Lakeside Associates v. Toski Sands

• Decision Date: 16 March 1984
• Docket Number: Docket No. 68797
• Citation: 131 Mich.App. 292,346 N.W.2d 92
• Parties: LAKESIDE ASSOCIATES, a Michigan limited partnership, Plaintiff, Counter-Defendant, Appellant, Cross-Appellee, v. TOSKI SANDS, a co-partnership, Defendant-Appellee, Cross-Appellant, and Thomas D. and Betty J. Bradley, and George E. and Carrie L. Gerrie, Defendants, Counter-Plaintiffs, Appellees and Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 92

346 N.W.2d 92

131 Mich.App. 292

LAKESIDE ASSOCIATES, a Michigan limited partnership Plaintiff, Counter-Defendant, Appellant, Cross-Appellee, v. TOSKI SANDS, a co-partnership, Defendant-Appellee, Cross-Appellant and Thomas D. and Betty J. Bradley, and George E. and Carrie L Gerrie, Defendants, Counter-Plaintiffs, Appellees and Cross-Appellants.

Docket No. 68797.

Court of Appeals of Michigan.

Submitted Nov. 10, 1983.

Decided Dec. 20, 1983.

Released for Publication March 16, 1984.

John F. Rohe, Petoskey, for plaintiff, counter-defendant, appellant, cross-appellee.

Stroup, Brown & Mulhauser, P.C. by Nathaniel W. Stroup, Petoskey, for defendants, counter-plaintiffs, appellees and cross-appellants.

Before ALLEN, P.J., and MAHER and BELL ^*, JJ.

PER CURIAM.

This appeal and cross-appeal involve the extent of an easement appurtenant which was granted by plaintiff Lakeside Associates' predecessors-in-interest (the Mulvaneys) to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie" and the trial court's determination that Lakeside Associates' "improvements" to the easement (a 500-foot by 66-foot roadway) did not unreasonably infringe on Toski Sands' use of the easement.

In 1967, George E. Gerrie and Thomas D. Bradley formed a co-partnership called Toski Sands and, using partnership money, bought two adjoining parcels of land with a combined length of 500 feet, designated at trial as lots C and D. The deeds were titled in the names of George E. and Carrie L. Gerrie, husband and wife, and Thomas D. and Betty J. Bradley, husband and wife. The deeds were recorded. In 1969, for various business reasons, parcel C was quitclaim deeded by George E. and Carrie L. Gerrie and Thomas D. and Betty J. Bradley to Toski Sands, a co-partnership. This deed was also recorded. Parcel C had a length of 200 feet.

Lots C and D bordered on a private road owned by the Mulvaneys, who also owned lot "A". In June 1974, Mr. Gerrie and Mr. Bradley approached the Mulvaneys to buy an easement along the 500 feet of the private road which abutted lots C and D. According to the testimony at trial, Mr. Gerrie and Mr. Bradley paid $1,000 for an easement "for road purposes" which was intended to benefit both lots C and D. Mr. Mulvaney testified that he understood that both C and D were owned by the Toski Sands co-partnership and that he, in fact, believed C and D were only one parcel. He was specifically told during negotiations that the easement was to benefit all 500 feet of the Toski Sands' property because "at some future date they [Toski Sands] wished to develop the back [D] of the property". The Mulvaneys, Mr. Gerrie and Mr. Bradley also agreed that the easement would be for a road 66 feet in width; this width was required by M.C.L. Sec. 221.20; M.S.A. Sec. 9.21 and M.C.L. Sec. 224.11; M.S.A. Sec. 9.111 to dedicate the private road as a county road as the Mulvaneys and the co-partners eventually hoped to do. Mr. Mulvaney's attorney drafted a deed and an agreement which granted a "permanent easement for road purposes", 500 feet long and 66 feet wide, to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie". This deed was recorded in 1978.

In March 1979, parcel C was deeded back to Thomas D. and Betty J. Bradley and George E. and Carrie L. Gerrie by the Toski Sands co-partnership, and the deed was recorded immediately.

In November 1979, Lakeside Associates signed a buy-sell agreement with the Mulvaneys to purchase lot A. In negotiations for this property, Mr. Latimer Spinney, the general partner of Lakeside Associates, testified that he was told by Mr. Mulvaney that there was a 500-foot easement "for the party store [Toski Sands ran a party store and carry-out operation on lot C] to give truck access". He was never told by Mr. Mulvaney that the 500-foot easement was intended to benefit lot D. Mr. Mulvaney testified that he told Mr. Spinney "there was an easement to the Toski Sands for the length of their property which we presumed and thought to be five-hundred feet * * * ". Mulvaney drew a picture showing the easement and gave a copy to Spinney. The picture showed the Toski Sands property as one 500-foot-long parcel with a width of 300 feet. Spinney informed Lakeside Associates' attorney William Conn, a future limited partner in the enterprise and an experienced real estate attorney, of the easement to "Toski Sands", and Conn conducted a title search to discover what property was owned by the Mulvaneys and what easements, etc. existed on that property. He discovered the 1974 easement deed from the Mulvaneys to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie" and saw that the easement was for 500 feet. However, he also saw that the deed was ambiguous because it did not specify whether the easement was to be appurtenant (running with the land) or in gross (personal to the grantees only), because it did not specify the dominant estate. From his knowledge of property law, he knew that if the easement was to an adjoining landowner, it would be appurtenant. He therefore set out to discover if any of the adjoining landowners was named "Toski Sands". He found the 1969 deed from the Bradleys and Gerries deeding the 200-foot long parcel C to "Toski Sands, a co-partnership", and concluded from this that the easement was appurtenant. He also concluded that only parcel C was a beneficiary of the easement because only C bore the Toski Sands name, although he knew the easement was for 500 feet and parcel C was only 200 feet long. He did not check subsequent records and so did not discover that parcel C had been deeded back to the Gerries and Bradleys in March, 1979. Lakeside Associates subsequently entered into the buy-sell agreement with the Mulvaneys for lot A.

Problems developed when Lakeside Associates put in an 80-by-14 foot median at the beginning of lot D in the middle of the private road. Lakeside Associates also lined the edges of the road with logs and fir trees which, according to Toski Sands, blocked access to and from the easement onto lot D. Lakeside Associates claimed that the easement did not benefit lot D, while Toski Sands claimed it had bought an easement giving it access along all 500 feet of lots C and D. Lakeside Associates sought a declaratory judgment that only lot C was benefitted by the easement, and Toski Sands counter-claimed for an injunction to force Lakeside Associates to remove the median, logs and fir trees.

The trial court ruled that the deed granting the easement to Toski Sands was ambiguous because it did not name the dominant estate, and therefore admitted parol evidence of the Mulvaneys' and Mr. Bradley's and Mr. Gerrie's intent when they drafted the agreement. Based upon this evidence, the court ruled that parcel D was also part of the dominant estate. However, the court denied Toski Sands' request for an injunction because the median, fir trees and logs did not interfere with either the current use (a vacant lot) of D or any known future use.

On appeal, Lakeside Associates argues that the trial court committed reversible error when it admitted parol evidence of the contracting parties'...