Preview:

STATE OF MICHIGAN COURT OF APPEALS

MICHAEL BENNINGHOFF, LAURIE BENNINGHOFF, KRIS KALLEMBACH, DERMOT PUTNAM, GAIL KAPLAN, and FRIENDS OF 121ST AVENUE, Plaintiffs-Appellants, and GANGES TOWNSHIP, Plaintiff/Counter-DefendantAppellant, v JOHN D TILTON, MARY E TILTON and HAROLD A STEGE and SUZANNE B STEGE, as trustees of the HAROLD A STEGE TRUST, Defendants/Counter-PlaintiffsAppellees, and ALLEGAN COUNTY ROAD COMMISSION, Defendant.

UNPUBLISHED November 12, 2009

No. 284637 Allegan Circuit Court LC No. 06-039595-CH

MICHAEL BENNINGHOFF, LAURIE BENNINGHOFF, KRIS KALLEMBACH, DERMOT PUTNAM, GAIL KAPLAN, and FRIENDS OF 121ST AVENUE, Plaintiffs-Appellees, and GANGES TOWNSHIP,

-1-

Plaintiff/Counter-DefendantAppellee, v JOHN D TILTON, MARY E TILTON and HAROLD A STEGE and SUZANNE B STEGE, as trustees of the HAROLD A STEGE TRUST, Defendants/Counter-PlaintiffsAppellants, and ALLEGAN COUNTY ROAD COMMISSION, Defendant. No. 284736 Allegan Circuit Court LC No. 06-039595-CH

Before: M. J. Kelly, P.J., and K. F. Kelly and Shapiro, JJ. PER CURIAM. In this real property dispute, both plaintiffs and defendants appeal as of right various actions taken by the trial court. On appeal, the primary issues are whether the general public can obtain a prescriptive right to use private land as a public park or beach and whether the public has in fact established the right to use the land at the point where 121st Avenue intersects Lake Michigan as a public beach.1 We conclude that, under Michigan law, the general public can obtain prescriptive rights to use private land as a public beach. However, in this case, we conclude that there are questions of fact as to whether and when the public might have established a prescriptive right to use the end of 121st Avenue as a public beach. For that reason, we conclude that the trial court erroneously granted summary disposition on this claim. Similarly, because there are questions of fact as to whether and when the public might have obtained such a prescriptive right, the trial court erred to the extent that it concluded that defendants' inverse condemnation claim was untimely. The timeliness of defendants' inverse condemnation claim cannot be ascertained absent resolution of these fact questions. Accordingly, we reverse in part, affirm in part, and remand for further proceedings.

Throughout this opinion, we shall use the phrase "prescriptive rights" to refer to the property rights accompanying an easement established by prescription. See, e.g., Hoag v Place, 93 Mich 450, 458; 53 NW 617 (1892) (referring to the property rights obtained as prescriptive rights and stating the elements for obtaining a prescriptive "right or easement in the lands" of another).

1

-2-

I. Basic Facts and Procedural History A. The Land at Issue and the Parties This case involves a dispute over the public's right to use the beach at the point where 121 Avenue intersects with Lake Michigan in Allegan County, Ganges Township. In the late nineteenth century, 121st Avenue, which was then called Plummerville Road, led up to the shoreline and then turned south to cross a creek that currently sits on the north end of the property owned by Defendants/Counter-Plaintiffs John D. Tilton and Mary E. Tilton. The road then proceeded into the small logging community of Plummerville. After the area was completely logged, the people of Plummerville abandoned the town. The bridge over the creek was eventually lost and Plummerville Road was thereafter shown to end in Lake Michigan. Eventually, the owners of the land on either side of 121st Avenue erected private residences.
st

The disputed road end was formerly under the jurisdiction of defendant Allegan County Road Commission (the Road Commission).2 However, during the course of this litigation, the Road Commission transferred jurisdiction to Ganges Township. Defendants/Counter-Plaintiffs John D. Tilton, Mary E. Tilton, and the Harold A. Stege Trust (the Stege Trust) own properties adjacent to the point where 121st Avenue ends at the Lake Michigan shoreline. John and Mary Tilton own the property immediately south of 121st Avenue on Lake Michigan. At the north end of the Tilton's property there is a creek--called Plummerville Creek--that flows into Lake Michigan. The Stege Trust owns the roughly triangular shaped property to the north of 121st Avenue. Harold A. Stege and Suzanne B. Stege are the trustees for the Stege Trust. The Stege Trust's property narrows as it approaches Lake Michigan. As a result, the Stege Trust's property contains a very narrow strip of shoreline.3 The following map depicts the Tilton property--including the position of Plummerville Creek--and the Stege Trust property in relation to each other and 121st Avenue:

2 3

The Road Commission is not a party to this appeal.

We shall collectively refer to John and Mary Tilton, the Harold A. Stege Trust, and Harold and Suzanne Stege as defendants.

-3-

Plaintiffs Michael Benninghoff, Laurie Benninghoff, Kris Kallembach, Dermot Putnam, and Gail Kaplan are owners of lots near the disputed area of shoreline. They do not have direct access to Lake Michigan. As a result, they and their lessees use the beach at the end of 121st Avenue for swimming, picnicking and general recreation. Friends of 121st Avenue is an organization formed during the course of this litigation to support the general public's right to use the beach at the end of 121st Avenue for swimming, picnicking and general recreation.4 B. Marshall v Ganges Township Although the suit underlying this litigation began in 2006, this is not the first time that the public's use of the end of 121st avenue resulted in litigation. In June 1962, Kenneth and Teresa Marshall sued Ganges Township, the Road Commission, and various private persons over the public's use of 121st Avenue.5 The case was assigned to Judge Raymond Smith. In their complaint, the Marshalls alleged that they purchased the land that was to the north of the creek that is currently on the Tilton's property and which included the end of 121st

We shall refer to Michael Benninghoff, Laurie Benninghoff, Kris Kallembach, Dermot Putnam, Gail Kaplan, Friends of 121st Avenue, and Ganges Township collectively as plaintiffs. For ease of reference, we shall refer to this as the Marshall litigation. The Marshalls' suit was joined with a companion case.
5

4

-4-

Avenue. The Marshals further alleged that, in the Spring of 1960, Ganges Township or the Road Commission cleared 121st Avenue westward from the point where it turned south all the way to the beach and made a parking area right in front of the Marshalls' home. The Marshalls stated that the general public used the road and parking area to access the beach and as a "lover's lane." The Marshalls also indicated that they complained to law enforcement agencies, but stated that such complaints proved "no deterrent to drinking parties in plaintiffs' front yard and on their beach during daylight hours and evenings into the wee hours of the morning." The Marshalls also alleged that, because neither Ganges Township nor the Allegan County Road Commission maintained the "road" in the preceding thirty years, the disputed section was not a public road. For that reason, the Marshalls asked the trial court to decree that the portion of 121st Avenue west of the point where the road turns south is private property and that neither Ganges Township nor the Road Commission has any right or title to the property. The Marshalls explained that a contrary ruling would undermine their enjoyment of their land: That the value of land purchased by plaintiffs is of little value if the road is a public one from the point where [the] road turns south across the creek west to the beach, as the beach in front of plaintiffs' house would be public beach with no privacy for plaintiffs, and the home built by plaintiffs will have little value as a summer home. In his March 15, 1963 opinion, Judge Smith noted that whether the disputed portion of 121 Avenue was a public road depended on whether it had been impliedly dedicated to the public. Judge Smith noted that dedication must first be implied by public use:
st

The dedication, if any, must be implied from the public use of the property under [MCL 221.20]. The record discloses that the public used the road to travel to Plummerville and later to the fish house which remained for a number of years before it was destroyed by fire. There is also evidence that the public used the road to haul gravel from the beach, to launch their boats, and to fish for smelt in the early Spring. A somewhat more extensive use was made by the public to provide access to the beach for picnics, outings and bathing. For these purposes the public used the beach which would have been the extension of the road in a straight line westerly. That notice was made of public use of the road is evidenced by the attempts to discourage such use and the persistence of public officials to keep the road open. Naturally the road was not intended for year around use so that the work that was done on it was only commensurate with its limited use, until 1960, when it appears that the Township of Ganges desired to dispel all doubt and ordered the work which resulted in these suits. In the opinion of the court the public use was sufficient to put private interests on notice. Judge Smith then explained that, since at least 1946, the Allegan County Road Commission had worked the road section at issue. Judge Smith stated that the work done on the road was to "allow access to the beach," which he noted was the "desired goal of the public users." Because the public had used the road and the Road Commission had accepted the road through improvements and maintenance, Judge Smith concluded that the road was dedicated to the public by use.

-5-

On March 27, 1963, Judge Smith signed a partial judgment in favor of Ganges Township and the Allegan County Road Commission. The judgment dismissed the Marshalls' suit against Ganges Township and the Road Commission and decreed that "the road commonly referred to as Plummerville Road is a public highway" through "to Lake Michigan." C. The Present Litigation 1. Origins and Nature of the Complaint The present litigation has its origins in the efforts by the Tiltons and Steges to limit the public's use of the beach at the end of 121st Avenue. The Tiltons and Steges have acknowledged that 121st Avenue is a public highway that ends in Lake Michigan and have recognized that this gives the general public the right of ingress and egress to Lake Michigan. However, the Tiltons and Steges have also sought the help of municipal authorities in restraining the public from using the beach for purposes other than ingress and egress to Lake Michigan. The Tilton and Stege families do not want the general public to use the road end for bathing, picnicking, camping, partying or any other recreational activities, which they believe exceed the scope of the public's right to use the road end for ingress and egress to Lake Michigan.6 Indeed, defendants contend that members of the general public routinely engage in dangerous, unsanitary and obnoxious behaviors on the beach area at the end of 121st Avenue. These alleged activities include: driving down to the water's edge, starting open fires on the beach, having sex, permitting unleashed dogs on the beach, public urinating and defecating, overnight camping, theft and vandalism, among others. The Tiltons and Steges were unsuccessful in gaining the help of Ganges Township in preventing the conduct about which they complained. As a result, the Tiltons and Steges turned to the Road Commission and the county sheriff. The Road Commission agreed that the public's right to use the road end was limited and placed signage at the road end warning the public about those limits. The sign warned: "121st Avenue Right of Way For Ingress & Egress Only Other Uses Constitute Recreational Trespassing." This statement originated from the prohibition found in the recreational trespass act (RTA), see MCL 324.73101, et seq. The Tiltons and Steges also prevailed on the Allegan County Sheriff to increase its efforts to enforce the limitations. In May 2006, plaintiffs--with the exception of Friends of 121st Avenue, which did not yet exist--sued the Tiltons, the Stege Trust and the Steges, as the Stege Trust's trustees, to protect the general public's right to use the road end as a public beach. In their complaint, plaintiffs alleged that, since the late 1980s, the Tiltons have "led a campaign to close public access to the beach" and that the Steges support that effort. Plaintiffs alleged that the Tiltons' efforts included writing letters to municipal officials, calling the police, harassing beach users, and inducing the Road Commission to post signage limiting the uses of the road end. Plaintiffs asserted that the Tiltons' efforts were contrary to Judge Smith's opinion in the Marshall

For ease of reference, we will henceforth refer to these uses as public beach uses in order to differentiate those uses from the more limited use for ingress and egress to and from Lake Michigan.

6

-6-

litigation, which clearly settled the public's right to use the beach at the end of 121st Avenue for general recreational activities. Plaintiffs' complaint stated four claims. In Count I plaintiffs asked the trial court to declare that Judge Smith's opinion in the Marshall litigation established that "the 121st Avenue Road End and Beach is open to the public for all historical uses including swimming, sunbathing, lounging, picnicking, and other common beach uses." In Count II plaintiffs asked the trial court to declare that the RTA does not apply to the end of 121st Avenue. In Count III plaintiffs alleged that the public had used the end of 121st Avenue for normal beach activities for as many as 150 years and that Ganges Township and the Road Commission had maintained the road end for those uses. These actions, plaintiffs alleged, established a prescriptive right for the public's use of the road end for normal beach activities. Plaintiffs also alleged that Judge Smith's opinion in the Marshall litigation also effectively "held that a prescriptive right to recreational public use exists at the 121st Avenue Beach." For these reasons, plaintiffs asked the trial court to order that the public has a prescriptive right to use the road end as a public beach. In Count IV plaintiffs stated allegations substantially similar to those in Count III, but asserted that the facts establish the public's right to a prescriptive easement over the road end for use as a public beach. In their answer to plaintiffs' initial complaint, defendants alleged, as an affirmative defense, that Ganges Township's "claims constitute inverse condemnation and a taking of Defendants' lawful property rights in violation of the Constitution of the State of Michigan." Defendants also filed a counter-complaint against Ganges Township, which contained three counts. In Count I, defendants alleged that Ganges Township's actions in participating in the suit constitute an attempt to "take" defendants' property for a public purpose without conducting formal condemnation proceedings. Plaintiffs also alleged that Ganges Township has "for many years, fostered and encouraged the use of the 121st Avenue Road End for uses and purposes beyond the scope of a highway by user under state law." For these reasons, defendants asked the trial court to enjoin Ganges Township from interfering with defendants' property rights and award damages for the losses occasioned by Ganges Township's interference. In Count II, defendants alleged that, based on its efforts to encourage the public to exceed the scope of the public's right to use the road end, Ganges Township should be held responsible for any damages caused by the general public under the RTA. Finally, in Count III, defendants asked the trial court to declare that Ganges Township's attempt to assert rights to the road end were beyond the scope of its governmental purpose. In July 2006, defendants moved to join the Road Commission as a necessary party to the litigation. The trial court granted the motion on August 15, 2006. In December 2006, the Road Commission informed the trial court that it had relinquished control of the road end at issue to Ganges Township. In February 2007, the Road Commission moved for its dismissal from the case. The trial court granted the Road Commission's request on March 8, 2007. In September 2006, plaintiffs, which at that point included the Friends of 121st Avenue, filed an amended complaint. The amended complaint stated four counts substantially similar to the counts in plaintiffs' original complaint.

-7-

2. Summary Disposition Before Judge Benson Judge Beach initially presided over plaintiffs' suit. However, by February 2007, the case had been transferred to Judge Benson. In February 2007, defendants moved for summary disposition of plaintiffs' claims. Defendants argued that the individual plaintiffs and the Friends of 121st Avenue lacked standing to assert the claims at issue because they did not have any rights greater than the general public in the disputed road end and individuals may not normally assert the rights of the general public. As for Ganges Township, defendants argued that Judge Smith's opinion in the Marshall litigation had no independent legal significance because courts speak through their judgments and Judge Smith's judgment only established that 121st Avenue was a public highway through to Lake Michigan. Defendants also argue that the highway-by-user statute cannot be used to establish a public park, rather it is limited to road uses. Because Michigan law clearly limits the public's ability to use roads that end in navigable water for purposes of ingress and egress only, defendants further argued that the trial court should dismiss plaintiffs' request for a declaration that Judge Smith's opinion gave the public rights to use the road end for sunbathing, picnicking, and other recreational uses. Likewise, defendants contended that Ganges Township could not otherwise obtain greater rights than those accompanying an implied dedication of a highway-byuser through a prescriptive easement or adverse possession. Defendants also asked the trial court to dismiss plaintiffs' claim asking for a declaration that the RTA did not apply. Defendants contended that the RTA did apply because it prohibits persons from entering or remaining on the land of a another to engage in recreational activities without permission and the public did not have permission to use the road end for anything other than access to the public trust and Lake Michigan. In February 2007, Ganges Township moved for summary disposition of defendants' counter claims. Ganges Township first argued that the implied dedication of 121st Avenue transferred the fee simple to the disputed road end to the Road Commission and then Ganges Township as the Road Commission's successor. For that reason, Ganges Township argued, defendants do not have any interest in the road end at issue and cannot, therefore, assert that Ganges Township has unlawfully permitted the general public to exceed the scope of any easement. In the same vein, Ganges Township also argued that the Tiltons' deed did not purport to convey the land under the road and, therefore, the Tiltons had no right to contest the use of the road end. Ganges Township also argued that defendants' inverse condemnation claim must be dismissed because Ganges Township already owns the road end in fee and, therefore, defendants would not be entitled to compensation for property rights that had already lapsed. Further, Ganges Township argued that it was not attempting to "take" property rights with its suit, but rather was asking the trial court to recognize and declare the nature and extent of Ganges Township's existing rights. Finally, Ganges Township argued that it has exercised its rights to the road end for far more than the six-year period of limitations applicable to inverse condemnation actions. As such, it argued that defendants' inverse condemnation claim was untimely.

-8-

Ganges Township argued that the trial court should also dismiss defendants counterclaim under the RTA because Ganges Township owned the fee under the road and had given the general public the right to use the road end for recreational activities. Ganges Township also argued that this claim was invalid because there was no longer a sign conspicuously prohibiting access and was otherwise untimely. Finally, Ganges Township argued that its actions to assert and preserve its property interests in the road end are within the scope of its municipal authority. For that reason, Ganges Township asked the trial court to dismiss defendants' counter-claim based on public purpose. In March 2007, plaintiffs moved for summary disposition in their favor on their claims. Plaintiffs argued that summary disposition in their favor was appropriate because Judge Smith's opinion in the Marshall litigation established that the public's right to use the road end for picnicking, sunbathing, swimming and other recreational uses was embodied in the dedication of the road. Thus, based on Judge Smith's opinion, defendants were estopped from relitigating whether the public could use the road end for general recreational purposes. In the alternative, plaintiffs argued that the undisputed evidence established that longstanding public use and control of the road end for those purposes vested the public with prescriptive rights to continue using the road end in those ways. In support of its argument, plaintiffs submitted the minutes of several meetings of the Board of Ganges Township. The minutes revealed that Ganges Township regularly considered and acted on requests concerning the road end and beach area, which was often referred to as "streamland." The requests included the removal of tires from the wooded area and creek, removal of trees from the beach, the placement of a gate, the placement of a sign prohibiting overnight camping, and requests to regulate open fires on the beach. On April 13, 2007, Judge Benson heard oral arguments on the parties' competing motions for summary disposition. On May 3, 2007, Judge Benson issued his opinion and order concerning the motions for summary disposition. Judge Benson first determined that the individual plaintiffs and the Friends of 121st Avenue had standing to bring the claims at issue. Judge Benson then determined that an implied dedication under the highway-by-user statute is limited to contemplated road uses, which did not include use of the highway as a "beach." For that reason, he granted defendants' motion as to plaintiffs' claim premised on Judge Smith's opinion and judgment in the Marshall litigation. Judge Benson next addressed plaintiffs' claim that the public obtained a prescriptive right to use the road end for recreational purposes. He noted that this area of the law was not welldeveloped, but that to the extent that the public could obtain recreational rights through prescription, plaintiffs had to present evidence that the government took action to facilitate and control the recreational use. Judge Benson noted that it was undisputed that the general public used the road end for recreational purposes. However, he concluded that there was no evidence that any public entity took steps to facilitate and control the public's recreational uses. He explained that Judge Smith's opinion in the Marshall litigation and the other evidence cited by the parties only referred to governmental actions that were consistent with the government's regulation of the road as a road--that is, the governmental actions did not implicate the use of

-9-

the road end as a public park. For that reason, Judge Benson also granted defendants' motion as to plaintiffs' count for a public prescriptive right. Likewise, Judge Benson rejected the notion that the individual plaintiffs had established a prescriptive easement.7 Because plaintiffs right to use the road end depended on the right of the public as a whole, Judge Benson determined that plaintiffs could not meet the exclusivity requirement for a prescriptive easement. For that reason, he also granted defendants' motion as to plaintiffs' count for a prescriptive easement. Finally, Judge Benson also determined that the RTA does apply to persons whose use of the road end exceeded the scope of the implied dedication by user. For that reason, defendants were entitled to invoke that act to prohibit those uses. Consequently, he also granted defendants' motion as to plaintiffs' request for a declaration that the RTA did not apply to the public's use of the road end. After having determined that each of plaintiffs' claims must be dismissed, Judge Benson turned to defendants' counter-claims against Ganges Township. He first determined that the public only has an easement for 121st Avenue and that the language in the Tiltons' deed did transfer the fee underlying the southern 33 feet of the easement. For those reasons, he concluded that defendants did have standing to raise their claims. Judge Benson also determined that Ganges Township's recent actions attempting to authorize the public to use the road end as a beach exceeded the scope of the dedication to the public. Because Ganges Township's actions occurred within six years, he also concluded that the period of limitations did not bar defendants' claim for inverse condemnation. Therefore, he denied Ganges Township's motion to dismiss that claim. Judge Benson also determined that Ganges Township could properly participate in the present case in order to protect the public's interest in the road end, but that it could also be liable for damages caused by its actions under the RTA. For those reasons, Judge Benson denied Ganges Township's motion to dismiss defendants' claim based on the RTA and granted its motion as to defendants' "public purpose" claim. On May 17, 2007, Ganges Township moved for reconsideration of Judge Bensons' opinion and order denying Ganges Township's motion for summary disposition as to defendants' claims for inverse condemnation and damages under the RTA. Judge Benson denied the motion in an opinion and order entered May 30, 2007. In June 2007, the Supreme Court Administrative Office assigned the case to Judge Kolenda.

7

Although Judge Benson addressed whether the individual plaintiffs had established a private prescriptive right, it does not appear that plaintiffs alleged a claim that they individually or collectively had a private prescriptive right to use the road end as a beach. Instead, plaintiffs apparently relied solely on the general public's longstanding use of the road end as a beach.

-10-

3. Summary Disposition Before Judge Kolenda On January 13, 2008, Ganges Township moved for summary disposition of defendants' remaining counter-claims. In its motion, Ganges Township again argued that defendants' claim for inverse condemnation should be dismissed. Ganges Township noted that our Supreme Court had rejected the continuing wrong doctrine and that the public's use of the road end for recreational purposes had been going on for more than fifteen years. Consequently, Ganges Township contended, defendants' inverse condemnation claim was time-barred. Ganges Township also argued that any harm to defendants' property values occurred as a result of the longstanding public use of the road end before Ganges Township asserted any rights to the road end. For that reason, Ganges Township argued that defendants' could not establish the harm element of an inverse condemnation claim. Finally, Ganges Township also argued that use of the road end as a public beach was consistent with the implied dedication. For all these reasons, Ganges Township asked Judge Kolenda to dismiss defendants' inverse condemnation claim. Ganges Township also argued that it was not a person within the meaning of the RTA and, therefore, could not be liable under that act. In the alternative, it argued that it had governmental immunity and that any acts giving rise to liability occurred more than three years before defendants filed their counter-claims and, as a result, the claim premised on the RTA was untimely. For these reasons, Ganges Township asked Judge Kolenda to dismiss defendants' claim under the RTA as well. On March 17, 2008, Judge Kolenda issued his opinion and order on Ganges Township's second motion for summary disposition. Benninghoff Exhibit 3. Judge Kolenda first noted that a government takes property when an encroachment onto private property has progressed to the point that its permanent nature is evident. He then determined that the evidence clearly demonstrated that any taking of private property for public use occurred long ago: "The Tiltons' letter of August, 1987, to counter-defendant township makes plain that, at least by then, it was transparent that the use of the `road end' about which the counterclaim complains had existed for years, had become permanent, and was of the same extent it is today." Further, he determined that, when the Road Commission transferred jurisdiction to Ganges Township, the transfer included the "taken use." Therefore, Judge Kolenda concluded, defendants' claim for inverse condemnation was untimely and must be dismissed. Judge Kolenda also concluded that defendants' claim premised on the RTA must also be dismissed. He explained that the complained-of uses are within the scope of Ganges Township's interest in the road end and, for that reason, are by definition not unauthorized. For the reasons stated, Judge Kolenda dismissed defendants' remaining counter-claims. Although Judge Kolenda did not explicitly state that he was revising Judge Benson's earlier order, he explained that he could properly do so: Because Judge Benson's earlier denial of a similar motion did not terminate this action, his order "is subject to revision," MCR 2.604(A), not only by him, but also by the undersigned. Inapplicable is the prohibition in MCR 2.613(B) on one judge setting aside another judge's orders or judgments. That prohibition is not absolute; there is an exception when the original judge is "absent or unable to act." Because Judge Benson was a retired, visiting judge, the -11-

lapse of his assignment triggers that exception, which means that this Court is free to revisit and revise any and all of his orders in this case. People v Herbert, 444 Mich 466, 471-471 (1993). On the basis of these statements, Judge Kolenda's opinion could be understood to have determined that the Road Commission had at some point more than fifteen years ago acquired the right to use the end of 121st Avenue as a public beach and transferred that right to Ganges Township. 4. Post Summary Disposition Proceedings On April 4, 2008, plaintiffs appealed as of right. This Court assigned plaintiffs' appeal docket number 284637. On April 7, 2008, defendants appealed as of right. This Court assigned docket number 284736 to defendants' appeal. This Court then ordered the appeals consolidated. See Benninghoff v Tilton, unpublished order of the Court of Appeals, entered May 16, 2008 (Docket Nos. 284637; 284736). On May 29, 2008, defendants moved for a stay of Judge Kolenda's opinion and order and enforcement of Judge Benson's opinion and order during the pending appeal. Defendants explained that Ganges Township has interpreted Judge Kolenda's opinion and order to overrule Judge Benson's opinion and order and even adopted a resolution directing the township supervisor to take action to maintain, enable, and enhance the road end for all beach purposes. Defendants argued that Ganges Township's actions will harm them and that the trial court should stay enforcement of Judge Kolenda's opinion and order and enjoin Ganges Township from taking any action pending the present appeals. On June 25, 2008, Judge Dewane of Berrien County heard oral arguments on defendants' motion for a stay pending appeal. On June 27, 2008, Judge Dewane entered his opinion and order concerning the motion for a stay. In his opinion, Judge Dewane stated that Judge Kolenda's opinion impliedly vacated Judge Benson's order and that he did not have the authority to revive Judge Benson's order. Judge Dewane agreed, however, that the status quo should be preserved. For that reason, he ordered the replacement of the sign referring to the RTA and stayed implementation of Ganges Township's resolution. On July 11, 2008, plaintiffs moved for clarification or reconsideration of the stay. On July 30, 2008, Judge Dewane signed an order clarifying what constituted the status quo, but otherwise denying reconsideration of the stay. On August 8, 2008, defendants moved for clarification or reconsideration of Judge Dewane's order of June 30, 2008, which clarified the status quo requirement of the stay. On August 14, 2008, Judge Dewane denied defendants' motion. These appeals followed.

-12-

II. The Public's Right to Use the Road End as a Beach A. Standard of Review Because this issue directly affects the proper resolution of the parties' remaining claims of error, we shall first determine whether the trial court properly granted summary disposition of plaintiffs' claim that the general public had obtained a prescriptive right to use the end of 121st Avenue as a public beach. On appeal, plaintiffs recognize that Judge Benson dismissed their claims based on a public prescriptive right and public prescriptive easement,8 but argue that Judge Kolenda vacated Judge Benson's opinion and order and impliedly determined that plaintiffs had established that the public had a prescriptive right to use the road end as a beach. In the alternative, plaintiffs contend that Judge Benson erred when he dismissed their claim based on a public prescriptive right. Defendants argue that Judge Kolenda's opinion did not alter Judge Benson's earlier dismissal and Judge Benson properly dismissed plaintiffs' claim after plaintiffs failed to present evidence establishing that a governmental entity took actions to control or facilitate the public's use of the road end as a beach. This Court reviews de novo a trial court's decision on a motion for summary disposition. AutoAlliance Int'l, Inc v Dep't of Treasury, 282 Mich App 492, 498-499; 766 NW2d 1 (2009). A trial court properly grants summary disposition under MCR 2.116(C)(10) when, "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." Whether the doctrine of collateral estoppel applies to a particular issue is a question of law that this Court also reviews de novo. VanVorous v Burmeister, 262 Mich App 467, 476; 687 NW2d 132 (2004). B. Waiver of Appeal As a preliminary matter, we must address plaintiffs' contention that defendants have waived their right to appeal Judge Kolenda's opinion and order. On appeal, plaintiffs contend that, in his ruling on defendants' motion for a stay, Judge Dewane construed Judge Kolenda's opinion and determined that Judge Kolenda vacated Judge Benson's earlier opinion, which had earlier dismissed plaintiffs' claims. In order to properly challenge Judge Kolenda's decision to vacate Judge Benson's opinion and order, plaintiffs further argue, defendants had to appeal Judge Dewane's ruling, which they did not do. By failing to appeal Judge Dewane's ruling, plaintiffs argue that defendants waived their right to challenge whether Judge Kolenda's opinion vacated Judge Benson's opinion. This Court reviews de novo questions of law, such as the scope of this Court's jurisdiction, the proper interpretation of court rules, and whether issue preclusion applies. See Chen v Wayne State University, 284 Mich App 172, 191; 771 NW2d 820 (2009); Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004).

8

We note that, as alleged, plaintiffs' counts three and four are nearly identical. Therefore, we shall treat these counts as a single claim alleging that the general public's longstanding use had vested into a prescriptive right to continue using the road end as a public beach.

-13-

Typically, a party may challenge any order leading up to the final judgment or order from which that party has appealed. People v Torres, 452 Mich 43, 57 n 14; 549 NW2d 540 (1996). For that reason, defendants were not required to specifically appeal each and every order issued by the lower court in order to preserve their appeal. In any event, Judge Kolenda's opinion and order was the final order in this case, see MCR 7.202(6)(a)(i), and defendants appealed that order as of right. Once defendants appealed that order, this Court had jurisdiction to consider the propriety of that order. MCR 7.203(A)(1). Likewise, defendants' appeal of Judge Kolenda's order effectively deprived the trial court of the authority to set aside or modify that order. MCR 7.208(A). Accordingly, even if Judge Dewane purported to make a binding interpretation of Judge Kolenda's opinion and order, Judge Dewane did not have the authority to do so. Finally, although the trial court could properly enter a stay after defendants' appeal, see MCR 7.208(F) and MCR 7.209(E), such stays are subject to review by this Court even without a direct appeal, MCR 7.209(D). Thus, defendants would not have had to directly appeal Judge Dewane's stay in order to challenge it on appeal. Consequently, defendants have not waived their right to challenge the propriety of Judge Kolenda's opinion and order by failing to appeal Judge Dewane's stay. C. Public Prescriptive Easement It is well established in Michigan that a public entity can directly acquire title to property from a private owner through adverse possession or obtain a prescriptive easement in the same way that a private party can. See, e.g., Jonkers v Summit Twp, 278 Mich App 263; 747 NW2d 901 (2008) (holding that township acquired the land occupied by a boat launch through adverse possession); Village of Manchester v Blaess, 258 Mich 652; 242 NW 798 (1932) (holding that the village failed to establish that it acquired a prescriptive easement over the land at issue as a highway or as a parking lot); Bachus v West Traverse Twp, 107 Mich App 743; 310 NW2d 1 (1981) (indicating that township failed to establish adverse possession to a park), remanded to circuit court 412 Mich 870, remanded to Court of Appeals 413 Mich 914 (1982); Bachus v West Traverse Twp (On Remand), 122 Mich App 557; 332 NW2d 535 (1983); see also Restatement 3d, Property, Servitudes,

Download MICHAEL BENNINGHOFF V JOHN D TILTON.pdf

Michigan Law