Morse v. Colitti

• Citation: 896 N.W.2d 15,317 Mich.App. 526
• Decision Date: 18 October 2016
• Docket Number: Docket No. 328212.
• Parties: MORSE v. COLITTI.
• Court: Court of Appeal of Michigan (US)

317 Mich.App. 526

896 N.W.2d 15

MORSE

v.COLITTI.

Docket No. 328212.

Court of Appeals of Michigan.

Submitted Oct. 12, 2016, at Grand Rapids.

Decided Oct. 18, 2016, at 9:10 a.m.

Tripp & Tagg, Attorneys at Law (by David H. Tripp ), for Richard Morse.

Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) for Marc and Joan Colitti.

Before: K.F. KELLY, P.J., and O'CONNELL and BOONSTRA, JJ.

BOONSTRA, J.

In this property dispute, defendants Marc and Joan Colitti¹ appeal by right the trial court's June 18, 2015 judgment following a bench trial. The trial court held, in part, that defendants' dock overburdened the property at issue, and the court ordered its removal. Defendants contest plaintiff's standing and also challenge certain other aspects of the trial court's rulings. Plaintiff, Richard Morse, cross-appeals regarding the trial court's denial of his request for removal of a fence erected by defendants on the property, its failure to preclude the use of the property by defendants' back-lot tenants, and its earlier grant of partial summary disposition in favor of defendants with respect to defendants' construction on the property of a stairway and a pathway forged with landscaping blocks. We affirm in part, reverse in part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff and defendants own lots in the West Beach neighborhood bordering Fine Lake in Barry County. The 1928 West Beach plat dedicated the "streets, alleys and parks" to "the use of the present and future lot owners." The plat designates a park (the Park) as running along the lakeshore, separating Fine Lake from platted Lots 1 through 26 (the front lots). Additionally, a 10–foot–wide "walk" (the Walk) exists between Lot 5, which is owned by defendants, and Lot 6, which is owned by plaintiff.² In 2009, defendants used landscaping blocks to create a pathway, including a retaining wall, on the Walk. They also built a stairway from the pathway to the lake. They subsequently erected a wooden fence on the Walk within inches of the lot line separating the Walk and plaintiff's Lot 6. Defendants also own the back-lot property at 3406 West Shore Drive, which lies to the west of the West Beach plat but includes a strip of the southern 16 feet of Lot 44 in the West Beach plat. After defendants rented out the property at 3406 West Shore Drive, they built a dock on Fine Lake that was in line with the Walk.

Plaintiff filed suit in 2013, in part alleging and seeking monetary damages for trespass, nuisance, and the violation of the Barry County Zoning Ordinance (BCZO). Plaintiff additionally requested that the trial court (1) determine that he owned the fee to the center of the Walk, subject to an easement for ingress and egress; (2) determine that defendants had trespassed on his property and order defendants to remove all dirt, landscaping blocks, and fences from his portion of the Walk (and that, if defendants failed to do so and plaintiff removed the items, plaintiff would receive a judgment against defendants with damages trebled); (3) determine that defendants' erection of a dock at the end of the Walk violated the BCZO; (4) enjoin defendants from allowing their tenants at 3406 West Shore Drive to use the Walk to gain access to Fine Lake; and (5) grant plaintiff attorney fees and costs. Plaintiff later added a claim that, as an owner of land abutting the Walk, he had a reversionary interest in the fee of the Walk to its center, which would become a possessory interest if and when the Walk was vacated.³

By order dated November 4, 2014, the trial court denied the parties' cross-motions for summary disposition. The court further determined "that the [Walk] is not, at this time, subject to the reversionary interest that Plaintiff claims" and "that all lot owners are entitled to use [the Walk] as a[sic] easement." By order dated June 2, 2015, the trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) (claim barred by limitations period) on plaintiff's nuisance, trespass, and violation of the BCZO claims regarding the pathway and stairway. The trial court also held that lot owners had an easement interest in the Park and described the Park as "merely an extension of the easement of the walkway ... subject to the right of the public's right [sic] to traverse the area."⁴ The trial court reserved other issues regarding the fence and the dock for trial. Following a bench trial, the trial court issued the judgment described, in part, earlier. This appeal and cross-appeal followed.

II. DEFENDANTS' APPEAL

A. PUBLIC DEDICATION

On appeal, defendants argue that the trial court erred when it described the dedication of the Park as a public dedication. Plaintiff concedes that this description was erroneous. We agree. At the hearing in which the trial court granted partial summary disposition in favor of defendants, the trial court stated that the Park "was subject to ... the public's right to traverse the area." "The scope and extent of an easement is generally a question of fact that is reviewed for clear error on appeal." Wiggins v. Burton, 291 Mich.App. 532, 550, 805 N.W.2d 517 (2011). "A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." In re Bennett Estate, 255 Mich.App. 545, 549, 662 N.W.2d 772 (2003). We review de novo a trial court's grant or denial of summary disposition. Wiggins, 291 Mich.App. at 550, 805 N.W.2d 517.

When a person purchases property that is recorded in a plat, the purchaser receives both the interest described in the deed and the rights indicated in the plat. Minerva Partners, Ltd. v. First Passage, LLC, 274 Mich.App. 207, 219, 731 N.W.2d 472 (2007). When interpreting a plat, this Court seeks to effectuate the intent of the plattor. Tomecek v. Bavas, 482 Mich. 484, 490–491, 759 N.W.2d 178 (2008) (opinion by KELLY, J. ); id. at 499, 759 N.W.2d 178 ( CAVANAGH, J., concurring in part and dissenting in part). When the language of a legal instrument is plain and unambiguous, it is to be enforced as written, and no further inquiry is permitted. Little v. Kin, 468 Mich. 699, 700, 664 N.W.2d 749 (2003).

The plat "dedicated" the Park to "the use of the present and future lot owners." Because language dedicating land for "the use" of others is consistent with a grant of an easement, not a grant of fee ownership, Dobie v. Morrison, 227 Mich.App. 536, 540, 575 N.W.2d 817 (1998), the plat granted an easement in the Park. Moreover, because "the use" of the Park was dedicated to the "present and future lot owners," the holders of the easement were the present and future lot owners, not the public at large. The trial court erred by more broadly stating that the public had a right to traverse the Park.⁵

B. SEPARATE PROPERTY FEATURES

Defendants also argue that the trial court erred by describing the Park as "merely an extension of the easement" in the Walk. According to defendants, the trial court treated the Park and the Walk as one property feature. Although defendants concede that this error is "seemingly minor," they still seek its correction because they claim that the trial court's statement "casts grave uncertainty [on] whether riparian rights run to the Park or to the Walks or both." Indulging defendants, we disagree that the trial court ever treated the Park and Walk as a single property feature.

At the summary disposition hearing, the trial court stated that, because of the word "use" in the dedication, the lot owners only received an easement in the Park. It then defined the scope of the easement, concluding that the Park "is merely an extension of the easement" in the Walk. When this challenged statement is read in context, the trial court was not stating that the Park and the Walk constituted a single property feature. Rather, the statement reflected the trial court's conclusion that, because of the Park's character, the scope of the easement in the Park did not include traditional park purposes, but was limited to the right to traverse the Park. Therefore, the trial court's statement served to describe the scope of the easement in the Park as the same as the scope of the easement in the Walk. Accordingly, defendants' argument that the trial court treated the Walk and the Park as a single property feature is without merit.

C. STANDING

Next, defendants argue that plaintiff lacked standing to challenge any alleged misuse of riparian rights in the Park (i.e., defendants' erection of the dock) because he did not have any riparian rights in the Park. The issue whether a party has standing to assert a claim is a legal question reviewed de novo. Johnson v. Dep't of Natural Resources, 310 Mich.App. 635, 649, 873 N.W.2d 842 (2015).

Land that includes or is bounded by water is defined as riparian. Thies v. Howland, 424 Mich. 282, 287–288, 380 N.W.2d 463 (1985).⁶ Owners of riparian land enjoy certain exclusive rights, including the rights to erect and maintain docks and to permanently anchor boats off the shore. 2000 Baum Family Trust v. Babel, 488 Mich. 136, 166, 793 N.W.2d 633 (2010). Generally, it is an "indispensable requisite" that land actually touch water to be riparian, but there are exceptions to this rule. Id. at 167, 793 N.W.2d 633.

Taking different views of the Supreme Court's decision in Thies, 424 Mich. 282, 380 N.W.2d 463, and this Court's decision in Dobie, 227 Mich.App. 536, 575 N.W.2d 817, the parties disagree about whether the existence of the Park between the front lots and Fine Lake means that the front lots are not riparian. However, we need not determine whether the front lots are riparian and, if not, who owns the fee in the Park in order to resolve defendants' argument that plaintiff lacks standing to challenge the use of alleged riparian rights in the Park. Even assuming for the sake of argument that plaintiff does not have riparian rights in the Park,...