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STATE OF MICHIGAN
COURT OF APPEALS


RUSSEL WARNER; MARY WARNER; RICHARD DE LANO; PATRICIA DE LANO; D. SCOTT HOLKEBOER; JULIE HOLKEBOER; WILLIAM SPENCE; REBECCA SPENCE; ROBERT TYLER; MARLENE PLUMMER, Individually and as Trustee of the MARLENE M. PLUMMER TRUST; ROBERT FULTON; ROBERT HEFFNER; MELANIE HEFFNER; DONALD HOFFMAN; DONNA BAILEY; and KAAREN DEWITT, Plaintiffs-Appellees, v JAMES SCAVO and HEATHER M SCAVO, Defendants/Third-Party PlaintiffsAppellants,

UNPUBLISHED June 10, 2008

No. 274266 Allegan Circuit Court LC No. 05-037930-CH

v RIVERTOWN BUILDERS, LLC, Third-Party Defendant-Appellee.

Before: Markey, P.J., and Meter and Murray, JJ. PER CURIAM. Defendants appeal by right from the trial court's orders entering judgment for plaintiffs and granting partial summary disposition in favor of third-party defendant Rivertown Builders (Rivertown). We affirm. Green Lake Park is a platted subdivision located in Allegan County on land that forms a peninsula into Green Lake. In 1893, the Green Lake Park Association (the Association) established and recorded the plat. The plat consisted of numbered lots one to 44, designated additional common areas as the Court, Park Place, and Shore Commons, and named at least five

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streets. In 1897, the Association replatted Green Lake Park to divide Park Place into lots 45 to 60 and the Court into lots 61 to 71. Today, many residents of Green Lake Park have docks off of Shore Commons. There are no provisions contained within any of the Green Lake Park residents' deeds regarding their rights to access Short Street and Shore Commons. The plats are silent with regard to any dedication, public or private, of Short Street and Shore Commons. The Green Lake Park residents, however, have an understanding that they have access rights to Short Street and Shore Commons, which derive from their ownership of plat lots and a 1966 judgment, where the Allegan Circuit Court ruled that Short Street was a private street for the use of all of the lot owners in Green Lake Park plat as replatted in 1897. Bailey v Miedema, unpublished judgment of the Allegan Circuit Court, entered December 29, 1966 (Docket No. 1/1127). According to that judgment, those lots owners "have an easement appurtenant to their respective lots over said Short Street, for the purpose of traveling from Main Street . . . to Shore Commons and Green Lake for ingress and egress to and from Shore Commons and Green Lake." Id. Further, the Green Lake Park plat owners "have an easement appurtenant to their respective lots, in common, for the use of Shore Commons for park purposes, for gaining access to Green Lake, for bathing and launching boats on Green Lake, for docking boats, for holding picnics thereon, and for any other purposes not inconsistent with park purposes." Id. Defendants' residence is located in the Rose Hill Addition to Green Lake Park. The Rose Hill Addition was platted in 1921, but its proprietors were not involved in the Green Lake Park plat, which is not referenced in the Rose Hill Addition plat. The Rose Hill Addition does not abut Green Lake Park or Green Lake. The Hahn Addition separates the Rose Hill Addition from Green Lake Park. The plat of Rose Hill Addition does not mention either Short Street or Shore Commons. Defendants wanted to place a dock on Shore Commons, and for a time, plaintiffs (various lot owners in Green Lake Park plat) allowed defendants to do so. Later, however, plaintiffs obtained an attorney's opinion regarding their legal rights to Short Street and Shore Commons. In sum, the opinion, following the language from the Bailey judgment, provided that plaintiffs held easements rights over Short Street and Shore Commons, and the easement rights were limited to owners of lots in Green Lake Park plat, as amended in 1897. Thus, according to the legal opinion, defendants, as lot owners in Rose Hill Addition, did not have easement rights over Short Street and Shore Commons. Plaintiffs wrote a letter to the lot owners of the Rose Hill Addition and the Haan Addition, requesting those individuals, including defendants, cease and desist any use of Short Street and Shore Commons. When defendants refused, plaintiffs filed this action seeking declaratory and injunctive relief, as well as nominal damages. Defendants filed a third-party complaint against Rivertown, the entity that sold defendants their Rose Hill Addition residence, alleging misrepresentation and violation of the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. Defendants asserted that Rivertown made representations that Rose Hill Addition lot owners had water access through Short Street and Shore Commons. Before the bench trial commenced, the trial court granted partial summary disposition to Rivertown pursuant to MCR 2.116(C)(10) as to defendants' misrepresentation, rescission, and reimbursement claims. After trial, the trial court ruled in favor of plaintiffs, concluding that: -2-


Plaintiffs are entitled to a declaratory judgment stating that [defendants] have no legal right to use any common areas of Green Lake Park including Short Street and Shore Commons; an injunction permanently enjoining [defendants] from placing a dock on Shore Commons; and nominal damages for trespass. [Defendants] are entitled to $250.00 for Rivertown's violation of the MCPA together with costs and attorney fees accrued in connection with their third-party complaint. [Trial court opinion, 08/15/2006, p 6.] Defendants now appeal. This Court will address first the issues involved in the plaintiffs' action and then the issues implicated in the third-party action. Defendants first argue that the trial court erroneously concluded that plaintiffs possessed an easement over Short Street and Shore Commons. This Court reviews de novo a trial court's ruling on an equitable matter. Blackhawk Dev Corp v Dexter Village, 473 Mich 33, 40; 700 NW2d 364 (2005). But the extent of a party's rights under an easement is a question of fact, and we review for clear error the trial court's factual determinations. Id. A trial court's finding is clearly erroneous when although there is evidence to support the finding, this Court is left with the definite and firm conclusion that a mistake has been made. Heindlmeyer v Ottawa Co Concealed Weapons Licensing Bd, 268 Mich App 202, 214, 222; 707 NW2d 353 (2005). Easements may be created by express grant, by reservation or exception, by covenant or agreement, or be acquired by prescription. Heydon v MediaOne of Southeast Mich, Inc, 275 Mich App 267, 270; 739 NW2d 373 (2007). An easement is "a right to use the land burdened by the easement rather than a right to occupy and use the land as an owner." Dep't of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378; 699 NW2d 272 (2005) (citations omitted). An easement is a limited property interest that is generally confined to a specific purpose. Id. at 378-379. An "easement holder is said to enjoy all rights reasonably necessary and proper to fully use the easement." Id. at 403. In the instant action, the trial court relied extensively on the decision in Bailey, finding that "Short Street, Shore Commons and the other areas within Green Lake Park are private, rather than public." The trial court also found that "the plat is silent as to dedication, and defendants did not present any evidence suggesting the proprietor intended to make a public dedication." Moreover, the trial court reasoned that even if the proprietor intended to dedicate the plat's roads to the public, there was no evidence that the public authorities accepted such alleged dedication. The trial court then opined: Perhaps the best evidence that Short Street and Shore Commons are private, however, is a prior judgment involving these same areas. In Bailey v Miedema, a group of lot owners in Green Lake Park brought an action to enjoin another lot owner from closing Short Street. Although joined as a defendant, the Road Commission defaulted. The court entered a declatory [sic] judgment finding as follows: "That Short Street lying south of lots 27 and 20, and north of lot 43, as shown on Green Lake Park Plat recorded in the Office of the Register of Deeds . . . is a private street for the use of all of the lot owners in said plat, and that Plaintiffs, as well as other lot owners in said plat, including the lot owners in any portion of -3-


said plat which was replatted, have an easement in common appurtenant to their respective lots over said Short Street, for the purpose of traveling from Main Street . . . to Shore Commons and Green Lake for ingress and egress to and from Shore Commons and Green Lake." [Trial court opinion, 08/15/2006, p 3, quoting Bailey, supra at 2.] We agree. Nothing in the record supports that there was a valid public dedication of the streets or common areas in the 1893 or 1897 plats of Green Lake Park. "Generally, a valid statutory dedication of land for a public purpose requires two elements: (1) a recorded plat designating the areas for public use; and (2) acceptance by the proper public authority." Higgins Lake Prop Owners Ass'n v Gerrish Twp, 255 Mich App 83, 113; 662 NW2d 387 (2003). At common law, unless an owner intentionally dedicates a road for public use and the public authorities accept the dedication, the roads remain private. Missaukee Lakes Land Co v Missaukee Co Rd Comm, 333 Mich 372, 377-380; 53 NW2d 297 (1952). The plat here is silent with respect to designating streets and common areas for public use. Thus, even without an express private dedication, caselaw supports concluding that the common areas were dedicated to the use of the lot owners. See Schurtz v Wescott, 286 Mich 691, 697; 282 NW 870 (1938). Moreover, Michigan caselaw provides that lot owners hold easements in privately dedicated common areas and streets. See Kirchen v Remenga, 291 Mich 94, 108; 288 NW 344 (1939). More recently, our Supreme Court has held 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." Little v Hirschman, 469 Mich 553, 564; 677 NW2d 319 (2004). We conclude the trial court did not err in finding that Short Street and Shore Commons were private, because the common areas in Green Lake Park were not dedicated for public use; therefore, the common areas remained private. While the trial court did not expressly find that plaintiffs held easements in the common areas, plaintiffs hold "at least an irrevocable easement in the dedicated land." Id. In fact, plaintiffs hold easements appurtenant. "The purchasers of lots in the original plat took not only the interest of the grantor in the land described in their respective deeds, but, as an incorporeal hereditament . . . appurtenant to it, took an easement in the streets, parks and public grounds mentioned and designated in the plat . . . ." Kirchen, supra at 108 (citation omitted). "An easement appurtenant is one `created to benefit another tract of land, the use of easement being incident to the ownership of that other tract.'" Carmody-Lahti Real Estate, supra at 378 n 40, quoting Black's Law Dictionary (7th ed). Defendants next argue that plaintiffs did not have standing to maintain a trespass action. We disagree. This Court reviews de novo whether a party has standing. Mich Citizens for Water Conservation v Nestle Waters North America Inc, 479 Mich 280, 291; 737 NW2d 447 (2007). We view this issue as not so much whether plaintiffs have standing, but whether the trial court used the proper nomenclature. A trespass occurs when a person's interest in the exclusive possession of his land is invaded. Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 508; 686 NW2d 770 (2004). "In order to recover for trespass, a plaintiff must have title to or actual possession of the land on which the trespass is claimed." Id. An easement is the right to use, not occupy or possess, the burdened land. Carmody-Lahti Real Estate, supra at 378. Nevertheless, plaintiffs clearly have standing to enforce their easement rights. Plaintiffs possess an interest in the property in question and assert that defendants have violated their easement -4-


rights, especially their recreational use of Shore Street and Shore Commons. "Standing may be proven by showing that the `[defendants'] activities directly affected the [plaintiffs'] recreational, aesthetic, or economic interests.'" Kallman v Sunseekers Property Owners Ass'n, L.L.C., 480 Mich 1099; ___ NW2d ___ (2008), quoting Michigan Citizens, supra at 296. Whether it is proper to refer to the interference with an easement as a "trespass" is debatable. The broad definition of a "trespass" is any "unlawful act committed against the person or property of another; esp., wrongful entry to another's property." Black's Law Dictionary (7th ed), p 1508. Further, our Supreme Court has referred to the obstruction of an easement as a "trespass." In Longton v Stedman, 182 Mich 405; 148 NW 738 (1914)(Longton I), the defendant erected a brick building right up to his property line, obstructing a five-foot strip of property reserved as a part of a joint easement with the adjoining property. Id. at 410. The Court referred to this building erected on the defendant's own property as an "encroachment and trespass." Id. at 415. On remand, the trial court ordered the defendant to remove the offending building from the easement. See Longton v Stedman, 196 Mich 543, 544; 162 NW 947 (1917) (Longton II). The Longton II Court rejected the defendants' statute of limitations "demurrer" opining: A sufficient answer to this contention is found in the fact that plaintiffs' action is not based on any covenant. It is an action in which plaintiffs seek by the aid of a mandatory injunction to abate and restrain a continuing trespass. This action is open to plaintiffs at any time until the trespasser has extinguished the easement claimed by plaintiffs by adverse possession 15 years. [Longton II, supra at 545 (emphasis added).] On the other hand, our Supreme Court has held that trespass will not lie for the obstruction of an easement, explaining in Hasselbring v Koepke, 263 Mich 466, 476; 248 NW 869 (1933): Ejectment will not lie to recover an easement. Trespass to try title will not lie because there is no breach of the owner's possession. A party need not submit to an invasion of his rights and content himself with suing on the case for damages. Plaintiffs' remedy, if any, is in equity. [Id. (citations omitted).] This Court relied on Hasselbring, among other decisions, in holding the plaintiffs could not "maintain an action in trespass quare clausum fregit (q.c.f.)"1 against the defendant in possession of the property burdened with the easement for its obstruction. Tittiger v Johnson, 103 Mich App 437, 440-441; 303 NW2d 26 (1981). The Court held that for the plaintiffs to bring such an action, the plaintiffs would have "to establish that their rights in the easement equated to possession or title in the subject parcel." Id. at 440. Arguably, plaintiffs here made such a showing because their easement rights were exclusive and the fee owner, the Green Lake Park Association, has been defunct since 1923.

A trespass quare clausum fregit (q.c.f.) is defined as "[a] person's unlawful entry on another's land that is visibly enclosed." Black Law Dictionary (7th ed), p 1509.

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We need not decide in this case whether it is proper to refer to such an action as one for trespass. As noted already, plaintiffs have standing to bring an action for the interference with their easement rights and may seek equitable relief or money damages. "For interference with an easement, the owner of it may sue for damages, for an injunction, or both." 25 MLP, Real Property,

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