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STATE OF MICHIGAN
COURT OF APPEALS


DEMPSEY GROSS and JOANN GROSS, Plaintiffs-Appellees, v DICK MILLS, Defendant-Appellant, and DIANE MILLS, Defendant.

UNPUBLISHED September 28, 1999

No. 211776 Cass Circuit Court LC No. 97-000551 CZ

Before: McDonald, P.J., and Neff and Smolenski, JJ. PER CURIAM. In this action involving a dispute over defendants' use of a ten-foot-wide strip of land for lake access, defendant Dick Mills ("Mills") appeals as of right from an order granting summary disposition in favor of plaintiffs. We affirm. I In December 1992, in a previous lawsuit between the parties, the trial court determined that plaintiffs were the fee owners of certain real property fronting Garver Lake and defendants had an easement over the westerly ten feet of the property, "to be used for access to and from the waters of Garver Lake." In that earlier lawsuit, plaintiffs filed a counterclaim, requesting, among other things, that defendants be prohibited from maintaining a pier or docking boats on the easement property; however, the court did not address these matters in its decision from the bench. When asked if the court had neglected anything, plaintiffs' counsel noted that the requests in the counterclaim had not been addressed, i.e., that defendants be ordered to keep the easement in a neat and sightly fashion and be prohibited from maintaining a pier. The court responded:

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They haven't been, and I guess the reason for that is I haven't had any proofs on it, number one. Number two, I intentionally neglected to mention anything about that because, on purpose I guess, I wanted to let the dust settle from this determination and also give the parties an opportunity to try and patch things up here and live harmoniously. Now that they h ave their legal rights defined I would hope that they would be able under those circumstances to continue to coexist and that they would reach some accommodation that would of course still allow [defendants] to enjoy their easement and to gain access to the lake, since it's pretty important to them, and in particular Mr. Mills who does a lot of fishing, and to give them an opportunity to try and reach some accommodation. If between now and judgment entry you continue to have further problems, they're not able to do that and you need some direction from the Court as far as the specific judgment language is concerned, you can come back to the Court and I'll be happy to address that. I would hope that they would be able to somehow work that out on their [own] in terms of the specific uses that it would be put, that the easement would be put. On February 8, 1993, the court entered a final order adjudging ownership of the property and dismissing with prejudice the complaint and countercomplaint. The order made no mention of riparian rights or defendants' rights to construct or maintain a pier on the ten-foot strip of land. That order was affirmed by this Court on February 15, 1995. However, the dispute between the parties was not put to rest because subsequently they disagreed about defendants' use of the easement. II Plaintiffs filed the instant action on July 16, 1997, requesting a declaratory judgment determining that they own the riparian rights associated with the waterfront property and that defendants' use is limited to an easement for access to and from the lake and for enjoyment of the lake surface. Plaintiffs also sought a permanent injunction prohibiting defendants from constructing, installing or maintaining a dock or pier on the waterfront property; regularly anchoring or harboring boats there; altering the lake frontage and associated lake bottom area; or interfering with plaintiffs' use and enjoyment of their lake frontage and associated riparian rights. After a series of motions and a hearing, the court determined that an evidentiary hearing was necessary to address whether plaintiffs' claim regarding the scope of the easement was barred by the doctrine of laches or whether defendants' existing use of the easement should continue under a theory of acquiescence or adverse possession. Following the hearing, the court determined that neither acquiescence nor adverse possession applied in this case. First, because the dispute involved an easement, which is a permissive use, there was no basis for defendants' claim of adverse possession. Regardless, the claim failed because defendants did not establish the requisite fifteen-year period of continuous and uninterrupted use.

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Further, the court found no acquiescence or agreement between the parties such that plaintiffs should be estopped from claiming that defendants' use was contrary to the easement. The court noted that the scope of an easement is well defined under Michigan law and does not include riparian ownership rights, or the right to install a pier or permanently dock a boat. Rather, the easement holder has only the right to traverse the land to access a given lake. Because the deed language in this case did not afford defendants additional rights, plaintiffs were entitled to the requested declaratory and injunctive relief. The court granted summary disposition for plaintiffs under MCR 2.116(C)(I)(2), finding that there was no genuine issue of material fact and plaintiffs were entitled to judgment as a matter of law. III On appeal, Mills contends that because the issue of defendants' right to erect a pier was raised and left undecided in the previous litigation, the doctrine of res judicata bars litigation of this issue in the current action. Res judicata requires that: (1) the prior action was decided on the merits; (2) the matter contested in the second case was resolved in the first; and (3) both actions involved the same parties or their privies. Limbach v Oakland Co Rd Comm, 226 Mich App 389, 395; 573 NW2d 336 (1997). Michigan has adopted the broad view of res judicata, which bars litigation in the second action of not only those claims actually litigated in the first action, but also claims arising out of the same transaction which the parties, exercising reasonable diligence, could have litigated but did not. Sprague v Guhagiar, 213 Mich App 310, 313; 539 NW2d 587 (1995). Nevertheless, the doctrine of res judicata is not absolute and it should not be applied where it would work an injustice, such as where a party did not have a full and fair opportunity to litigate an issue in an earlier case. 46 Am Jur 2d, Judgments,

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