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STATE OF MICHIGAN COURT OF APPEALS

WILLIAM H. BEDFORD, SR., CAROL H. BEDFORD, B. HARDY BEDFORD, SHARON BEDFORD, MARY M. HOBAN, Trustee, MARY M. HOBAN REVOCABLE LIVING TRUST, MARY FRANCES FALENDER, Trustee, FRAN FALENDER TRUST, MARY S. VALLANCE FRANCO, HARVARD W. VALLANCE, and ELIZABETH J. VALANCE, Co-Trustees, THEODORE R. VALLANCE TRUST, JAMES T. BAKER, MARY L. BAKER, ROBERT J. GARRISON, SUSAN A. GARRISON and EB ALLEN COTTAGE LLC, Plaintiffs-Appellants, v JOAN YVONNE ROGERS, Trustee, JOAN YVONNE ROGERS TRUST, Defendant-Appellee.

UNPUBLISHED April 17, 2012

No. 299783 Benzie Circuit Court LC No. 09-008746-CH

Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ. PER CURIAM. Plaintiffs appeal as of right the trial court's order denying their motion for summary disposition and granting defendant's cross-motion for summary disposition. For the reasons set forth in this opinion, we affirm. I. FACTS AND PROCEDURAL HISTORY The parties are owners of real property in the platted subdivision of Glen Eyrie, located on Crystal Lake in Benzie County. According to both the plat, recorded in 1920, and the parties' deeds, the individual lots do not extend to the shore of Crystal Lake. Rather, the plat depicts a 100-foot wide strip of land, running the entire length of the subdivision and designated as the "lakeway," between the south line of the platted lots and Crystal Lake. The plat provides that, along with "the drive, court, [and] spring road" depicted in the plat, this lakeway is "hereby -1-

dedicated to the common use of property owners in Glen Eyrie plat." At some point in time subsequent to the recording of the plat, Crystal Lake Drive came to be located parallel to, and partially within, the lakeway. Surveys conducted in May 2001 and January 2010 indicate that the parties' lots terminate, and the lakeway begins, at the approximate center of Crystal Drive, such that one half of the paved surface, together with the statutorily imposed roadway easement extend into the lakeway, reducing the width of the lakeway as platted to approximately 67 feet along the entire length of the subdivision. Over time, the forces of nature eroded portions of the lakeway such that, at certain points, there is little land remaining between the lakeside edge of Crystal Lake Drive and the Crystal Lake shoreline. Historically, a number of owners in the plat constructed small boathouses or storage sheds in the lakeway in front of their respective lots. When defendant purchased her lot in 1987, there was a boathouse, approximately 20 by 28 foot in size, in the lakeway in front of her property. In September 2009, defendant submitted an application for a land use permit to the township to construct a new 28 by 34 foot "Boat House" in the lakeway, to replace the existing, smaller boathouse. The township issued the permit on September 16, 2009. In October 2009, defendant demolished the old boathouse and began constructing her replacement structure. Defendant's new structure had heat, running water, toilet facilities, a kitchenette, an extensive workshop, and a second floor cupola to allow for a view of Crystal Lake. On November 20, 2009, plaintiffs, through an attorney, wrote a letter asking defendant to cease construction of the structure based on the language in the plat dedicating the "lakeway . . . to the common use of property owners" in the plat. The record establishes that, at the time plaintiffs sent this letter to defendant, construction of the new structure was in its very early stages, consisting only of a cement slab and some initial studding. Defendant declined to halt construction. On December 11, 2009, the Lake Township Zoning Administrator wrote defendant a letter advising her that the building violated the township's zoning ordinance, because it "includes substantial space designated by the [] Building Department as living quarters," and that, accordingly, a stop work order was being issued. Defendant appealed the zoning administrator's decision to the Zoning Board of Appeals, and on April 14, 2010, the Zoning Board of Appeals passed a resolution "that the structure known as a Boat House/Beach House be allowed as a compatible non-commercial recreational facility" under certain conditions, which included removal of certain residential features but did not include removal of the cupola.1 After construction of the new structure was completed, plaintiffs filed a complaint against defendant for trespass and nuisance. Thereafter, the parties filed cross-motions for summary disposition. Plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(9) and (10), arguing, in relevant part, that the plat dedication granted the property owners within the plat an

The conditions imposed by the Board of Appeals included that defendant remove a certain wall to create a larger workshop area, eliminate the tub and shower from the proposed bathroom, and limit the kitchen "to a sink with running water," a microwave, coffee pot and small refrigerator, "but no fixed kitchen appliances, such as a garbage disposal, built-in or single appliance, stove or oven."

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irrevocable easement over the lakeway property and prevented defendant from exclusively using the portion of the lakeway in front of her lot by constructing a new structure that expanded the footprint of the old boathouse. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing, in relevant part, that under Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985), she owned the portion of the lakeway between her lot and the lakeshore in fee simple subject to an easement in favor of plaintiffs, that, accordingly, she had the right to make reasonable exclusive use of that portion of the lakeway, and that the new structure did not unreasonably interfere with plaintiffs' limited easement rights in the portion of the lakeway owned by defendant. The trial court granted defendant's motion and denied plaintiffs' motion, stating on the record: [T]he court's ruling would be different without the historical placement of these boathouses. [Plaintiffs' counsel] is entirely correct in his citation to . . . a strong line of cases, that where there's a plat that makes a dedication, the dedication becomes irrevocable upon sale of lots by reference to the plat. [Defense counsel] and co[-]counsel are correct in this strong line of cases about easements and fee, and the reasonable use of the fee holder so as not to interfere with the exercise of the rights of the holder of the easement. It seems to me this court has really only two choices in this case. The court can say summary disposition for plaintiff[s] that this defendant, when [s]he

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