Greenspan v. Rehberg, Docket No. 16358

• Decision Date: 06 November 1974
• Docket Number: Docket No. 16358,No. 2,2
• Citation: 56 Mich.App. 310,224 N.W.2d 67
• Parties: Marshall J. GREENSPAN et al., Plaintiffs-Appellants, v. Carl E. REHBERG and Elsa D. Rehberg, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 67

224 N.W.2d 67

56 Mich.App. 310

Marshall J. GREENSPAN et al., Plaintiffs-Appellants, v. Carl E. REHBERG and Elsa D. Rehberg, Defendants-Appellees.

Docket No. 16358.

Court of Appeals of Michigan, Division No. 2.

Nov. 6, 1974.

Released for Publication Dec. 18, 1974.

Leave to Appeal Denied Jan. 22, 1975.

Irving F. Keene, Sugar, Schwartz, Silver, Schwartz & Tyler, Southfield, for plaintiffs-appellants.

Crippen, Dever, Urquhart & Cmejrek, John R. Hathaway, Hooper, Hathaway, Fichera, Price & Davis, Ann Arbor, for defendants-appellees.

Before McGREGOR, P.J., and R. B. BURNS and SMITH ^*, JJ.

McGREGOR, Presiding Judge.

Plaintiffs are before this Court on leave granted, to appeal a decision of the circuit court which ordered plaintiffs, Inter alia, to construct a bridge over Traver Creek and taxed expenses against them for defendants' court and attorney fees. GCR 1963, 313.3.

Prior to 1963, the defendants owned two parcels of land within the city limits of Ann Arbor. The northerly boundary of both parcels is Plymouth Road; the southerly boundary is Jones Drive. Both parcels are traversed by Traver Creek, a natural watercourse, which flows through the property from the northeast to the southwest. The land is a valley, with the stream at the center. The grade from the stream to Plymouth Road is fairly shallow, while the grade from the stream to Jones Drive is steep.

The defendants operate a water bottling plant on the westerly parcel of the property. In order to provide access to the plant to themselves and their customers, defendants built a 12-foot wide gravel surface road which ran in a north-south direction between Jones Road on the south and Plymouth Road on the north. The waters of Traver Creek were carried under this roadway through two 30-inch concrete culverts.

In 1963, defendants listed the property for sale with a real estate broker, who produced Congress Management Company, consisting of Mr. Rogers and Mr. Ross, as a prospective purchaser. During the negotiations, the purchasers wanted to buy the roadway but defendants refused and offered a joint easement instead. On December 11, 1963, the preliminary discussions culminated in a preliminary purchase agreement between defendants and Ross and Rogers as purchasers. The following language was included in the agreement:

'It is agreed that the road on the south side of the above property running from Plymouth Road to Jones Drive is to be: (?) a joint drive between the purchaser and the seller, twenty-four feet wide, initial paved surface and Culvert tile to be paid by the purchaser and all subsequent maintenance to be paid equally by the purchaser and seller as joint users; addition of 12 feet to be on north side of present road.' (Emphasis added.)

The purchase agreement of December 11, 1963 was to be consummated by February 14, 1964, by the execution of a short-term land contract running to January 1, 1965, on which date the entire purchase price was to be paid. A few days after the execution of the purchase agreement between defendants and Congress Management Company, the plaintiffs began negotiations with Congress Management for the purchase of the land. The plaintiffs had no meetings with defendants at this time and all discussions concerning the land were held with Mr. Rogers, of Congress Management, who represented himself as the land contract purchaser, as evidenced by the purchase agreement of December 11. On January 22, 1964, a preliminary agreement was entered into between plaintiffs and Rogers and Ross, to purchase the same land that was then under negotiation of sale between defendants and Rogers and Ross.

On February 14, 1964, a land contract and deed were executed between the defendants and Rogers and Ross. The granting of the easement was formally accomplished as a part of the legal description, as follows:

'Granting a right-of-way, 24 feet wide, for use in common with others over the following described land:'

At the end of the legal description in this land contract, the following appears:

'Purchaser agrees to improve said right of way as provided in paragraph 'L' and parties hereto agree to maintain said right of way as provided in paragraph 'L' hereof.'

The conditions relating to the use and improvement of the right of way were included in paragraph 'L' of the land contract, which provided:

'Purchaser agrees to perform grading and initial paving of the surface of said right-of-way and in addition thereto To extend the present culvert completely across said right-of-way at purchaser's expense. Subsequent maintenance of said right-of-way to be paid equally by seller and purchaser thereof.' (Emphasis added.)

The warranty deed prepared the same day by defendants' attorneys contained no reference to the paragraph in the land contract concerning paving and culverts, and no covenant as to the improvement or maintenance of the right of way or culvert was contained in the deed.

On March 25, 1964, the land contract and deed were executed between plaintiffs and Rogers and Ross. On the same day, Rogers and Ross assigned their interests in the land contract entered into with the defendants to the plaintiffs. The agreements and deeds between Rogers and the plaintiffs contained no covenant or promise with reference to the easement, but merely stated the existence of a 24-foot-wide right-of-way for use in common with others over the described land.

On March 27, 1964, an escrow agreement was signed pursuant to which the deeds from defendants to Ross and Rogers, and from Ross and Rogers to plaintiffs, were placed in escrow, along with the Ross and Rogers-plaintiffs contract, and an assignment of the defendants-Ross and Rogers contract.

At some time prior to 1963, the land involved had been zoned for multiple dwelling apartments and was acquired by the plaintiffs for that purpose. After the plaintiffs acquired the property they retained architects and engineers to prepare land plans and perform the engineering preparatory to the construction of the apartments. During the construction of the apartments, plaintiffs paved and widened the roadway from 12 to 24 feet; plaintiffs also extended the culverts completely across the right-of-way. Further, pursuant to the recommendations of the engineers who designed the apartment project, one of the 30-inch culverts was replaced with a 78-inch culvert.

Between 1964 and 1968, plaintiffs assumed the entire maintenance of the road and made all necessary repairs; no contributions to maintenance or repairs was ever made by the defendants.

During the period from 1964 to 1968, several apartment complexes were built, the city of Ann Arbor built a golf course on drained swamp land which had normally retained storm waters, the University of Michigan extended its north campus, and a shopping center was completed on adjacent lands. All of this construction was upstream from the plaintiffs'-defendants' properties and drastically increased the amount of water normally emptied into and carried by Traver Creek.

In the summer of 1968, the apartment complex owned by the plaintiffs was subjected to a devastating flash flood as the result of increased runoff water from the Ann Arbor-drained swampland, the U of M north campus, and the upstream shopping center. The two culverts which had been installed by plaintiffs were partially blocked with debris from the upstream lands and the sanitary sewer was inundated and flooded onto plaintiffs' land. Water, debris and sewage rose to a level of several feet in the lower apartments in plaintiffs' apartment project. Repair costs amounted to $80,000. Late in 1968, the property was again threatened by floodwaters, and again in 1969, when Traver Creek flooded to within a few feet of the apartment buildings.

The Ann Arbor building department contacted plaintiffs and informed them that the culverts under the roadway were inadequate for the amount of water then being carried by Traver Creek. The city indicated that, if plaintiffs did not remove the culverts, it would take action to do so. As a result of this warning, a meeting was held at which the city officials, plaintiffs and defendants were present. During this meeting several alternatives were considered, including the dedication of the entire right-of-way to the city, the request of the city to install culverts or a bridge, creation of a special assessment district by the county, and the contribution by both parties to the cost of a bridge over the stream. The testimony is in conflict concerning what agreement, if any, was reached as a result of this meeting.

In the spring of 1969, the culvert was removed by plaintiffs, thus severing the roadway and preventing both plaintiffs and defendants from reaching Plymouth Road from the Jones Drive side of the stream. Defendants demanded that a bridge be built; plaintiffs requested contributions for the cost of such a bridge from defendants; this request was refused. No agreement was ever reached between plaintiffs and defendants as to the building of a bridge or the sharing of its cost.

After the culvert was removed, Jones Drive was the only entrance to defendants' property. Defendant testified that because of the sharp incline from Jones Drive to his plant, trucks entering and leaving could not negotiate the road from this entrance. Defendants' testimony consisted of the fact that bottles on various trucks were broken and that there was damage to some trucks making deliveries to the defendants' plant. The loss of these items totalled $1,532.38.

Following the severance of the defendants' access to Plymouth Road the defendants thereupon blocked the entrance from the right-of-way to the plaintiffs' apartment complex, thus denying their tenants and service vehicles access to the property via Jones Drive. The road remained open for defendants' trucks and vehicle services.

Plaintiffs filed a complaint in circuit court, requesting a permanent injunction restraining...