, where ownership of the subject property is disputed and the court cannot say as a matter of law that the property is not subject to escheat, the Attorney General has standing to participate on behalf of the state.

Reversed and remanded for trial on the merits. Costs to await final determination.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    MAGID v OAK PARK RACQUET CLUB ASSOCIATES, LTD.
    Docket No. 77-2556.
    Submitted March 9, 1978, at Detroit.
    Decided July 6, 1978.
    Leave to appeal applied for.
    Martin K. Magid and Barry Soble, individually and on behalf of all males similarly situated, filed a complaint against Oak Park Racquet Club Associates, Ltd., and other tennis clubs in the Oakland County area and against the Michigan Indoor Tennis Association. The plaintiffs contended that by charging women a lower annual membership fee than they charge men, defendants are violating a Michigan statute guaranteeing the full and equal accommodations, advantages, facilities and privileges of places of public recreation to all persons, at uniform prices. In response to the four-count complaint, defendants filed an "Omnibus Motion to Dismiss”, alleging that plaintiffs had failed to state a cause of action under any of the four counts and further contended that a class action was inappropriate. Summary judgment for defendants was entered on all four counts, with a ruling that plaintiffs could not maintain the action as a class action, Oakland Circuit Court, William J. Beer, J. Plaintiffs appeal. Held:

    1. Summary judgment was appropriate on count I, which was under § 146 of the equal accommodations act, because the plaintiffs did not allege a withholding, refusal or denial of accommodations as is necessary to maintain a civil action for damages under § 146.
    2. Summary judgment on count II, in which the plaintiffs alleged that defendants had circulated communications to the effect that plaintiffs would be refused, unwelcome and/or not desired or solicited, was inappropriate because the equal accommodations act expressly authorizes such a claim.
    3. Count III which alleged that the defendants were unjustly enriched by the illegal contracts was properly dismissed because the contracts were not illegal.
    4. The trial court did not err in holding that count IV failed to state a cause of action. That count contained an allegation of conspiracy, which is not actionable without an allegation of a civil wrong resulting in damage caused by the defendants.

      References for Points in Headnotes
    [1-3] 15 Am Jur 2d, Civil Rights § 51.
    [4] 15 Am Jur 2d, Civil Rights § 261.
    [5, 6] 59 Am Jur 2d, Parties § 47 et seq.

      5. The trial court’s ruling that the plaintiffs could not maintain the action as a class action was based on "findings” by the trial court which were not supported by facts of record. The only finding in which there appears to be merit is that concerning the defendant class. This issue should be addressed on remand.
    Affirmed as to counts I, III and IV and reversed as to count II and remanded for further proceedings.
    1. Civil Rights — Equal Accommodations Act — Cause of Action— Statutes.
    A plaintiff, in order to maintain a civil cause of action under the equal accommodations act, must at least allege a withholding, refusal or denial of public accommodations or illegal advertising (MCL 750.146 et seq.; MSA 28.343 et seq.).

    2. Civil Rights — Equal Accommodations Act — Statutes—Penal Statutes — Strict Construction.
    The equal accommodations act is a penal statute and therefore must be strictly construed (MCL 750.146 et seq.; MSA 28.343 et seq.).

    3. Civil Rights — Equal Accommodations Act — Summary Judgment —Statutes.
    Summary judgment in favor of a defendant, based on plaintiffs’ failure to state a claim, on a count alleging that the defendants had circulated communications to the effect that plaintiffs would be "refused, unwelcome and/or not desired or solicited”, was improper in an action under the equal accommodations act because such a cause of action is expressly authorized by statute (MCL 750.147; MSA 28.344).
    4. Conspiracy — Allegations—Actionability.
    An allegation of conspiracy, standing alone, is not actionable; a civil wrong resulting in damage caused by the defendants must be alleged.
    5. Action — Class Action — Requirements—Court Rules.
    There are five requirements for maintaining a class action: (1) numerous persons, (2) adequate representation, (3) common questions of fact or law affecting the rights of the several members, (4) common relief requested by the class, and (5) a class action is superior and/or manageable (GCR 1963, 208).
    6. Action — Class Action — Defendants—Individual Action.
    Plaintiffs may not sue in a class action a defendant whom they could not individually sue.

      Gary A. Colbert and Barry A. Seifman, for plaintiffs.

      Dickinson, Wright, McKean, Cudlip & Moon (by John C. O’Meara and Robert P. Ufer), for defendants.
    Before: R. B. Burns, P. J., and Bronson and D. F. Walsh, JJ.
   Bronson, J.

On August 22, 1975, plaintiffs filed a complaint against defendants, tennis clubs in the Oakland County area and the Michigan Indoor Tennis Association. It is plaintiffs’ contention that by charging women a lower annual membership fee than they charge men, defendants are violating a Michigan statute guaranteeing the full and equal accommodations, advantages, facilities and privileges of places of public recreation to all persons, at uniform prices. Plaintiffs brought the suit on behalf of themselves and all male persons who have paid defendants’ membership fees which exceeded those paid by females. The four counts were based on: 1) MCL 750.146; MSA 28.343; 2) MCL 750.147; MSA 28.344, based on communications circulated by defendant; 3) unjust enrichment of defendants by virtue of accepting money under contracts illegal under the statutes; and 4) defendants’ conspiracy to establish discriminatory membership fees so as to restrain trade.

In response, defendants filed an "Omnibus Motion to Dismiss”, alleging that plaintiffs had failed to state a cause of action under any of the four counts and also contending that a class action was inappropriate.

The trial court granted summary judgment on all four counts for defendants and also ruled that plaintiffs could not maintain the action as a class action. Plaintiffs appeal of right. We affirm in part, reverse in part, and remand for further proceedings.

Count I

In Count I, plaintiffs sought damages under MCL 750.146; MSA 28.343, which provides:

"All persons within the jurisdiction of this state shall be entitled to full and equal accommodations, advantages, facilities and privileges of inns, hotels, motels, government housing, restaurants, eating houses, barber shops, billiard parlors, stores, public conveyances on land and water, theatres, motion picture houses, public educational institutions, in elevators, on escalators, in all methods of air transportation and all other places of public accommodation, amusement, and recreation, subject only to the conditions and limitations established by law and applicable alike to all citizens and to all citizens alike, with uniform prices. Rooming facilities at educational, religious, charitable or nonprofit institutions or organizations, and restrooms and locker room facilities in places of public accommodation may be separated according to sex.” (Emphasis added.)

Defendants argue that § 146 cannot be considered in isolation from § 147, which provides:

"Any person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place who shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities and privileges thereof or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communications, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such places shall be refused, withheld from or denied to any person on account of race, color, religion, national origin, sex or blindness or that any particular race, color, religion, national origin, sex or blindness is not welcome, objectionable or not acceptable, not desired or solicited, shall for every such offense be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 or imprisoned for not less than 15 days or both such fine and imprisonment in the discretion of the court; and every person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, and who violates any of the provisions of this section, shall be liable to the injured party, in treble damages sustained, to be recovered in a civil action: Provided, however, That any right of action under this section shall be unassignable. In the event that any person violating this section is operating by virtue of a license issued by the state, or any municipal authority, the court, in addition to the penalty prescribed above, may suspend or revoke such license.” (Emphasis added.)

Defendants correctly point out that plaintiffs have not alleged a refusal or denial of accommodations in Count I. Relying on Riegler v Holiday Skating Rink, Inc, 393 Mich 607; 227 NW2d 759 (1975), defendants conclude that Count I, based solely on § 146, fails to state a cause of action.

In Riegler, plaintiff, a male with long hair, sought to enjoin the defendant from excluding males from its premises because of the length of their hair. He relied on § 146, which, he contended, guaranteed equal accommodations to "all persons”. The Supreme Court held that § 146 had to be read in conjunction with §§ 147 and 148, which at the time of that case proscribed discrimination based on "race, creed or color”:

"We agree with the trial and appeals courts that the three sections should be read together and that so read § 146 was qualified by the limiting language of §§ 147 and 148 restricting the scope of the prohibition to denials of equal accommodations based on race, creed or color.
"We conclude, based on the history of this legislation, the language of the statute, and earlier expressions of this Court, that the nature of the right secured by § 146 cannot be defined without reference to §§ 147 and 148.” Id, at 611, 613-614.

Applying Riegler to the case at bar, we hold that § 147 qualifies the broad language of § 146 for purposes of a civil cause of action. To maintain a civil action for damages, a plaintiff must at least allege a "withholding, refusal or denial” of public accommodations or illegal advertising.

There are two additional reasons for so holding. First, the sentence of § 147 authorizing civil actions expressly states that such an action can be based only on violations "of the provisions of this section”. (Emphasis added.) The Legislature did not, as it could have, provide a civil action for violations of § 146. Rather, the civil action authorized is limited to violations of § 147. As stated above, plaintiffs did not allege a violation of § 147 in Count I.

Second, this being a penal statute, it is to be strictly construed. See, e.g., Club Holding Co v Flint Citizens Loan & Investment Co, 272 Mich 66; 261 NW 133 (1935).

As plaintiffs did not allege a withholding, refusal or denial of accommodations in Count I, summary judgment for failure to state a cause of action was proper.

Count II

Plaintiffs’ Count II alleged that defendants had circulated communications to the effect that plaintiffs would be refused, unwelcome and/or not desired or solicited, in violation of § 147.

Plaintiffs had requested descriptions or copies of defendants’ advertising materials through interrogatories. Defendants refused to respond, stating that the request was too vague.

Summary judgment on Count II for failure to state a claim was improper; § 147 expressly authorized the claim embodied in Count II. The real question is the existence of an issue of fact whether defendants advertised that plaintiffs would be refused and/or were unwelcome or unsolicited. This was not addressed by the trial court and must be decided on remand. Plaintiffs’ argument on appeal concerning their motion for an order to answer interrogatories is more properly directed to the trial court on remand.

Count III

As we held above, plaintiffs’ membership contracts were not illegal as alleged in Count I. Therefore, there could be no unjust enrichment of defendants from allegedly illegal contracts. Count III was properly dismissed.

Count IV

In Count IV, plaintiffs attempted to set forth a cause of action based on an alleged conspiracy:

"16. That the defendants have individually and jointly through defendant Michigan Indoor Tennis Association and its President, coverly and overtly conspired, planned, schemed, designed and aided and abetted in the establishment of a range of membership fees the effect of which is to discriminate monetarily against Plaintiffs in restraint of trade.”

An allegation of conspiracy, standing alone, is not actionable. Roche v Blair, 305 Mich 608; 9 NW2d 861 (1943); 16 Am Jur 2d, Conspiracy, § 44, at 150. Plaintiffs must allege a civil wrong resulting in damage caused by the defendants. Id. As stated above, any "monetary discrimination” against plaintiffs is not actionable. Therefore, the trial court did not err in holding that Count IV failed to state a cause of action.

Maintenance of Class Action

The trial court held that a class action was inappropriate in this case, finding that: (1) plaintiffs’ interests are not coextensive with the interests of the class, (2) their interests "may” be in serious conflict with the interests of the class, (3) as to 9 of the 11 tennis clubs, there is a total absence of common issues of fact or law, and (4) common questions of law or fact do not predominate over individual questions as to the two clubs of which plaintiffs were members.

In Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976), this Court identified five requirements for maintaining a class action under GCR 1963, 208. They are: 1) numerous persons, 2) adequate representation, 3) common questions of fact or law affecting the rights of the several members, 4) common relief requested by the class, and 5) a class action is superior and/or manageable. From our review of the record in this case, we find that plaintiffs have satisfied all five requirements. There are numerous persons affected; plaintiffs seek to represent all male members of defendant clubs. The effect of nonuniform membership fees is the common question of law, and recovery of fees paid by males is the common relief requested. The common question of law predominates over individual issues. Plaintiffs also appear to be adequate representatives. They expressed a willingness to vigorously pursue their claim and pay for notice to the class members. Their interests are typical of the rest of the class. While there is some indication of a prior business relationship of plaintiff Magid to one of the attorneys, it is not such as necessarily indicates inadequate representation. Cf. Grigg v Michigan National Bank, supra. Also, there is no record evidence of a prior relationship between plaintiff Soble and his counsel.

We hold that the trial court’s "findings” as to the propriety of plaintiffs’ class action were clearly erroneous. They were not supported by facts of record.

The only finding in which there appears to be merit is that concerning the defendant class. Plaintiffs testified in deposition that they were members of 2 of the 11 defendant tennis clubs. However; Mr. Magid’s membership at Square Lake Racquet Club apparently also included membership at at least two other clubs. This issue is important, because plaintiffs may not sue in a class action a defendant whom they could not individually sue. Stutelberg v Practical Management Co, 70 Mich App 325; 245 NW2d 737 (1976). We believe the best disposition is for the trial court to address this issue on remand, after plaintiffs have had an opportunity to discover any relationships between defendants.

Affirmed as to Counts I, III, and IV, reversed as to Count II and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full.

       MCL 750.147; MSA 28.344.
      The legislative history of this statute is not illuminating. The forerunner of the present statute was enacted in 1885. Section 1 of that statute guaranteed full and equal accommodations to all persons. Section 2 provided that a denial of the rights secured by § 1 on the basis of race was a misdemeanor. See Riegler v Holiday Skating Rink, Inc, 393 Mich 607; 227 NW2d 759 (1975). The statute originally was aimed at preventing the propagation of "separate but equal” public facilities. See Ferguson v Gies, 82 Mich 358; 46 NW 718 (1890). It merely restated the common law. Ferguson v Gies, supra. An implied civil cause of action based on the statute was recognized in Ferguson and later added to the statute expressly by 1937 PA 117.
      The phrase "with uniform prices” was added to § 146 in 1952. 1972 PA 116 expanded the statutory prohibition to include discrimination based on sex, national origin and blindness.

       MCL 750.148; MSA 28.345, which provides:
      "No citizen of the state of Michigan, possessing all other qualifications which are or may be prescribed by law, shall be disqualified to serve as grand or petit juror in any court of said state on account of race, creed or color, and any officer or other person charged with any duty in the drawing, summoning, and selection of persons who shall exclude from, fail, neglect and/or refuse, by words, trick and/or artifice, to draw the name of, summon and/or select any citizen for jury service because of his or her race, creed and/or color, shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty [50] dollars or shall be imprisoned for a period of not less than thirty [30] days, or both such fine and imprisonment in the discretion of. the court.”

       We assume without deciding that defendant tennis clubs are places of public accommodation within the meaning of §§ 146 and 147, an issue not raised by the parties below or on appeal.

         But see Oakwood Homeowners Ass’n, Inc v Ford Motor Co, 77 Mich App 197; 258 NW2d 475 (1977) (opinion by D. C. Riley, J.).
      We need not decide whether the Federal predominance requirement should be read into GCR 1963, 208. Assuming that predominance is a requirement, we find that it is satisfied in the case at bar.

        See note 4, supra.

       Mr. Magid, who is an attorney, and Mr. Colbert, one of plaintiffs’ attorneys, apparently shared office space, but did not practice in a partnership or association.

        Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976), expressed some confusion over whether the standard on review should be "clearly erroneous” or "abuse of discretion”. Under either standard, we hold that the trial court must be reversed.


author: M. J. Kelly, P. J.

text:
    KRAJEWSKI v KLAWON LILES v KLAWON
    Docket Nos. 77-2867, 77-2868.
    Submitted April 4, 1978, at Detroit
    Decided July 6, 1978.
    Gerald F. Lindeborg was retained by John W. Krajewski, Tony S. Krajewski, Richard D. Liles and Frances L. Liles as their legal representative to bring claims against Mark R. Klawon and Victor Campbell for personal injuries which were sustained in an automobile accident. Clarence Constan was substituted as attorney for the plaintiffs in place of Gerald Lindeborg prior to the filing of the complaints in the actions and an agreement between the attorneys was signed concerning the payment of fees to Lindeborg for the legal work on the claims which had been done by him to that time. Complaints were filed and the action was submitted to a mediation panel which' awarded plaintiffs $45,000. All parties accepted the mediation award. Gerald Lindeborg filed a notice of lien against the settlement award claiming his fee under the agreement was unpaid. Clárence Constan filed a motion for entry of judgment in accord . with the mediation panel recommendations arguing that Lindeborg’s fee, if any, should be determined by quantum meruit rather than by the agreement. The Washtenaw Circuit Court, Patrick J. Conklin, J., awarded Lindeborg the fees which were set forth in the agreement and entered an order implementing the mediation award. Plaintiffs appeal the portion of the award granting attorney fees under the agreement to Gerald Lindeborg. Held:

    An attorney claiming a lien for unpaid fees against a proposed judgment who has neither appeared of record nor intervened as a party in the principal litigation should file a written application for intervention supported by pleadings setting forth the claim for which intervention is sought; however, where such a claim is improperly brought and the party against whom the lien is asserted represents to the trial court that it has jurisdiction to decide the issue, that procedural impropriety, which could have been cured if properly objected to, is waived and the trial court’s resolution of the issue will be upheld on appeal absent clear error.

      References for Points in Headnotes
    [1] 7 Am Jur 2d, Attorneys at Law §§ 272-301.
    [2] 7 Am Jur 2d, Attorneys at Law § 260.

      Affirmed.
    1. Attorney and Client — Judgment Liens — Fees—Procedure— Waiver — Court Rules.
    An attorney who has neither appeared of record nor intervened as a party in the principal litigation and who claims a lien for unpaid fees against a proposed judgment should file a written application for intervention supported by pleadings setting forth the claim for which intervention is sought; however, where such a claim is improperly brought and the party against whom the lien is asserted represents to the trial court that it has jurisdiction to decide the issue, the procedural impropriety, which could have been quickly cured if properly objected to, is waived "and the trial court’s resolution of the issue will be upheld on appeal absent clear error (GCR 1963, 209.3).
    2. Attorney and Client — Fees—Disputes Between Attorneys — Arbitration — State Bar — Disciplinary Rules.
    The most expeditious method of resolving fee disputes between attorneys is by arbitration through the State Bar of Michigan; all that is required is the stipulation of the attorneys that the dispute be submitted to arbitration and that the committee make a decision which is certifiable as a judgment in the circuit court (DR 2-107).

      William G. Wolfram, for plaintiffs.

      Gerald F. Lindeborg, in propria persona.

    Before: M. J. Kelly, P. J., and D. E. Holbrook, Jr. and Beasley, JJ.
   M. J. Kelly, P. J.

This is a dispute between two attorneys competing for fees for services rendered to plaintiffs arising out of claims for personal injuries sustained in an automobile accident. The date of the accident was June 15, 1973, and plaintiffs originally retained attorney Gerald F. Lindeborg to represent them. He apparently did so until November of 1974, at which time he was discharged and replaced by attorney Clarence Constan. Suit had not been filed by Mr. Lindeborg but negotiations had been conducted, medical information obtained and some investigation pursued, the extent of which is disputed.

On November 1, 1974, the successor attorney, Constan, filed personal injury suits in the Washtenaw County Circuit Court on plaintiffs’ behalf. Shortly thereafter the two attorneys met, amicably this time, and during or following the meeting, Lindeborg’s files were turned over to Constan in exchange for an agreement prepared by Constan and executed by both, which is reproduced as follows:

"It is Agreed between Clarence R. Constan, Esq. and Gerald Lindeborg, Esq. that Gerald Lindeborg, Esq. shall receive one-half of any fees earned and collected in the Krajewski and Liles cases, if the cases are not tried and one-third of the fee earned and collected if trial is commenced and that [sic] will cooperate and assist when called upon in the handling of depositions. That the fees shall be in full settlement of his claim for fees.
February 4, 1975[s] Gerald Lindeborg[s] Clarence R. Constan.”

In due course the lawsuits were submitted to a mediation panel which evaluated the claims on or about December 15, 1976, to be in the amount of $45,000. All parties accepted the mediation award. Disharmony ensued.

On December 20, 1976, Lindeborg filed a notice claiming a lien against any settlement or judgment received by plaintiffs, but he did not file a motion to intervene under GCR 1963, 209. The Washtenaw County Clerk’s office accepted the notice and filed the same. On March 2, 1977, Constan filed on plaintiffs’ behalf a motion for entry of judgment in accordance with the mediation panel recommendations. This motion advised the trial court that defendants refused to pay the award to plaintiffs and their attorney because of the lien claimed by Lindeborg. The motion requested that the trial court make such determination as necessary to resolve the matter. Mr. Constan argued in a brief attached to the motion that Lindeborg was not entitled to a claim of lien and that an award to Lindeborg, if any, should be limited by quantum meruit. The first issue defined in plaintiffs’ brief in support of the motion was:

"1. Can attorney Lindeborg claim a lien in the within proceedings.”

The argument was made that attorney Lindeborg submitted the issue to the court and the plaintiffs urged the court to act thereon and asked the court to "determine what lien, if any, he has”.

The trial court, on April 7, 1977, upon receiving a stipulation of the parties, ordered the Liles case discontinued with prejudice. The Krajewski case was similarly ordered discontinued with prejudice on May 4, 1977. At a hearing on the plaintiffs’ motion for entry of judgment on April 13, 1977, at which attorney Constan was not present, attorney Lindeborg filed with the trial court the fee agreement dated February 4, 1975, referred to above. The trial court decided to enforce the agreement and awarded Lindeborg one-half of the attorneys’ fee.

At a hearing on the entry of the order implementing the award, which took place May 25, 1977, Constan appeared and objected, but admitted preparing and signing the February 4th agreement. He now urged the trial court to decline to decide the attorney fee issue in spite of having previously requested such decision. The order was entered over his objections. Plaintiffs appeal of right from that order.

Plaintiffs argue that the trial court erred by entering an order in determination of a lien in favor of Mr. Lindeborg since he had neither appeared as the attorney of record nor intervened as a party in the principal litigation.

It is clear that attorney Lindeborg failed to comply with GCR 1963, 209.3 which requires a written application for intervention supported by pleadings setting forth the claim for which intervention is sought. Certainly, the better procedure would have been to file a motion to intervene to establish his rights under the contingent fee agreement. See generally 59 Am Jur 2d, § 146, p 581, 7 Am Jur 2d, § 262, p 193, § 302, p 215, § 265, p 195.

In plaintiffs’ brief in support of motion for entry of judgment, however, attorney Constan took the opposite position:

"Attorney Lindeborg submitted himself to the jurisdiction of this Court by filing his notice of lien. Accordingly, plaintiffs request that the court determine what lien, if any, he has.”

Plaintiffs’ attorney represented to the trial court that it had jurisdiction to confer the lien, and, thus, waived for plaintiffs any objection they might have had to procedural impropriety. There is no sound reason to suppose that procedural defects could not have been quickly cured if objections were raised, simply by filing correctly or amending the motion.

To avoid any further delay or prejudice to the adjudication of the rights of plaintiffs and both attorneys, we exercise our powers under GCR 1963, 820.1(2), and permit attorney Lindeborg to intervene nunc pro tunc. See GCR 1963, 13.

Mr. Constan’s argument that DR 2-107 prohibits attorneys from splitting fees without regard to services performed is beside the point here. Plaintiffs had hired Mr. Lindeborg and, therefore, were on notice that they would be liable for fees incurred while so employed. The fee agreement between the attorneys is within the guidelines set forth in DR 2-107. They worked out an agreement from equal bargaining grounds and there is no claim of overreaching. DR 2-107 was formulated to prohibit brokering; to protect a client from clandestine payment and employment; to prevent aggrandizement of fees. We are not faced with that situation here. Mr. Lindeborg did perform services for the plaintiffs, which they were aware of, and is entitled to be compensated for the work performed. We do not find error in the trial court’s decision to enforce the agreement of the attorneys to divide the fee. Its view of the relative fairness of the agreement and the proportion of productive activity expended did not lead to an erroneous result.

Affirmed.

       "DR 2-107 Division of Fees Among Lawyers.
      "(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
      "(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
      "(2) The division is made in proportion to the services performed and responsibility assumed by each.
      "(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.”

       The most expeditious method of resolving fee disputes between attorneys is by arbitration through the State Bar of Michigan. All that is required is the stipulation of the attorneys that the dispute be submitted to arbitration and the committee make a decision which is certifiable as a judgment in the circuit court.


author: R. B. Burns, J.

text:
    THONE v NICHOLSON
    Docket No. 77-3102.
    Submitted May 2, 1978, at Grand Rapids.
    Decided July 6, 1978.
    Leave to appeal applied for.
    Complaint by Roger Thone against Elmer J. Nicholson, Sima A. Nicholson, and Chicago and North Western Transportation Company for damages for injuries sustained in a motorcycle accident on land owned by the Nicholsons and formerly owned by the transportation company. The Delta Circuit Court, Clair J. Hoehn, J., granted summary judgment for the defendants for a failure to state a claim upon which relief could be granted. Plaintiff appeals. Held:

    A cause of action does not arise against the owner, tenant, or lessee of land used for recreational purposes for injuries to any person on the land for such purposes who did not pay a valuable consideration to use such property where the injury was not caused by gross negligence or wilful and wanton misconduct by the owner, tenant, or lessee. Summary judgment for the transportation company was proper since it was not alleged that it had retained control and possession of the property. Liability for injuries due to defective premises rests, at common law, upon the person who has control and possession of the premises. Summary judgment for the Nicholsons was also proper since there was no showing of gross negligence or wilful and wanton misconduct.
    Affirmed.
    References for Points in Headnotes
    [1, 5] 4 Am Jur 2d, Appeal and Error § 104.
    5 Am Jur 2d, Negligence §§ 45, 46, 99-107.
    Receivability of order denying motion for summary judgment. 15 ALR3d 899.
    [2-6, 8] 57 Am Jur 2d, Negligence §§ 45, 46, 99-107.
    62 Am Jur 2d, Premise Liability §§ 37-50, 90, 100.
    "Economic benefit” or "public invitation” as test of licensee-invitee status. 95 ALR2d 992.
    [3] 57 Am Jur 2d, Negligence § 249 et seq.

    [3 — 6] 62 Am Jur 2d, Premise Liability § 12 et seq.

    [7] 57 Am Jur 2d, Negligence §§ 99-107.
    62 Am Jur 2d, Premise Liability §§ 90, 100.

      1. Appeal and Error — Judgment—Summary Judgment — Factual Allegations — Conclusions—Factual Development.
    All factual allegations by the plaintiff, as well as any conclusions which can reasonably be drawn therefrom, are accepted as true when a summary judgment for the defendant is appealed; the Court of Appeals will, however, disregard mere conclusional statements of liability, since their task is to determine whether the plaintiffs claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.
    2. Action — Real Property — Liability—Recreational Users of Land — Injuries—Consideration—Gross Negligence — Wilful and Wanton Misconduct — Statutes.
    The statute regarding the liability of property owners or occupants to recreational users of their land provides that a cause of action does not arise against the owner, tenant, or lessee of land used for recreational purposes for injuries to any person who is on the land for outdoor recreational purposes where the injured person did not pay a valuable consideration for the use of such property and where the injury was not caused by gross negligence or wilful and wanton misconduct by such owner, tenant or lessee (MCL 300.201; MSA 13.1485).
    3. Action — Real Property — Former Owners — Liability—Recreational Users — Injuries—Evidence—Control—Possession— Statutes.
    The statute regarding the liability of property owners or occupants to recreational users of their land is inapplicable to a determination of the liability of the former owner of real property for injuries received by a recreational user of the land where there is no evidence that the former owner retained control or possession of the property and where such former owner is not alleged to be an owner, tenant, or lessee of the property; therefore, summary judgment in favor of a former owner of the land upon which a recreational user was injured was proper, in an action for damages for such injuries, where it was not alleged that such former owner has retained control and possession of the property (MCL 300.201; MSA 13.1485).
    4. Negligence — Real Property — Liability—Control—Possession— Vendor and Purchaser.
    Liability for an injury due to defective premises rests, at common law, upon the person who has control and possession of the premises; for that reason the vendor of real property is generally permitted to step out of the liability picture and shift responsibility for the condition of the property to the purchaser.
    5. Negligence — Liability—Real Property — Owners—Recreational Users — Consideration—Gross Negligence — Wilful and Wanton Misconduct — Summary Judgment — Appeal and Error — Statutes.
    The owners of real property are not liable for injuries to recreational users of their land who do not pay a valuable consideration for such use unless such injuries are caused through the owner’s gross negligence or wilful and wanton misconduct; therefore, summary judgment in favor of such land owners was proper, in an action for damages for injuries sustained by a gratuitous recreational user of their land, where there was no gross negligence or wilful and wanton misconduct (MCL 300.201; MSA 13.1485).
    6. Negligence — Common Law — Landowners—Common-Law Duty— Licensees — Implied Permission.
    The common-law duty of a landowner to one who comes upon his land turns upon the status of the visitor; a licensee is a person who enters on or uses another’s premises with the express or implied permission of the owner or person in control thereof; such permission may be implied where the owner acquiesces in the known, customary use of property by the public.
    7. Negligence — Gross Negligence — Wilful and Wanton Misconduct — Common Law.
    Gross negligence and wilful and wanton misconduct are distinct concepts at common law, although the terms have often been misused as synonyms.
    8. Negligence — Definition—Gross Negligence — Wilful and Wanton Misconduct — Guest Passengers — Common Law> — Premises Liability — Statutes.
    The definition of gross negligence and wilful and wanton misconduct under the guest passenger statute overlaps the definition of wilful and wanton misconduct at common law, however, guest passenger cases are not controlling as to the correct definition of wilful and wanton misconduct at common law; common-law premises liability is substantially broader than liability for wilful and wanton misconduct under either the guest passenger statute or common law (MCL 257.401; MSA 9.2101).

      Green, Renner, Weisse, Rettig, Rademacher & Clark, for plaintiff.

      Mikkola & Hiltunen, for defendants Elmer and Sima Nicholson.

      Clancey, Hansen, Davidson, Chilman & Graybill, for defendant Chicago and North Western Transportation Company.
    Before: V. J. Brennan, P. J., and R. B. Burns and M. J. Kelly, JJ.
   R. B. Burns, J.

Plaintiff had summary judgment entered against him for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and appeals. We affirm.

On review of plaintiffs amended complaint under GCR 1963, 117.2(1), we accept as true all of plaintiffs factual allegations as well as any conclusions which can reasonably be drawn therefrom, Van Liere v State Highway Dept, 59 Mich App 133, 137; 229 NW2d 369, 371 (1975), but disregard mere conclusional statements of liability, Binder v Consumers Power Co, 77 Mich App 343, 346-347; 258 NW2d 221, 224 (1977). Our task is to determine whether plaintiffs claim "is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery”. Crowther v Ross Chemical and Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577, 580 (1972).

Plaintiffs amended complaint alleged that he was injured when the motorcycle he was riding along an abandoned railroad right-of-way struck the bank of a creek which intersected the right-of-way. Defendants Nicholson, owners of the property, allegedly knew the property was used by the general public for recreational purposes, including motorcycling, and were aware that the intersection of the right-of-way with the creek constituted an inherently hazardous condition dangerous to the users of the property, but despite that knowledge failed to erect a bridge over the creek or erect signals, signs or warnings. Defendant Chicago and North Western Transportation Company, a predecessor in title to the property, allegedly created the hazardous condition by removing barricades at the creek when it sold the property.

The trial court granted defendants’ motions for summary judgment because it concluded none of the defendants had a duty to erect a bridge or post warnings for plaintiffs convenience, and because plaintiff had not alleged facts indicating wilful and wanton misconduct by any of the defendants. MCL 300.201; MSA 13.1485.

The statute upon which the trial court relied provides:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.” MCL 300.201; MSA 13.1485.

Since defendant Chicago and North Western Transportation Company is not alleged to be an owner, tenant, or lessee of the property, the statute is inapplicable to a determination of its liability. At common law, as a general rule liability for an injury due to defective premises rests upon the person who has control and possession of the premises. Nezworski v Mazanec, 301 Mich 43, 56; 2 NW2d 912, 917 (1942), Dombrowski v Gorecki, 291 Mich 678, 681; 289 NW 293, 294 (1939), Paisley v United Parcel Service, Inc, 17 Mich App 672; 170 NW2d 283 (1969). For that reason the vendor of real property is generally permitted to step out of the liability picture and shift responsibility for the condition of the property to the purchaser. Prosser, Torts (4th ed), § 64, p 412. Since there is no allegation that defendant Chicago and North Western Transportation Company retained control and possession of the property, it was entitled to summary judgment.

Because defendants Nicholson are alleged to be the owners of the property, their liability is governed by the statute. There is no allegation that plaintiff paid a valuable consideration for the purpose of motorcycling on the property, so that defendants Nicholson are not liable unless they caused plaintiffs injuries through gross negligence or wilful and wanton misconduct.

Several cases have defined and applied the terms gross negligence and wilful and wanton misconduct, as used in the instant statute. Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975), aff'd in part, rev’d in part 394 Mich 459; 231 NW2d 653 (1975), Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972), Magerowski v Standard Oil Co, 274 F Supp 246 (WD Mich, 1967). In Thomas this Court said the purpose of the statute was to open up and make available for public recreational use vast areas of vacant but private lands. We asserted that the method by which the goal was to be achieved was to codify the common-law liability of landowners to those who come gratuitously upon the land, and that the statute neither expanded nor restricted the common-law duty of landowners owed to licensees. 58 Mich App at 491-496; 228 NW2d at 789-791. In reliance upon Thomas we have looked to the common law for guidance as to the duty of a landowner to warn of hazardous conditions of the land. Our review indicates that Thomas, Taylor and Magerowski did not adequately distinguish the concepts of common-law premises liability, negligence, gross negligence, and wilful and wanton misconduct.

The common-law duty of a landowner to one who comes upon his land turns upon the status of the visitor.

"A licensee has been defined as a 'person who enters on or uses another’s premises with the express or implied permission of the owner or person in control thereof * * * Cox v Hayes, 34 Mich App 527, 532; 192 NW2d 68, 70-71 (1971).

Permission may be implied where the owner acquiesces in the known, customary use of property by the public. Polston v S S Kresge Co, 324 Mich 575, 578; 37 NW2d 638, 640 (1949), Sandstrom v Minneapolis, S P & S S M R Co, 198 Mich 99, 107; 164 NW 472, 474 (1917). Since plaintiff has alleged that defendants knew their property was used by the general public for recreational purposes, we infer that plaintiff was a licensee.

Early Michigan cases indicated that a landowner owed no duty to licensees to refrain from negligent acts generally, but instead would be liable only for reckless and wilful infliction of injury, Habina v Twin City General Electric Co, 150 Mich 41, 48; 113 NW 586, 588 (1907), or, inconsistently, for injuries inflicted through active, but not passive, negligence, see, e.g, Polston v S S Kresge Co, supra, at 580-581; 37 NW2d at 641, Schmidt v Michigan Coal & Mining Co, 159 Mich 308, 311-312; 123 NW 1122, 1123 (1909), Hargreaves v Deacon, 25 Mich 1, 4 (1872).

Subsequent cases, however, require that landowners refrain from negligent acts generally:

"[D]efendants’ duty to plaintiff required they exercise reasonable care to disclose to her dangerous defects which were known to them and were likely to be undiscovered by plaintiff. 2 Restatement of Torts, § 342.” Miller v Miller, 373 Mich 519, 524-525; 129 NW2d 885, 887 (1964).
" 'A possessor of land is subject to liability for bodily harm caused by a natural or artificial condition thereon to others who are privileged to enter the land for a public or private purpose, irrespective of his consent, if he
" '(a) knows that they are upon the land or are likely to enter it in the exercise of their privilege, and
" '(b) knows of the condition and realizes that it involves an unreasonable risk to them and has no reason to believe that they will discover the condition and realize the risk, and
" '(c) fails to exercise reasonable care
" '(i) to make the condition reasonably safe or
" '(ii) to warn them of the condition and the risk involved therein.’ ” Carlisi v Marysville, 373 Mich 198, 208-209; 128 NW2d 477, 483 (1964), quoting Restatement Torts, § 345.

Distinguish this negligence standard of conduct from the following definitions of gross negligence and wilful and wanton misconduct.

There are two primary sources of definition for the terms gross negligence and wilful and wanton misconduct: common law, and cases interpreting the now defunct guest passenger statute, MCL 257.401; MSA 9.2101, see Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975).

This Court has summarized the meaning of the terms under the guest passenger statute thusly:

"Although the statute posits these terms in the disjunctive, the Supreme Court has held them to be synonymous. Thayer v Thayer, 286 Mich 273; 282 NW 145 (1938), Pawlicki v Faulkerson, 285 Mich 141; 280 NW 141 (1938). Liability is imposed when the driver’s conduct 'manifests a high degree of danger, a manifest probability that harm will result therefrom, and an utter disregard of the probable consequences’. Stevens v Stevens, 355 Mich 363, 371; 94 NW2d 858, 863 (1959). A plaintiff must additionally show that the driver, through his conduct, exhibited 'an affirmatively reckless state of mind with intent to depart from careful driving’. Brooks v Haack, 374 Mich 261, 265; 132 NW2d 13, 15 (1965), Hendershott v Rhein, 61 Mich App 83; 232 NW2d 312 (1975).” Hoag v Paul C Chapman & Sons, Inc, 62 Mich App 290, 296-297; 233 NW2d 530, 533 (1975).

At common law, gross negligence and wilful and wanton misconduct are distinct concepts, although the terms have often been misused as synonyms. LaCroix v Grand Trunk WR Co, 379 Mich 417, 421-422; 152 NW2d 656, 657 (1967), Gibbard v Cursan, 225 Mich 311, 318-324; 196 NW 398, 400-402 (1923). Papajesk v Chesapeake & O R Co, 14 Mich App 550, 555; 166 NW2d 46, 48 (1968).

Gross negligence refers to the last clear chance doctrine, as set forth in Zeni v Anderson, 397 Mich 117, 146-156; 243 NW2d 270, 284-289 (1976).

The leading case on wilful and wanton misconduct, Gibbard v Cursan, supra, distinguished the concept from negligence in this manner:

"If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence— is different in kind. * * *
" 'Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree, whereas the whole doctrine that contributory negligence is no defense where the injury is the result of recklessness and wantonness is based upon the theory of a difference in kind. For the same reason, the phrase "reckless and wanton negligence” has a misleading tendency. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.’ ” 225 Mich at 320-321; 196 NW at 401.

LaCroix v Grand Trunk W R Co, supra, at 425-426; 152 NW2d at 659, adds this explanation of the concept:

" 'Wanton misconduct is a different kind of offense than ordinary negligence, even though it be gross. Fault is involved in both, but in the one the fault of the callous, the brutish, the quasi-criminal, in the other the human frailty of lack of care, of inattention, of diversion. These are faults of different hues in the spectrum of human conduct and so the courts have treated them. Our Court should do likewise.’ ”

Wanton and wilful misconduct is "either * * * an intentional wrong or a reckless and heedless disregard to another’s safety”. "[W]ilful negligence is quasi-criihinal and manifests an intentional disregard to another’s safety”. Papajesk v Chesapeake & O R Co, supra, at 555, 556; 166 NW2d at 48, 49.

It is apparent that the definition of gross negligence and wilful and wanton misconduct under the guest passenger statute overlaps the definition of wilful and wanton misconduct at common law. Both types of cases quote this three-part test as the applicable law:

" '(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) The omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ ” See, e.g., Kieft v Barr, 391 Mich 77, 80; 214 NW2d 838, 839 (1974), Tien v Barkel, 351 Mich 276, 281-282; 88 NW2d 552, 555 (1958), Gibbard v Cursan, supra, at 322; 196 NW at 402.

Thus, this Court has said that common-law wilful and wanton misconduct is equivalent to guest passenger gross negligence and wilful and wanton misconduct. Hoag v Paul C Chapman & Sons, Inc, supra, at 299; 233 NW2d at 535. This equation is unfortunate. The Supreme Court has admonished that guest passenger cases are not controlling as to the correct definition of wilful and wanton misconduct at common law. LaCroix v Grand Trunk W R Co, supra, at 426; 152 NW2d at 660. Failure to maintain the distinction will blur the concepts and contribute to confusion over the various meanings of gross negligence and wilful and wanton misconduct.

The Supreme Court has criticized the above three-part test as failing to adequately distinguish negligence from wilful and wanton misconduct. Zeni v Anderson, supra, reviewed the common-law gross negligence doctrine in Michigan, and found the cases confusing. The Court aptly observed that the above three-part test is misleading:

"While Gibbard said it distinguished 'wilful, wanton or reckless misconduct’ from negligence, it accepted a definition of 'wilful’ couched in terms of ordinary negligence, except for the recognition that failure to exercise ordinary care would have dire consequences.” Zeni v Anderson, supra, at 150; 243 NW2d at 286.

We have seen that common-law premises liability is substantially broader than liability for wilful and wanton misconduct under either the guest passenger statute or common law, and that the above three-part test is misleadingly suggestive of a negligence standard rather than wilful and wanton misconduct. Cases interpreting MCL 300.201; MSA 13.1485 have failed to recognize this.

In Magerowski v Standard Oil Co, supra, the defendant argued that it was not grossly negligent in allowing a child to fall off its dock and drown. The Federal district court relied upon premises liability law, the attractive nuisance doctrine, to find a duty on the part of the defendant, and quoted as the definition of "gross negligence” the three-part test. It is apparent that it applied a negligence, not a wilful and wanton misconduct or last clear chance doctrine, standard:

"There is sufficient evidence in the record to establish defendant knew children used its premises and in the exercise of ordinary care could have prevented them from using its facilities.” 274 F Supp at 248.

In Taylor v Mathews, supra, another child drowning case, this Court found a fact question as to "gross negligence or wilful and wanton misconduct” where gravel pit owners did not complain to the sheriff about swimmers, did not remove a diving board and take steps to prevent its replacement, did not fence the area and did not instruct their watchman to deny children access to the gravel pit. In doing so this Court followed the lead of Magerowski, relying upon attractive nuisance law and the misleading three-part test, without distinguishing premises liability cases from wilful and wanton misconduct or gross negligence at either common law or under the guest passenger statute.

In Thomas v Consumers Power Co, supra, adults were killed when they drove a snowmobile under utility pole "guy wires” at night. This Court did distinguish gross negligence from wilful and wanton misconduct under common law, but equated common-law premises liability with wilful and wanton misconduct, failing to recognize that later premises liability cases expanded liability, and assumed that "active negligence” is the same as wilful and wanton misconduct. "Active negligence” is, however, still negligence, and different in kind from wilful and wanton misconduct. See LaCroix v Grand Trunk W R Co, supra, at 425; 152 NW2d at 659, Gibbard v Cursan, supra, at 320-321; 196 NW at 401. This Court distinguished Taylor on the erroneous basis that the passive negligence in that case was "active negligence”, and held that there was no "active negligence” on the part of Consumers Power Company. There was also no gross negligence, as Consumers Power Company’s negligence was not subsequent to plaintiffs’ negligence.

On appeal, the Supreme Court, in a memorandum opinion, reversed this Court’s application of the statute to the facts.

"Count II was based on gross negligence. We find that the allegations of the complaints sufficiently state facts giving rise to a cause of action based on gross negligence so as to withstand summary judgment. Plaintiffs clearly alleged that the defendants knew of Consumer Power’s unmarked guy wires and the threat therefrom to snowmobilers permissively using the Saginaw County Agricultural Society’s land, that unmarked guy wires in areas 'exposed to traffic’ were a violation of an industry safety code, that defendants could have avoided the resulting harm in several ways, and that they failed to do so. See, e.g., Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972); 2 Restatement of Torts 2d, § 500.” Thomas v Consumers Power Co, 394 Mich 459, 460-461; 231 NW2d 653, 654 (1975).

This opinion is an enigma. Clearly on the facts recited the last clear chance doctrine was inapplicable, and there was no gross negligence. See. Zeni v Anderson, supra. The Court’s citation of Taylor v Mathews, supra, and the Restatement appears to indicate that it meant that it found wilful and wanton misconduct. However, to this Court, there were no facts alleged in Thomas indicating wilful and wanton misconduct, as those terms were used under the guest passenger statute or are used at common law.

As we read Thomas, Taylor, and Magerowski, all of these cases applied a negligence standard analogous to that in Miller v Miller, supra, and Carlisi v Marysville, supra. Must we then read the Supreme Court opinion in Thomas as modifying the definition of wilful and wanton misconduct so as to make it equivalent to premises liability negligence? We think not. It is well-recognized that many cases have misused and misapplied the terms gross negligence and wilful and wanton misconduct, and that this area of the law is fraught with confusion and wrong statements of the law. See, e.g, Zeni v Anderson, supra, at 146-151; 243 NW2d at 284-286, LaCroix v Grand Trunk W R Co, supra, at 422-428; 152 NW2d at 657-660, Gibbard v Cursan, supra, at 318-322; 196 NW at 400-402, Papajesk v Chesapeake & O R Co, supra, at 554-556; 166 NW2d at 48. The Supreme Court’s use of the term "gross negligence” in Thomas indicates it did not have a firm grasp upon the distinction between gross negligence and wilful and wanton misconduct. This inference is supported by its reliance upon Taylor, which in turn relied upon the three-part test of wilful and wanton misconduct which the Supreme Court, subsequent to Thomas, found misleading. Zeni v Anderson, supra. We doubt that the Supreme Court would elect as the vehicle of a revision of the confusing law of wilful and wanton misconduct an obscure memorandum opinion. We therefore discount the Supreme Court’s opinion in Thomas as a definition of wilful and wanton misconduct, and look instead to common-law and guest passenger cases for guidance as to the meaning of the term.

It is clear that no gross negligence is involved in this case. Zeni v Anderson, supra.

Plaintiff asserts that he has alleged facts which come within the three-part test of wilful and wanton misconduct. We doubt that plaintiff is seriously alleging that defendants had, as means at hand to avoid injuring him, a bridge, signals, signs or warnings. Even assuming plaintiff is serious in that allegation, he has been misled by the test into believing his allegations of negligence constitute allegations of wilful and wanton misconduct. Plaintiff’s allegation that defendants failed to construct a bridge or post warnings of a known hazardous, natural condition of the land would state a cause of action for negligence under premises liability law, Miller v Miller, supra, Carlisi v City of Marysville, supra, but plaintiff has alleged no affirmatively reckless act which states a cause of action for wilful and wanton misconduct. By enacting MCL 300.201; MSA 13.1485, the Legislature has turned back the clock in premises liability law as to recreational lands to the time when licensees took the land as they found it. See Habina v Twin City General Electric Co, supra, Hargreaves v Deacon, supra. In our opinion failure to post a warning of a stream which crosses an abandoned railroad right-of-way cannot amount to wilful and wanton misconduct.

Michigan’s vast private recreational lands are filled with natural hazards upon which users of that land are inevitably going to be injured. Indeed, many recreational users, including many off-road motorcyclists, seek out hazardous conditions, viewing them as challenges. If landowners could be held liable for failing to remove hazards or to warn of them, the purpose of MCL 300.201; MSA 13.1485 would be defeated. Rather than despoiling the natural quality of the land with signs pointing to various hazardous conditions for the benefit of a public which many landowners merely tolerate, landowners would find it would make much more sense to post the land "no trespassing”.

Affirmed. Costs to defendants.


author: Bashara, P. J.

text:
    BELLARMINE HILLS ASSOCIATION v THE RESIDENTIAL SYSTEMS COMPANY
    Docket No. 77-3989.
    Submitted March 15, 1978, at Lansing.
    Decided July 6, 1978.
    Leave to appeal applied for.
    George B. Hopping owned property containing a building restriction in his deed limiting buildings on the property to single family dwellings. The Residential Systems Company, a nonprofit charitable Michigan corporation, leased Mr. Hopping’s property and used it to permanently house a foster parent and six or fewer mentally handicapped children who received special care and treatment at the home pursuant to a license granted by the Department of Social Services. Bellarmine Hills Association is an incorporated association of homeowners having their residences in the same subdivision as Mr. Hopping’s property. Bellarmine Hills Association filed suit against Mr. Hopping and Residential Systems, seeking to enforce the restrictive covenant by enjoining the use to which the property was being put. The Oakland Circuit Court, Frederick C. Ziem, J., granted plaintiffs motion for summary judgment permanently enjoining that use of the property. Defendants appeal. Held:

    1. It is the settled public policy of Michigan to promote the development and maintenance of quality programs and facilities for the care and treatment of the mentally handicapped.
    2. Restrictive covenants may constitute valuable property rights and it has been the policy of the judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others; a restrictive covenant describing the character of permissible structures to be erected upon the property also contemplates that use and occupancy of the property shall be commensurately restricted.
    3. The word "family” denotes a concept, the application of which is dependent upon the basis of affiliation of the group being analyzed along with the public policies invoked by the particular circumstances of the situation; in the situation of a foster home for mentally handicapped children who live permanently in a residence, where they receive special care and treatment and where the number of persons assigned to the residence is restricted by license, the children and foster parent constitute a family as a matter of law within the purview of a covenant restricting buildings to single family dwellings.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Hospitals and Asylums § 3.
    41 Am Jur 2d, Incompetent Persons § 33.
    [2] 20 Am Jur 2d, Covenants, Conditions and Restrictions §§ 189, 288, 299.
    [3] 20 Am Jur 2d, Covenants, Conditions, and Restrictions §§ 196, 216.

      Reversed.
    1. Mental Health — Public Policy to Promote Care and Treatment of Mentally Handicapped.
    It is the settled public policy of Michigan to promote the development and maintenance of quality programs and facilities for the care and treatment of the mentally handicapped.
    2. Covenants — Building Restrictions — Property—Enforcement of Restrictive Covenants — Interpretation of Restrictive Covenants.
    Restrictive covenants may constitute valuable property rights and it has been the policy of the judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others; a restrictive covenant describing the character of permissible structures to be erected upon the property also contemplates that use and occupancy of the property shall be commensurately restricted.
    3. Covenants — Building Restrictions — Single Family Dwellings— Definition of Family.
    The word "family” denotes a concept, the application of which is dependent upon the basis of affiliation of the group being analyzed along with the public policies invoked by the particular circumstances of the situation; in the situation of a foster home for mentally handicapped children who live permanently in a residence, where they receive special care and treatment and where the number of persons assigned to the residence is restricted by license, the children and foster parent constitute a family as a matter of law within the purview of a covenant restricting buildings to single family dwellings.

      Milmet, Vecchio, Kennedy & Carnago, P. C. (by Donald E. Schuster), for plaintiff.
    Michigan Protection and Advocacy Service for Developmental^ Disabled Citizens (by David T. Verseput and William J. Campbell) and Kenneth W. Ostrowski, for defendants.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   Bashara, P. J.

Defendants appeal from a summary judgment granted to plaintiff. That judgment permanently enjoined defendants from using a certain residence for treatment of six or less mentally retarded children. Treatment was rendered under an arrangement whereby six or fewer retarded children would live with a resident foster parent.

Plaintiff is an incorporated association of homeowners having their residences in the same subdivision as the foster care facility. The subdivision is comprised entirely of single-family residences, one of which is leased by defendant Residential Systems from defendant Hopping. Residential Systems is a charitable organization, within the meaning of the Internal Revenue Code, that locates and leases residential property for the operation of foster care facilities for mentally retarded children.

The facility with which this litigation is concerned is licensed by the Department of Social Services pursuant to the child care organizations act. At the time this action was initiated, four mentally retarded children and one foster parent lived in the residence on a permanent basis. Other personnel would visit the home during the day to render care and treatment to the children. The children also attend special classes at the local public schools.

At such time as a child has sufficiently responded to treatment that he can return to the care of his parents, his residency at the facility terminates, and another child is assigned to the home by the Department of Social Services. Two additional children were scheduled to be assigned to the residence by the Department when this suit commenced. That assignment is being held in abeyance pending the resolution of this controversy.

All property in the subdivision is subject to a restrictive covenant limiting the type of structures built thereon to single-family residences. Plaintiff alleged that defendants’ use of the property was in violation of that covenant. The theory underlying that allegation was that six mentally retarded children residing with a foster parent for the purpose of receiving care and treatment of their affliction does not constitute a family as that term is used in the covenant.

Both parties moved for summary judgment. Each claimed that there was no genuine issue of material fact, and that the legal definition of family entitled them to prevail as a matter of law.

Defendants maintain that the judgment for plaintiff is erroneous, because the restrictive covenant controls only the type of structure that may be constructed, not the use and occupancy of the property. Further, defendants contend that the trial court erred in defining "family” to preclude defendants’ use of the property as violative of the covenant, and that such result is contrary to this state’s declared public policy.

Unquestionably, promoting the development and maintenance of quality programs and facilities for the care and treatment of the mentally handicapped is a settled public policy of our state. That policy has both a constitutional and legislative foundation. But we must also recognize that restrictive covenants may constitute valuable property rights. Kaplan v Huntington Woods, 357 Mich 612, 617; 99 NW2d 514 (1959), Monroe v Menke, 314 Mich 268, 273; 22 NW2d 369 (1946). Further, it has been the policy of our judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others. Wood v Blancke, 304 Mich 283, 287-288; 8 NW2d 67 (1943).

Where restrictive covenants describe the character of permissible structures to be erected upon the property, they also contemplate that use and occupancy of the property shall be commensurately restricted. Bassett Building Co v Jehovah Evangelical Lutheran Church, 371 Mich 459, 463; 124 NW2d 236 (1963), Wood v Blancke, supra. Covenants of restriction, especially those pertaining to residential use, preserve not only monetary value, but aesthetic characteristics considered to be essential constituents of a family environment. Consequently, failure to give complete eifect to restrictive covenants in accordance with their import works a great injustice to the property owners. Wood, supra.

In the case under review, as the trial court correctly held, the property is restricted to single family use. As a result, the foregoing public policies confront one another in contest, with the legal concept of "family” resting at the fulcrum of determination.

Concerned with the legal definition of family, our Supreme Court, in the seminal case of Carmichael v Northwestern Mutual Benefit Ass’n, 51 Mich 494, 496; 16 NW 871 (1883), stated:

"Now this word 'family,’ contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers.”

Our examination of subsequent cases and authority from other jurisdictions discloses no more specific definition of the term. Rather, the word family denotes a concept, the application of which is dependent upon the basis of affiliation of the group being analyzed juxtaposed with the public policies invoked by the particular circumstances of the case being reviewed.

For example, in Carmichael the Court construed family to encompass an unmarried man residing with an unrelated young woman so as to entitle her to the benefits from his life insurance policy. The Court observed that the man and girl had lived together since her early youth, and that he considered and cared for her as a daughter. Apparently, the Court perceived the man’s voluntarily offered support and care for the child as a relationship favored by public policy.

That relationship was compared and contrasted by the Court with the situation presented in Mutual Benefit Association of Michigan v Hoyt, 46 Mich 473; 9 NW 497 (1881). In that case, the plaintiff attempted to secure the benefits from the decedent’s life insurance policy. Although he resided with decedent, the Court found that he was endeavoring to obtain a financial advantage from the decedent’s ailing health by acquiring insurance under which plaintiff named himself as beneficiary and paid the premiums. As noted by the Carmichael Court, the transaction was tainted by fraud and bad faith and was to be discouraged as a matter of public policy. Carmichael, supra, at 496. Consequently, the relationship in Hoyt was found not to come within the meaning ascribed to "family”.

Similarly, the term family has been interpreted so as to give effect to the public policy of discouraging meretricious relationships. McDonald v Kelly Coal Co, 335 Mich 325; 55 NW2d 851 (1952). But the religious affiliation between clergymen is perceived as a basis favored by public policy so as to constitute a single family use of property within the meaning of a restrictive covenant. Boston-Edison Protective Ass’n v The Paulist Fathers, Inc, 306 Mich 253; 10 NW2d 847 (1943). On the other hand, such a favored basis of affiliation does not inhere in the operation of a boarding house or a college fraternity house.

The basis of affiliation in the case under consideration is the mutual need of the children for expert treatment of their mental retardation. We have previously noted the momentous public policy supporting that endeavor. Defendants have afforded treatment to the children in an atmosphere that enables them to retain the benefits of residing in a household, instead of an institution. Further, parents of mentally retarded children may be encouraged to seek professional care for their children, knowing that they will reside in a homelike environment in lieu of being "institutionalized”.

In analyzing a similar facility to discern the existence of family characteristics, the Court of Appeals of New York observed:

"It is significant that the group home is structured as a single housekeeping unit and is, to all outward appearances, a relatively normal, stable, and permanent family unit, with which the community is properly concerned.
"The group home is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle Terre v Boraas, 416 U.S. 1 [94 S.Ct. 1536, 39 L.Ed.2d 797 (1974)]). Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes. Nor is it like the so-called 'commune’ style of living. The group home is a permanent arrangement and akin to a traditional family, which also may be sundered by death, divorce, or emancipation of the young. Neither the foster parents nor the children are to be shifted about; the intention is that they remain and develop ties in the community. The purpose is to emulate the traditional family and not to introduce a different 'life style’.” City of White Plains v Ferraioli, 34 NY2d 300, 304-305; 313 NE2d 756, 758; 357 NYS2d 449, 452 (1974).

The group in the instant case has those family characteristics described in Ferraioli. Indeed, the licensing legislation restricts the number of persons to be assigned to such facilities with the apparent intent being to impart, to the extent possible, a family image to the group. The associational nexus of the group clearly occupies a favored position in our state’s public policy.

Accordingly, we are constrained by the foregoing principles to conclude that the children and foster parent in this case constitute a family, as perceived in the eyes of the law. Therefore, the defendants are entitled as a matter of law to a judgment dismissing the plaintiffs action.

Reversed. No costs, this being a public question.

        See Int Rev Code of 1954, § 501(c)(3).

       MCL 722.111, et seq.; MSA 25.358(11), et seq. Although not specified in defendants’ brief, from the nature of the services rendered, the facility would be licensed as a child caring institution as defined in § 1(a) of the act or a foster family group home as defined in § 1(e)(ii) of the act.

       In pertinent part, the restrictive covenant provides as follows:

        "RESIDENTIAL LOTS. All lots in said subdivision shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one single private family dwelling with attached private garage for not less than two (2) cars, except as herein otherwise provided.”

        See Const 1963, art 8, § 8, which provides:
      “Institutions, programs and services for the care, treatment, education or rehabilitation of those inhabitants who are physically, mentally or otherwise seriously handicapped shall always be fostered and supported.”
      This section expanded the scope of the prior constitutional language, which was thought to be excessively restrictive, given the advances achieved in mental and physical treatment methodology. The revised language was intended to impart more expansive concepts into its meaning so as to avoid limiting treatment programs to those purely institutional in character. See Convention Comment, 2 MCLA, p 500.

       Of particular pertinence to the type of facility operated by defendants are the provisions of § 16a of 1943 PA 183 and 184, and § 3b of 1921 PA 207, all added by 1976 PA 394, 395, 396. Identically phrased, those sections denominate such facilities as residential uses for purposes of county, municipal, or township zoning, stating as follows:
      "(1) As used in this section, 'state licensed residential facility’ means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.
      “(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit' or procedure different from those required for other dwellings of similar density in the same zone.” MCL 125.216a(1), (2), 125.286a(1), (2), 125.583b(1), (2); MSA 5.2961(16a) (1), (2), 5.2963(16a) (1), (2), 5.2933(2) (1), (2).

        Nerrerter v Little, 258 Mich 462; 243 NW 25 (1932).

        Seeley v Phi Sigma Delta House Corp, 245 Mich 252; 222 NW 180 (1928).

        See MCL 722.111, et seq.; MSA 25.358(11), et seq. and note 5, supra.