Cantieny v. Friebe

• Decision Date: 29 November 1954
• Docket Number: No. 37,37
• Citation: 341 Mich. 143,67 N.W.2d 102
• Parties: Nicholas H. CANTIENY and May E., also known as Maude Cantieny, his wife, individually and as agents on Adolph G. Bahlau and Ann Bahlau, his wife, Plaintiffs-Appellees, v. Ernest C. FRIEBE and Maude Friebe, husband and wife, jointly and severally, their agents and servants, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 102

67 N.W.2d 102

341 Mich. 143

Nicholas H. CANTIENY and May E., also known as Maude Cantieny, his wife, individually and as agents on Adolph G. Bahlau and Ann Bahlau, his wife, Plaintiffs-Appellees, v. Ernest C. FRIEBE and Maude Friebe, husband and wife, jointly and severally, their agents and servants Defendants-Appellants.

No. 37.

Supreme Court of Michigan.

Nov. 29, 1954.

J. Russell Hughes, Harrisville, for plaintiffs and appellees.

Bernard S. Frasik, Bay City, for defendants and appellants.

Before the Entire Bench.

BUSHNELL, Justice.

Defendants Ernest C. Friebe and his wife, Maude Friebe, have appealed from an order of the circuit court for the county of Alcona, which was entered on August 27, 1953. As a result of this order a temporary injunction obtained by plaintiffs Nicholas H. Cantieny and his wife, May E. Cantieny, individually and as agents of Adolph G. Bahlau and his wife, Ann Bahlau, on June 20, 1953, was made permanent.

This temporary injunction restrained defendants, their agents and assigns, from erecting, closing or locking any gates upon a road which extends northerly from State highway M-72 to the Cantieny and Bahlau properties on the west side of Crooked Lake.

This suit was brought on June 17, 1952, and a decree was entered on November 10, 1952, which resulted in the establishment of a new way of ingress and egress to plaintiffs' property. The issue now before us, on a petition to interpret this decree, is whether the erection of 4 locked gates on this right of way by the defendants is an unreasonable interference with plaintiffs' use of their way of necessity.

Defendants rely chiefly on the holding in Moore v. White, 159 Mich. 460, 124 N.W. 62, 64, which involved cultivated farm land over which a way of necessity was claimed. In the light of the facts of that case the Court said:

'Under present conditions, when lands are enclosed and premises used for pasture or otherwise, to allow defendants to go over the entire tract wherever they pleased would be inequitable. The right is held to be in the owner of the servient estate to locate such a way of necessity. He has refused to exercise this right and defendants have done so, * * *. Defendants have a right to make it passable for the uses necessary to its full enjoyment, and nothing more. They must keep it in repair, and provide such gates at both ends as will prevent animals from straying in and complainant's stock from escaping from the premises.'

The facts in the instant case, involving cut-over land and access to lake properties, are clearly distinguishable. Under the rule that such cases must stand on their own facts, the holding in Harvey v. Crane, 85 Mich. 316, 322, 48 N.W. 582, 583, 12 L.R.A. 601, is applicable. In that case the Court said:

'What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to plaintiff's beneficial use and enjoyment, are questions of fact to be determined by the trial court or jury.'

It is fundamental that, in reviewing chancery cases, we hear the case de novo, nevertheless consideration and weight should be given to the conclusion reached by the trial judge. James v. Milks, 338 Mich. 555, 61 N.W.2d 606. See, also, Austin v. Painters' District Council, 339 Mich. 462, 64 N.W.2d 550, and Fitch v. Taklo, 339 Mich. 701, 64 N.W.2d 627.

In Unverzagt v. Miller, 306 Mich. 260, 10 N.W.2d 849, 851, where plaintiff and other cottage owners sought to restrain defendant from interfering with their free and unrestricted use of streets in a summer resort area, the Court said:

'The rights of the cottage owners must be measured and defined by the purpose and character of the easement. There must be a due and reasonable enjoyment by both parties--those who hold the dominant right, as well as those who own the fee. * * * The necessity and reasonableness of the use made of the easement by the dominant estate are questions of fact, limited only by what may be deemed necessary and reasonable to the enjoyment of the easement.'

The respective rights and obligations of dominant and servient owners are stated in Hasselbring v. Koepke, 263 Mich. 466, 475, 248 N.W. 869, 872, 93 A.L.R. 1107, as follows:

'In this state 'the rights of the owner of the easement are paramount, to the extent of the grant, to those of the owner of the soil.' Harvey v Crane, 85 Mich. 316, 48 N.W. 582, 583, 12 L.R.A. 601. No right of prospect is recognized by the law of this state. * * * It is settled that the...