LEVIN, J.
The defendant State Highway Commissioner appeals an award by the Court of Claims to plaintiff, Albert Reich. We affirm.
Albert Reich is a dairy farmer. His farm, comprising some 220 acres, is in Otsego Township, Allegan County. In 1961 the defendant State Highway Commissioner began making road improvements in the area of the Reich farm. One of these improvements was the widening of Thirteenth Street, a county road running through the Reich property. The road was widened from a narrow lane, some 15 feet wide, to a full 66 feet wide.
The commissioner did not seek to condemn the portion of the Reich farm which was taken in order to widen Thirteenth Street. It was claimed that the land was subject to an easement provided by the following statutory provision:
"All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines." (Emphasis supplied.) MCLA 221.20; MSA 9.21.
Construction crews moved onto the land, trees were felled and fences torn down. Reich's dairy business suffered. Crops planted in fields where heavy equipment had run would not grow. Cows ingested scattered pieces of the destroyed fence and died.
Subsequently, in Eager v. State Highway Commissioner, 376 Mich. 148 (1965), the Michigan Supreme Court considered the contention that this statute gave a 4-rod (or 66-foot) easement for all roads used for the statutory period regardless of the width of the road in actual use. The Court rejected this contention, saying:
"[A] highway by user becomes such to the width and extent used. We agree with the trial court that privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of Constitution of 1850, art 18, § 14, Constitution 1908, art 13, § 1, which prohibited taking by the public of private property except upon determination of necessity and just compensation `being first made or secured'."
The commissioner does not contend either that there has been an express grant of a 66-foot easement for Thirteenth Street through the Reich farm, or that such an easement had been obtained by actual use.
The commissioner raises a number of defenses to the imposition of liability.
Initially, he contends that Reich's claim is barred because he failed to give the state notice of his claim within six months as required by the Court of Claims Act. MCLA 600.6431(3); MSA 27A.6431(3). In Reich [that plaintiff Reich is not the plaintiff in this case] v State Highway Department, 386 Mich. 617 (1972), the Michigan Supreme Court held unconstitutional the 60-day notice provision of § 4 of the Government Tort Immunity Act. MCLA 691.1404; MSA 3.996(104). The Court held that this notice requirement denied the equal protection of the laws by favoring governmental tortfeasors over private tortfeasors, to whom the victim is not required to give notice of his claim. This reasoning applies with equal force to the six-month notice requirement of the Court of Claims Act, and we are, therefore, on the authority of Reich v. State Highway Department, obliged to hold this notice requirement to be likewise unconstitutional. Cf. Crook v. Patterson, 42 Mich. App. 241 (1972).
We turn to the commissioner's contention that this action is barred by the statute of limitations. The limitation for bringing a claim against the state cognizable by the Court of Claims is three years. MCLA 600.6452; MSA 27A.6452.
The actual trespass in widening Thirteenth Street occurred during the spring and summer of 1962. Reich filed a notice of intention to file a claim in the Court of Claims on October 22, 1963, and filed a complaint seeking damages in the Court of Claims on July 27, 1964 — well within the three-year limitations period.
The Court of Claims dismissed the action and we affirmed on appeal. Reich v. State Highway Commissioner, 5 Mich. App. 509 (1967). Our affirmance was based on Reich's failure affirmatively to allege in his complaint the date of "the happening of the event giving rise to the cause of action" as provided for in the Court of Claims Act.
Reich commenced the present action by filing a complaint in the Court of Claims on October 26, 1966, some 2-1/2 months before the opinion in the former appeal was handed down. Although this was more than 3 years after the date of the initial trespass, the present action is not barred because the earlier action served to toll the statute of limitations.
The tolling statute provides:
"The statutes of limitations are tolled when
"(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
"(2) jurisdiction over the defendant is otherwise acquired, or when,
"(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter." MCLA 600.5856; MSA 27A.5856.
The Michigan Supreme Court has ruled that this section "deals only with prior lawsuits between the parties which have not adjudicated the merits of the action". Buscaino v. Rhodes, 385 Mich. 474, 482 (1971). The Buscaino Court went on to quote approvingly from the Committee Comments on this section:
"In the event of the dismissal, on some ground other than on the merits (as for example — lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled." 34 MCLA, p 945; 23 MSA, p 136.
The substance of the present action is identical to that raised in the earlier action. The dismissal of the earlier action was not based on the merits, but rather on a procedural shortcoming.
The foregoing discussion also serves in part to answer the commissioner's contention that our decision on the appeal of the earlier action bars the present action. Our decision in that appeal did not dispose of Reich's claim on the merits. We ruled only that he had failed to comply with procedural prerequisites to suit. In the interim between that appeal and this appeal there has been both an effort by Reich to supply the missing date and an important change in the law. Our earlier decision is not res judicata of the meritorious issues adjudicated by the Court of Claims in the present action.
See State Farm Mutual Automobile Insurance Co v. Duel, 324 U.S. 154, 162; 65 S Ct 573; 89 L Ed 812 (1945); In re Raseman Estate, 18 Mich. App. 91, 104 (1969); Vestal, Res Judicata/Preclusion, p V-411; 46 Am Jur 2d, Judgments, § 444, p 614.
The commissioner also argues that liability for continuing injury should be excused because the state undertook only to construct and not maintain Thirteenth Street. However, the widening operations were concluded at the expense and under the control of the commissioner. The damages suffered by Reich were the natural and proximate result of the widening operations. The locus of responsibility for maintenance of Thirteenth Street is not controlling.
Reich was not awarded and was not entitled to interest on the award in his favor for the period through the date of the judgment. He is, however, entitled to interest of 5% per annum from the date of the judgment entered by the Court of Claims. MCLA 600.6455; MSA 27A.6455.
Affirmed and remanded for modification of the judgment to allow interest from the date of the judgment. Costs to plaintiff.
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