Johnson v. Apj Properties, LLC, 040518 FED6, 17-1970

Docket Nº:17-1970
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.
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
 
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ELDON E. JOHNSON, Trustee of the Pamela B. Johnson Trust, Plaintiff-Appellant,

v.

APJ PROPERTIES, LLC, a Michigan limited liability company, Defendant-Appellee.

No. 17-1970

United States Court of Appeals, Sixth Circuit

April 5, 2018

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.

OPINION

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 Trust's property for the benefit of APJ's property. Fatal to the Trust's claim is that it fails to allege that this annexation has led to any actual increase in or modification to APJ's use of the easement. We therefore affirm the district court's dismissal of the Trust's complaint for failure to state a claim.

I

APJ owns 304 East Dixon Avenue. APJ's 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 APJ's easement over 306 East Dixon is coterminous with the easement's "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 APJ's construction vehicles exceeded the easement's 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 City's 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 City's 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 Trust's land was excluded from the conveyance. Problem solved? Not so fast. No sooner had the City granted APJ's 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.

APJ built its porch...

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