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STATE OF MICHIGAN
COURT OF APPEALS


GARY WARD and CLAUDIA WARD, Plaintiffs/Counter DefendantsAppellees, v BARRON PRECISION INSTRUMENTS, L.L.C., and HASSAN PROPERTY MANAGEMENT, L.L.C., Defendants/Counter PlaintiffsAppellants.

UNPUBLISHED January 19, 2006

No. 263616 Genesee Circuit Court LC No. 03-077358-CH

GLENN M. HOWARTH and ANNE M. HOWARTH, Plaintiffs-Appellees, v BARRON PRECISION INSTRUMENTS, L.L.C., and HASSAN PROPERTY MANAGEMENT, L.L.C., Defendants-Appellants. No. 263617 Genesee Circuit Court LC No. 03-077850-CH

Before: Cavanagh, P.J., and Hoekstra and Markey, JJ. PER CURIAM. In these consolidated appeals, defendants challenge the trial court's orders granting plaintiffs summary disposition on counts IV and V of their complaints pursuant to MCR 2.116(C)(10). The trial court found that plaintiffs' lots in the recorded Warwick Farms subdivision plat extended to the edge of Warwick Lake, and that a private easement existed on land described as "Outlot A" in the subdivision plat in favor of the owners of lots 6-11, which also extended to the edge of Warwick Lake. We reverse and remand for further proceedings.

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This action arises from a dispute between the parties concerning their rights to a strip of property lying between a row of platted lots and Warwick Lake in the Warwick Farms subdivision (hereinafter the "reserved strip"). The plat map contains a handwritten note that states, "The land lying between Lots 6-11 and Warwick Lake is reserved for the private use of the proprietors." The plat also states that Outlot A, which runs between lots 8 and 9, from Carriage Hill Drive to the reserved strip, "is reserved as private easement for the private use of the Lot Owners, Drain Commissioner and public utilities." Plaintiffs are owners of lots that abut the reserved strip. Defendants are owners of all land that was part of the original parcel, but which was not platted as part of the subdivision. The parties dispute their respective rights and interests in the reserved strip and Outlot A. This appeal primarily concerns Count IV of plaintiffs' complaints, in which plaintiffs claimed an express easement in Outlot A, and also plaintiffs' Count V, in which plaintiffs sought a declaratory judgment that the platters intended for their lots to extend to the edge of Warwick Lake. The trial court granted summary disposition for plaintiffs on Counts IV and V, and granted plaintiffs' request for voluntary dismissal, without prejudice, of Counts I, II, and III, which asserted alternative theories concerning their rights and interests in the disputed property, as well as Count VI, which asserted a claim for nuisance. The trial court also voluntarily dismissed the Howarth plaintiffs' Count VII (also alleging a claim of nuisance), without prejudice, but granted summary disposition in favor of defendants on Count VII with respect to the Ward plaintiffs. We review de novo a trial court's resolution of a motion for summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Kraft v Detroit Entertainment, LLC, 261 Mich App 534, 539; 683 NW2d 200 (2004). Summary disposition should be granted if there is no genuine issue of any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. Id. at 540; see, also, MCR 2.116(C)(10) and (G)(4). Defendants argue that the trial court erred in determining that the platters intended for plaintiffs' lots to extend to the water's edge, and in determining that plaintiffs were "proprietors" within the meaning of the plat language stating that "[t]he land lying between Lots 6-11 and Warwick Lake is reserved for the private use of the proprietors." The determination of a party's rights under a plat dedication is a question of fact. Dyball v Lennox, 260 Mich App 698, 704; 680 NW2d 522 (2003). The intent of the grantor controls the scope of the grantor's dedication. Higgins Lake Prop Owners Ass'n v Gerrish Twp, 255 Mich App 83, 88; 662 NW2d 387 (2003). Where the language of a legal instrument is plain and unambiguous, it is to be enforced as written and no further inquiry is permitted. Dyball, supra. If, on the other hand, the text of the instrument is ambiguous, extrinsic evidence may be considered in order to determine the scope of the conveyance. Id.

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Here, the plat map unambiguously shows that the lot lines end at the reserved strip. Additionally, the reserved strip is labeled as "reserved for the private use of the proprietors," thereby clearly indicating that the reserved strip is not part of the individual lots. It is well established in Michigan case law that a property owner cannot claim ownership up to the water's edge where the property description or plat map clearly indicates that the seller reserved land between the owner's property line and the water's edge. See Fuller v Bilz, 161 Mich 589, 591593; 126 NW 712 (1910); Richardson v Prentiss, 48 Mich 88, 91-92; 11 NW 819 (1882); Watson v Peters, 26 Mich 508 (1873). Because the plat unambiguously shows that the individual lots are separated from Warwick Lake by the reserved strip, the trial court erred in holding that plaintiffs' lots extend to the edge of Warwick Lake. But we conclude that questions of fact exist with regard to whether plaintiffs possess an independent interest in the reserved strip and, if so, the nature of that interest. Because these questions cannot be resolved as a matter of law, we remand this case to the trial court for further proceedings. Defendants argue that only the original plattors, William and Edna Hovey, who are identified as proprietors in the plat, are proprietors within the meaning of the provision reserving the reserved strip "for the private use of the proprietors." Defendants therefore maintain that the Hoveys retained full ownership of the reserved strip and did not convey any interest in that strip to ACD and, accordingly, ACD could not have conveyed any interest in the reserved strip when it sold the individual lots. Plaintiffs do not clearly explain why they believe they possess an ownership interest in the reserved strip when their predecessor-in-title, American Community Developers, Inc ("ACD"), did not. Plaintiffs seem to assert that ACD was a "proprietor" and, therefore, acquired rights to the reserved strip that it passed on to its successors. Plaintiffs contend that even though ACD did not acquire ownership rights in the reserved strip, it acquired rights to use the reserved strip, which are appurtenant to the ownership rights in the lots. Although plaintiffs do not use the term "private dedication" in reference to the reserved strip, the substance of their argument is that the platters dedicated the reserved strip for private use by the lot owners in order to access Warwick Lake. In Little v Hirschman, 469 Mich 553, 555-562; 677 NW2d 319 (2004), our Supreme Court held that a subdivision plat recorded in 1913 could contain enforceable private dedications to lot owners in the subdivision, although the plat statutes then in effect did not expressly authorize such dedications. The Court noted that several decisions involving subdivisions recorded before enactment of the 1967 Land Division Act, MCL 560.101 et seq., enforced private dedications to lot owners of lands to be used as parks or streets, or for water access. Id. at 560-562, citing Minnis v Jyleen, 333 Mich 447; 53 NW2d 328 (1952); Dobie v Morrison, 227 Mich App 536, 537; 575 NW2d 817 (1998); Fry v Kaiser, 60 Mich App 574; 232 NW2d 673 (1975); Feldman v Monroe Twp Bd, 51 Mich App 752; 216 NW2d 628 (1974). The Court noted that such private dedications are "irrevocable upon the sale of the lots . . . because it is reasonably assumed that the value of that lot, as enhanced by the dedication, is reflected in the sale price." Little, supra at 559. Reviewing the language of the 1925 plat act, 1925 PA 360, which implicitly acknowledged the legitimacy of private dedications, the Court determined that

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"streets and parks may be dedicated to less than the general public, which, of necessity, means to private persons or entities." Id.1 Considering the specific dedication in the case before it, the Court in Little held that the language "dedicated to the owners of the several lots" gave the lot owners an irrevocable right to use the parks. Id. at 563. The Court stated "that dedications of land for private use in plats before 1967 PA 288 took effect convey at least an irrevocable easement in the dedicated land." Id. at 564. In this case, however, the plat is ambiguous with regard to whether the language "reserved for the private use of the proprietors" was intended as a dedication of a private easement. On the one hand, the plat identifies the Hoveys as "proprietors," which supports a reading that the land was reserved only for the use of the Hoveys, and was not intended for the private use of the lot owners. Plaintiffs argue that the term "proprietor" refers generally to persons with an ownership interest in land and, therefore, would include ACD, the land contract vendee when the plat was recorded. The 1929 plat act then in effect does not define "proprietor," but merely provides that "[t]he word `proprietor,' when used in this act, shall be deemed to include the plural as well as the singular and may mean either a natural person, firm, association, partnership, corporation or a combination of any of them."2 See former MCL 560.2. However, as used in other sections of the act, the term seemed to refer only to persons and entities with an ownership interest at the time the land was platted. For example,

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