When Pigs Fly and the Problem with Judicial Decisions

A retired federal bankruptcy judge once told me that judges are the ones who can make pigs fly–on paper.  He was right.

Clients consult with Outside Legal Counsel to get legal advice on their property issue, riparian or docking rights, and many other issues. We depend on prior judge-issued decisions to provide guidance. The problem, however, is that judicial decisions sometimes have flying pigs–something that is precedence but makes absolutely no real-world sense.

Take the case of of Twp of Lockport v City of Three Rivers.

Under Michigan law, a city can annex (take governmental control over) additional property as part of its city limits by using a law enacted by the Legislature. The law allows a city to annex property if “the territory proposed to be annexed to any city is adjacent and consists of a park or vacant property.” The term “vacant” is not defined.

On this particular property, the Township had previously obtained an easement when owned as private property and installed an underground water transmission line. The City later purchased the property (making it public property) and then attempted to annex it. The question is whether the land was “vacant”?

Looking to two previous decisions, the Court of Appeals’ panel deduced that a previous decision determined real property is deemed vacant when seasonally used for farming and subject to a lease agreement that may be terminated at any time.

Think about that. The Court of Appeals’ held that seasonally used farm land is vacant land. How does that make any sense? While such a notation resolved the issue in that case–where the installation of an active water transmission line makes the land not vacant–the court also established that seasonal farm land is vacant land.

I sense some farmers would disagree with such a conclusion of law but they will perhaps be more distracted by the swine taking flight into the Michigan sky.

Author: Philip Ellison

Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Outside Legal Counsel PLC. He represents riparians, backlotters, and others protecting water access on Michigan's recreational lakes. Visit his online profile at www.olcplc.com.