Kirchen v. Remenga

• Decision Date: 09 November 1939
• Docket Number: No. 36.,36.
• Citation: 291 Mich. 94,288 N.W. 344
• Parties: KIRCHEN et al. v. REMENGA et al.
• Court: Michigan Supreme Court

291 Mich. 94

288 N.W. 344

KIRCHEN et al.

v.REMENGA et al.

No. 36.

Supreme Court of Michigan.

Nov. 9, 1939.

Suit by Charles Kirchen and others, individually and as members of the West Michigan Park Association, and another, against John Remenga and others, trustees of the segregated assets of the First State Bank of Holland, Mich., and others, to restrain defendants from using and selling certain lands originally platted for street and park purposes and to compel the removal of buildings thereon. The suit was consolidated and tried with a suit by Hazel Tracy Eggleston to establish title to a portion of the park lands adjoining a lot which she owned. From the decree, the defendants and Hazel Tracy Eggleston appeal.

Affirmed as modified.

WIEST, J., and BUTZEL, C. J., dissenting.Appeal from Circuit Court, Ottawa County, in Chancery; Leonard D. Verdier, Judge.

Argued before the Entire Bench.

Arthur Van Duren, Cornelius Vander Meulen, and Diekema, Cross & Ten Cate, all of Holland, for appellants.

Grant Sims and Smith, Strawhecker & Wetmore, all of Grand Rapids, for appellees.

POTTER, Justice.

This suit is brought by approximately 30 lot owners in what is known as Ottawa Beach resort to restrain defendants from using and selling certain lands originally platted for street and park purposes, and to compel the removal of buildings located thereon. It was consolidated and tried with a suit by Hazel Tracy Eggleston, one of the lot owners, to establish title to a portion of the park lands adjoining a lot which she owns.

In 1886, the West Michigan Park Association was incorporated under Act No. 151, Pub. Acts 1869, as amended. The plan of organization is sufficiently described in West Michigan Park Ass'n v. Pere Marquette R. Co., 172 Mich. 179, 137 N.W. 799. It acquired title to the lands in question. September 21, 1886, the corporation filed a plat of about 50 acres of land along the shores of Black Lake and Lake Michigan with the auditor general and the register of deeds of Ottawa county. On this plat there appeared 150 lots designated by number, the remainder of the land being designated as parks, walks, streets, etc. The plat was laid out so as to make each lot adjacent to one of the parks. Lots were sold and deeded with reference to the plat. Each lot purchaser became a stockholder in the corporation. Summer homes were built on many of the lots.

In 1889, the corporation gave a mortgage covering the entire plat, with the exception of 150 lots, the streets, walks, etc., the park land not being mentioned as an exception. This mortgage was foreclosed in chancery and a commissioner's deed executed to Charles M. Heald, May 1, 1895. An execution to satisfy a deficiency judgment on the mortgage resulted in a sheriff's sale of the same premises to Heald, February 1, 1897. This deed recited the expiration of the redemption period. Heald held the property under the commissioner's deed and under the sheriff's deed and his title was later acquired by the Ottawa Beach Resort Company, a corporation organized under Act No. 230, Pub. Acts 1897.

In 1892, the West Michigan Park Association filed a resubdivision plat with the auditor general and register of deeds of Ottawa county, in which certain of the areas designated as ‘park’ on the original plat were changed to lots, and streets and alleys were dedicated to the public. No proceedings were taken to vacate the original plat. A hotel, grocery store, boat livery, powerhouse, garage, and other buildings were erected on the park land from time to time, but the use of these structures has been for the most part discontinued.

In March, 1926, the Ottawa Beach Resort Company mortgaged its holdings to the First State Bank, of Holland, Michigan, for $16,500. This mortgage was foreclosed and bid in by the bank in 1932. In 1933, the bank conveyed the property by quitclaim deed to the defendant trustees of its segregated assets. Several pracels of land designated as ‘park’ in the original plat were sold by the trustees and others were offered for sale as cottage sites. The other defendants named herein hold under deeds from these trustees. Defendant Remenga has erected a gas station on one of these lots. Defendant Van Wieren has erected a home on another of such lots. Defendant Kilcare, Incorporated, has purchased another lot and operates a beer tavern in what was formerly a garage used for storage of cottage-owners' cars. The defendant trustees have whatever title the West Michigan Park Association had in the property, with the exception of such lots as were sold by them. The remainder of the park property has been left largely in its natural state, except that walks have been built and street lighting installed. Neither the State, county or township has made improvements on the park lands or streets, nor have they done anything to indicate public acceptance of the dedication thereof.

Hazel Tracy Eggleston, plaintiff in her case and a defendant in the principal case, owns lot No. 34 of the original plat. Her father built a cottage on the lot in 1890. Adjacent to the lot is a strip of land which is reserved for a park or a road on the original plat. A roadway runs through the strip which has been used since the beginning of the resort. A boathouse belonging to Mr. Eggleston was moved onto this strip and converted into a garage. Mrs. Eggleston claims the right to the possession and use of this strip to the exclusion of the public, except that part used for actual roadway. In 1892 or 1896, Mrs. Eggleston's father purchased from Mr. Heald the parcel immediately south of lot No. 34, 50 feet north and south by 100 feet east and west. He also planted flowers and shrubs on the triangular piece to the south of the latter parcel and fenced both parcels against the intrusion of the general public.

The West Michigan Park Association as originally incorporated has long since ceased to exist. The present organization known by the same name is a voluntary association of cottage-owners.

The main question here involved is whether the lot owners have a right to the preservation of the park lands as such.

‘There is no doubt that when the proprietors of a village or town have dedicated lots for streets or for a public square, and have sold lots with reference to such plan, they cannot resume and exercise rights of ownership over them, which will deprive their grantees of any privilege which they might derive from having such streets or squares left open.’ Sinclair v. Comstock, Har. 404.

‘It is also well established, with respect to a purchaser of lots described as bounded on a street, that the vendor is estopped from shutting it up so as to prevent his vendee from making use of it for his own accommodation in the enjoyment of his purchase. It becomes a matter of private right, and in no way depends upon the question whether the public have acquired a right of way or not.’ Plumer v. Johnston, 63 Mich. 165, 29 N.W. 687, 690, citing Smith v. Lock, 18 Mich. 56;Purkiss v. Benson, 28 Mich. 538;Karrer v. Berry, 44 Mich. 391, 6 N.W. 853.

‘As between individuals so purchasing and the proprietor, they are entitled to have the streets necessary or convenient for their use and enjoyment of the property purchased by them kept open for their own and the public's use. But such proprietor is not estopped from reclaiming or shutting up any street or portion thereof delineated on his plat, where private rights are not directly affected; and as against the municipality claiming the streets, where the public have not acquired rights by user, or acceptance of the offer to dedicate, indicated by the platting, the owner is not estopped. He may revoke or recall his offer to dedicate before actual acceptance at any time, when the plat has not been executed in accordance with the statute, and placed upon record.’ Diamond Match Co. v. Village of Ontonagon, 72 Mich. 249, 40 N.W. 448, 452; citing City of Galveston v. Williams, 69 Tex. 449, 6 S.W. 860;People v. Beaubien, 2 Doug. 256;People v. Jones, 6 Mich. 176;Baker v. Johnston, 21 Mich. 319;Detroit v. Railroad Co., 23 Mich. 173;County of Wayne v. Miller, 31 Mich. 447; Board of Supervisors of Cass County v. Banks, 44 Mich. 467, 7 N.W. 49;Buskirk v. Strickland, 47 Mich. 389, 11 N.W. 210.

‘But it is also the rule in this and other states that the platting and sale of lots constitute a dedication of streets, etc., delineated on the plat as between the grantors and the purchasers from them.’ Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3.

The sale of lots with reference to a plat in which areas are designated as parks passes to the purchasers of the lots a common right to use such areas for park purposes. Schurtz v. Wescott, 286 Mich. 691, 282 N.W. 870.

It is settled by the authorities in this State that the purchasers of lots in the original plat were entitled to the preservation of the park areas in substantially their natural state, free from the intrusion of private individuals or corporations who may seek to acquire and exercise exclusive rights therein. Cooper v. Alden, Har. 72; People v. Beaubien, 2 Doug. 256;People v. Jones, 6 Mich. 176;Smith v. Lock, 18 Mich. 56;Baker v. Johnston, 21 Mich. 319;City of Detroit v. Detroit & Milwaukee R. Co., 23 Mich. 173;White v. Smith, 37 Mich. 291;Karrer v. Berry, 44 Mich. 391, 6 N.W. 853;Grand Rapids & Indiana R. Co. v. Heisel, 47 Mich. 393, 11 N.W. 212;Village of Grandville v. Jenison, 84 Mich. 54, 47 N.W. 600;Conkling v. Village of Mackinaw City, 120 Mich. 67, 79 N.W. 6;City of Mt. Clemens v. Sanitarium Co., 127 Mich. 115, 116, 86 N.W. 537;Dodge v. North End Improvement Ass'n, 189 Mich. 16, 155 N.W. 438, Ann.Cas.1918E, 485.

The rule in Michigan is generally recognized in other States. Calkins v. Westervelt, D.C., 214 F. 415;Marsh v. Fairbury, 163 Ill. 401, 45 N.E. 236;Baltimore Belt R. Co. v. McColgan, 83 Md. 650, 35 A. 59;Thorndike v. Milwaukee Auditorium Co., 143 Wis. 1, 126 N.W. 881;Holloway loway v. Southmayd, 139 N.Y. 390, 34...