729 Fed.Appx. 401 (6th Cir. 2018), 17-1970, Johnson v. APJ Properties, LLC
|Citation:||729 Fed.Appx. 401|
|Opinion Judge:||JOHN K. BUSH, Circuit Judge.|
|Party Name:||Eldon E. JOHNSON, Trustee of the Pamela B. Johnson Trust, Plaintiff-Appellant, v. APJ PROPERTIES, LLC, a Michigan limited liability company, Defendant-Appellee.|
|Attorney:||Dennis C. Kolenda, Charles Nicholas Curcio, Timothy A. Stoepker, Attorney, Dickinson Wright, Grand Rapids, MI, for Plaintiff-Appellant Brett Michael Gelbord, Pepper Hamilton, Southfield, MI, for Defendant-Appellee|
|Judge Panel:||BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.|
|Case Date:||April 05, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Dennis C. Kolenda, Charles Nicholas Curcio, Timothy A. Stoepker, Attorney, Dickinson Wright, Grand Rapids, MI, for Plaintiff-Appellant
Brett Michael Gelbord, Pepper Hamilton, Southfield, MI, for Defendant-Appellee
BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge.
Good easements do not always make good neighbors. And, as the present case makes clear, neither does sharing a bucolic lakeshore in the northern reaches of Michigan. Defendant APJ Properties, LLC ("APJ"), and the Pamela B. Johnson Trust (the "Trust"),1 neighboring landowners on Round Lake in Charlevoix, Michigan, have sparred in court for more than a decade. Today we decide whether, through annexation of additional land to its property, the dominant estate, APJ has exceeded the scope of a prescriptive easement appurtenant that burdens the Trusts property for the benefit of APJs property. Fatal to the Trusts claim is that it fails to allege that this annexation has led to any actual increase in or modification to APJs use of the easement. We therefore affirm the district courts dismissal of the Trusts complaint for failure to state a claim.
APJ owns 304 East Dixon Avenue. APJs neighbor is the Trust, which owns 306 East Dixon. Formerly to the west of 304 East Dixon was 300 East Dixon, a plot of land that APJ also owned but that APJ annexed to 304 East Dixon in 2010 to create a larger, unified 304 East Dixon. And to the west of that was yet another parcel of land also owned by APJ, 212 East Dixon.
In 2003, APJ successfully sued the Trust to establish a prescriptive easement over a two-track path that cuts along the littoral southern boundary of the parties properties. The scope of APJs easement over 306 East Dixon is coterminous with the easements "historical[ ] use[ ] as reflected in the [Michigan state court records], which includes, but [is] not limited to[,] motor vehicle traffic, foot traffic and nonmotorized vehicle traffic."
APJ annexed 300 East Dixon in 2010 and constructed a boathouse on the newly combined parcel in 2011, prompting the Trust to sue APJ in state court. The Trust claimed that use of the easement by APJs construction vehicles exceeded the easements historically established scope. The suit was dismissed after a bench trial, the Michigan Court of Appeals affirmed the dismissal, and the Michigan Supreme Court declined review.
In 2015, APJ decided to add a wraparound porch and other improvements, including a bedroom over the garage, a fireplace and chimney, a patio and walkways, and outdoor stairs to the already-built house on 304 East Dixon. It encountered an obstacle: the City of Charlevoix denied a building permit because the new additions would violate the Citys setback requirements. But APJ found a way: by annexing 212 East Dixon to 304 East Dixon (creating a yet larger 304 East Dixon), APJ would satisfy the Citys setback requirements and gain approval to build the additions. So APJ granted itself a quitclaim deed to 212 East Dixon, taking care to state expressly that its easement over the Trusts land was excluded from the conveyance. Problem solved? Not so fast. No sooner had the City granted APJs renewed application than the Trust lodged an appeal of that grant. The Trust lost. And it lost its challenge to the grant in state court, too.
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