Fry v. Kaiser, Docket No. 19342

• Decision Date: 24 April 1975
• Docket Number: Docket No. 19342,No. 2,2
• Parties: Colby B. FRY, Plaintiff-Appellee, v. Julius F. KAISER et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 673

232 N.W.2d 673

60 Mich.App. 574

Colby B. FRY, Plaintiff-Appellee, v. Julius F. KAISER et al., Defendants-Appellants.

Docket No. 19342.

Court of Appeals of Michigan, Division No. 2.

April 24, 1975.

Released for Publication July 24, 1975.

Leave to Appeal Denied Aug. 6, 1975.

Yoe, Casey & Moore by John H. Yoe, Detroit, for defendants-appellants; Ulysses S. Bratton and Lewis Brooke, Detroit, of counsel.

Ray W. McPeters, Mt. Clemens, for Kaisers and other individuals.

Jerry Michael Ellis and Peter E. Bec, Detroit, for Mfrs. Nat'l Bk.

Leithauser & Leithauser, East Detroit, for Capitol S&L.

Dykema, Gossett, Spencer, Goodnow & Trigg by Garry G. Carley, Birmingham, for Standard Fedlk S&L.

Ross, Bruff & Rancilio, Mt. Clemens, for Harrison Twp.

Frank I. Kennedy, Detroit, for Detroit B&T and Designing Eng.

Before QUINN, P.J., and BASHARA and MAHER, JJ.

BASHARA, Judge.

This is an appeal from a summary judgment granted to defendants in an action brought by plaintiff for a determination of who owns a channel and an abutting 5-foot strip of land. The case is unusual because each party contends the other owns the property.

A description of the property and a chronology of events are necessary for the disposition of this action.

Plaintiff, one of the original developers and successor in interest, constructed a subdivision known as Point Rosa Subdivision and Point Rosa Subdivisions 1--5 in Harrison Township. This appeal only involves Point Rosa No. 1. Defendants are homeowners in the subdivision, various mortgage holders, the Township of Harrison and homeowners in Fresh Air Park Subdivision. The trial court entered a final judgment on December 26, 1973 finding that plaintiff owned the channel and the 5 feet.

In 1950 plaintiff had the property platted and subdivided into six subdivisions. With the exception of one subdivision, they are surrounded by canals which lead into Lake St. Clair. Plaintiff has sold all the lots with homes constructed thereon, except one which he retained as his residence. Point Rosa Subdivision one is bordered on the east by channel number two and on the west by channel number one. Channel number one is designated on the plat as 39 feet in width, whereas testimony revealed it is 34 feet wide with 5 feet remaining in its natural state furnishing lateral support to Elm Road. Elm Road runs in a north-south direction the entire length of channel number one. West of it is another subdivision known as Fresh Air Park Subdivision. The 5 feet in dispute are on the opposite side of channel number one from the location of Point Rosa Subdivision number one and east of Elm Road.

Plaintiff argues that the dedicatory provisions on the recorded plat of Point Rosa when taken in conjunction with the warranty deeds given to grantors show that he conveyed title to the channel and the 5-foot strip of land to defendant Point Rosa number one lot owners.

We reject plaintiff's contention. The recorded plat contained the following language: '(A)ll lots extended to the waters edge but not beyond the boundaries of the plat.' Also provided in the plat was the following language:

'(T)he streets as shown on said plat are hereby dedicated to the public and that the channels as shown on the said plat are hereby Dedicated to the use of the lot owners.' (Emphasis supplied.)

Where a plat is recorded the purchasers receive not only the interest as described in their deed, but also whatever rights as are indicated in the plat. See Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344 (1939). If a deed contains no ambiguities, then as a general rule it must be construed according to its terms. Michaels v. Chamberlain, 26 Mich.App. 317, 182 N.W.2d 360 (1970).

The language contained in the plat makes it abundantly clear that the plaintiff conveyed to defendants only to the waters edge. He retained legal title to the land beneath channel number one and the five feet abutting it.

Further, even if we were to assume the plaintiff's conveyances were ambiguous as to who owns the channel, his acts can leave no doubt. The evidence disclosed that in 1964 defendant attempted to sell the land in dispute to the individual owners of Fresh Air Park Subdivision. Defendant also, as so ordered in prior litigation, installed a sea wall along the entire length of the western edge of the first channel at his own expense.

Our holding plaintiff owns the land lying beneath channel number one and the 5 feet abutting it does not necessitate the conclusion that he must maintain or repair the western sea wall. The defendant homeowners concede in their appellate brief they have the responsibility to maintain the sea walls in front of their property. They also admit that they collectively are obligated to pay for the dredging of the canals.

The trial judge held that plaintiff was required to maintain the western sea wall. His determination was based upon a prior litigation captioned Pointe Rosa Sportsmen's Club et al. v. Stanley E. Fry, Macomb County Circuit Court file No. 27--482 (1961). It appears the trial court held that res judicata barred plaintiff from denying his obligation.

The doctrine of res judicata only applies to bar a subsequent action if the prior action was rendered on the merits, on the same matter in issue and between the same parties or their privies. Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550 (1949); Hewett Grocery Co. v. Biddle Purchasing Co., 289 Mich. 225, 286 N.W. 221 (1939); Mazzola v. Vineyard Homes Inc., 54 Mich.App. 608, 221 N.W.2d 406 (1974).

We are unable to determine from the record before us whether or not the prior litigation was between the same parties or their privies and whether the issues there were the same as in this case. Our inability to make this determination does not require that this case be remanded. Whether we examine this problem from a res judicata analysis or for independent analysis we come to the same conclusion. That is, defendant Point Rosa number one lot owners must maintain the western sea wall. If we are to assume as the trial judge concluded that res judicata does apply, we hold the trial judge erred in his interpretation of the opinion written in the previous case. The pertinent part of that opinion reads:

'IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Defendant pay or cause to be paid to the Plaintiffs herein, their pro-rated share for the dredging, maintenance, and upkeep of said canals and channels to and from the waters of Lake St. Clair, until such time as the Defendant disposes of their interest in the said Subdivisions, provided at which time the successors in interest of said Defendants, will have assumed said liability to pay their...