Gunther v. Apap
| Decision Date | 28 April 2022 |
| Docket Number | 354908,355248 |
| Parties | RICHARD GUNTHER, COURTENAY KONET, and WILLIAM E. MARCUS, Individually and as Trustee of WILLIAM E. MARCUS TRUST, Plaintiffs/Counterdefendants-Appellants/Cross-Appellees, v. CHAD APAP, Defendant-Appellee/Cross-Appellant, and MICHAEL K. STREHL, CASEY J. AMBROSE, CHRISTY BROWN-AMBROSE, also known as CHRISTY M. BROWN, also known as CHRISTY M. AMBROSE, and DIANA MAHACEK, Defendants/Counterplaintiffs-Appellees/Cross-Appellants. RICHARD GUNTHER, COURTENAY KONET, and WILLIAM E. MARCUS, Individually and as Trustee of WILLIAM E. MARCUS TRUST, Plaintiffs/Counterdefendants-Appellees/Cross-Appellants, v. CHAD APAP, Defendant-Appellant/Cross-Appellee, and MICHAEL K. STREHL, CASEY J. AMBROSE, CHRISTY BROWN-AMBROSE, also known as CHRISTY M. BROWN, also known as CHRISTY M. AMBROSE, and DIANA MAHACEK, Defendants/Counterplaintiffs-Appellants/Cross-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
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UNPUBLISHED
Oakland Circuit Court LC No. 2015-150606-CZ
Before: Letica, P.J., and Redford and Rick, JJ.
In these consolidated appeals, [1] following a bench trial, property owners appeal the trial court's opinion and order of judgment which determined that the parties did not own a 9-foot strip of land used as a pathway by back lot property owners to access the lake, but that plaintiffs and not defendants held riparian rights[2] to Walled Lake.[3] Plaintiffs, who own neighboring lakefront properties, sought to prevent defendants, back lot property owners, from maintaining a fence along the 9-foot pathway to the lake, placing a dock in the lake, and docking boats in the water long-term. In Docket No. 354908, plaintiffs Richard Gunther, Courtenay Konet, and William E. Marcus, individually, and as trustee of the William E. Marcus Trust (the trust), appeal as of right the trial court's judgment that the record evidence did not suffice to prove by a preponderance of the evidence that the trust owned the disputed 9-foot strip. Defendants Michael K Strehl, Casey J. Ambrose, Christy Brown-Ambrose, and Diana Mahacek (defendants) cross-appeal from the same order. In Docket No. 355248, defendants appeal as of right the same opinion and order, which held that they did not own the 9-foot strip, did not have riparian rights, and had interfered with plaintiffs' reasonable use of their respective riparian rights. Plaintiffs cross-appeal.
For the reasons stated in this opinion, we affirm the trial court's determinations but remand for further proceedings consistent with this opinion.
Lots 23 and 24 are neighboring lakefront properties on Walled Lake. Marcus resides on Lot 23, commonly known as 536 East Walled Lake Drive, Walled Lake, Michigan. Marcus obtained title to Lot 23 by warranty deed in 1996, quitclaimed the property to his trust in 1998, which quitclaimed it back to him in 2003 then in 2008 Marcus again quitclaimed the property to his trust. Each of these deeds' legal descriptions of the land specified that the transferor conveyed Lot 23 except the west nine feet of the property as set forth in the recorded plat. The record title indicates that three previous conveyances were made by Lot 23's owners by warranty deeds that also expressly excepted the west nine feet of the property as set forth in the recorded plat from conveyance to the purchasers. Before 1991, dating back to the 1930s, various deeds' and land contracts' legal descriptions specified that the grantors conveyed Lot 23 except 4½ feet for pedestrian purposes.[4]
The western nine feet of Lot 23 is a strip of land between Lot 23 and Lot 24 (the "9-foot strip"). The 9-foot strip runs from the lakeshore north to East Walled Lake Drive. Gunther and Konet own Lot 24. The record chain of title to their property indicates that they have no legal interest in the 9-foot strip and their predecessors in interest never held such interest.
Strehl owns back lot property commonly known as 523 East Walled Lake Drive (523), and Mahacek owns back lot property commonly known as 515 East Walled Lake Drive (515), both of which are situated on the north side of East Walled Lake Drive. The deeds in the record chains of title to both Strehl's and Mahacek's properties indicate interests in a right-of-way over the west nine feet of Lot 23. Neither of their respective chains of title indicate a conveyance of the 9-foot strip to any of their predecessors in interest. Mahacek's warranty deed by which her immediate predecessor in interest, Chad Apap, conveyed her 515, does not reference in its legal description the 9-foot strip. The 2009 warranty deed conveying 515 to Apap, however, specifies a right-of-way over the west nine feet of Lot 23. Strehl's chain of title to 523 indicates that his predecessors in interest stated in the deeds of conveyance that the conveyed land included a one-half interest in the west nine feet of Lot 23. Strehl's chain of title, however, does not contain any conveyance of any ownership interest in any portion of Lot 23. The chain of title documents in the lower court record indicate that deeds conveying title to 515 and 523 (formerly identified as Lots 3 and 4 in the recorded plat) reference a right-of-way over the west nine feet of Lot 23.[5]
Strehl and Mahacek use the 9-foot strip to access the lake. A split rail fence runs along each side of the 9-foot strip. Gunther erected the fence on Lot 24's eastern property line to resolve a dispute with back lot property owners.[6] Defendants or their predecessors in interest erected the other fence marking the border of the 9-foot strip on Lot 23. At the lakefront edge of the 9-foot strip, defendants erected a dock where they moored their boats. According to plaintiffs, the dock and defendants' boats extend beyond the 9-foot strip onto water located above the bottomlands in front of both of their properties.
Plaintiffs grew frustrated with defendants' mooring of boats overnight throughout the summer in front of plaintiffs' homes blocking their views of the lake. Consequently, plaintiffs brought suit in 2015 seeking to enjoin defendants from interfering with use of their property and views of the lake, from placing docks and boats that interfered with their riparian rights, from trespassing on their property, and an order that defendants return plaintiffs' property to its previous condition, plus award plaintiffs damages. Defendants moved for summary disposition which the trial court granted prompting plaintiffs to appeal. This Court summarized the grounds on which plaintiffs appealed as follows:
On appeal, plaintiffs argue that the trial court erred by granting summary disposition to defendants. Plaintiffs maintain that the trial court's determination regarding plaintiffs' lack of ownership in the 9-foot strip was incorrect and, in any event, not dispositive of plaintiffs' claims. Specifically, plaintiffs assert that the trust owns the 9-foot strip as demonstrated by the trust's chain of title. Even if the trust does not own the strip, plaintiffs assert that defendants may not trespass onto neighboring property and they emphasize that defendants' activities extend beyond the strip over bottomlands owned by plaintiffs, implicating plaintiffs' riparian property rights. Additionally, based on these same considerations, plaintiffs argue that amendment to add claims of nuisance and quiet title would not be futile, and thus the trial court abused its discretion by denying plaintiffs' request for leave to amend their complaint under MCR 2.116(I)(5). [William E Marcus Trust v Chad Apap, unpublished per curiam opinion of the Court of Appeals issued October 17, 2017 (Docket No. 333169) at 2.]
Respecting the ownership of Lot 23 and the 9-foot strip, this Court concluded from the record evidence as follows:
The 9-foot strip of land at issue is the western most portion of Lot 23. Gunther and Konet own Lot 24; they have no interest in Lot 23. From the deeds contained in the lower court record, it appears that the trust owns Lot 23 except for the 9-foot strip. Specifically, the trust's deed describes the property owned by the trust as: "Lot 23 Exc W 9 ft." Further, the trust obtained the property from Marcus, whose deed described the property he owned at the time of the conveyance to the trust as "LOT 23 EXCEPT THE WEST 9 FEET . . ." While older deeds in Marcus's chain of title suggest that Marcus's predecessors may have owned all of Lot 23 subject to an easement for the backlot property owners, the fact remains that Marcus and the trust did not receive all of Lot 23. Instead, they received Lot 23 except for the west 9-feet. Such language unambiguously created an exception that excluded the west 9-feet from the conveyance to Marcus, meaning that the 9-foot strip remained with the grantor. See Thomas v Jewell, 300 Mich. 556, 561; 2 N.W.2d 501 (1942); Hasselbring v Koepke, 263 Mich. 466, 479; 248 N.W. 869 (1933). As a result, based on the documents in the record before us, the ownership of the 9-foot strip appears to rest, not with Marcus or the trust, but with whomever in the trust's chain of title first conveyed Lot 23 except for the 9-foot access. From the available evidence, none of the plaintiffs have shown an ownership interest in the 9-foot strip, and thus they cannot show a trespass resulting from the fence on the 9-foot strip. See Difronzo [v Vill of Port Sanilac], 166 Mich.App. [148, ] 155[; 419 N.W.2d 756 (1988)] ("In order to recover for a trespass, plaintiff must have title."). [Marcus Trust, unpub op at 6.]
Despite plaintiffs' lack of ownership in the 9-foot strip, this Court observed that "plaintiffs are undoubtedly riparian owners on Walled Lake." Id. at 7. This Court noted that defendants claimed ownership to the 9-foot strip with riparian rights, but found that they failed to support...
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