Musser v. Loon Lake Shores Ass'n, 5

• Citation: 186 N.W.2d 563,384 Mich. 616
• Decision Date: 01 October 1970
• Docket Number: No. 5,5
• Parties: Marshall L. MUSSER and Phyllis I. Musser, his wife, and Thomas V. Burgess and Merla J. Burgess, his wife, Plaintiffs-Appellants, v. LOON LAKE SHORES ASSOCIATION, Inc., a Non-Profit Corporation, Dale O. Hargraves, Gerald Davis and Beverly Lawton, Defendants-Appellees. ,
• Court: Supreme Court of Michigan

Page 563

186 N.W.2d 563

384 Mich. 616

Marshall L. MUSSER and Phyllis I. Musser, his wife, and Thomas V. Burgess and Merla J. Burgess, his wife Plaintiffs-Appellants, v. LOON LAKE SHORES ASSOCIATION, Inc., a Non-Profit Corporation, Dale O. Hargraves, Gerald Davis and Beverly Lawton, Defendants-Appellees.

No. 5, Oct. Term, 1970.

Supreme Court of Michigan.

May 3, 1971.

Jerome E. Mulligan, Pontiac, for plaintiffs and appellants.

Eugene K. Pool, Pontiac, for defendants-appellees.

Before the Entire Bench, except SWAINSON and WILLIAMS, JJ.

T. G. KAVANAGH, Justice.

'Loon Lake Shores' is a subdivision of land in Waterford Township, Oakland County, Michigan comprised of 43 lots, an area designated 'Park' and an area designated 'Outlot A' as indicated on the appended reproduction of the plot of such subdivision.

As stated in the dedication recited on the plat:

'* * * the streets as shown on said plat are hereby dedicated to the public and that the Park and Outlot 'A', and the ten (10) foot easement along the rear of lots 23 to 31, both inclusive, all as shown on said plat, and all riparian rights appurtenant to all lots and property in said subdivision, are hereby dedicated only to the common use and enjoyment of the owners of all lots in said subdivision.'

Subsequent to the platting of said property, the lots were all subjected to building and use restrictions by an appropriate instrument which included the following language:

'(15) A ten-foot easement has been provided for along the edge of the Clinton River (new channel) over and across lots 23 to 31, inclusive, access to this easement being from the area designated as 'Park' all of which is shown on the recorded plat. This easement is provided for access to the River and shores of Loon Lake by property owners in this Subdivision.'

In the summer of 1966, the defendant Loon Lake Shores Association, Inc. began construction of a bridge to outlot 'A' and caused concrete footings therefor to be installed at the edge of the Clinton River (new channel) and the 'Park'.

Suit was brought to enjoin such construction by plaintiffs Musser as owners of lot 26 in said subdivision and plaintiffs Burgess as owners of riparian land in another subdivision, asserting invasion of their respective interests.

A temporary restraining order was entered staying construction of the bridge.

Defendant Loon Lake Shores Association, Inc. filed answer to the complaint, contesting the material allegations thereof and asserting affirmative defenses. The defendant also filed a counterclaim asserting that it represented a majority of the lot owners in said subdivision, that the proposed bridge was necessary to their use and enjoyment of the property contemplated in the dedication and that the bridge was approved, cleared and endorsed by the Michigan Department of Conservation. In addition the defendant moved for a preliminary injunction on its counterclaim.

The plaintiffs responded by appropriate pleadings, filing answer to the affirmative defenses, counterclaim and motion for preliminary injunction, and urged as an affirmative defense that the defendant had no interest in the property and was merely a trespasser and interloper.

Plaintiffs also filed an amended complaint challenging the defendant's interest.

The defendant answered the amended complaint and moved to add necessary defendants as class representatives. Plaintiffs filed answer to this motion, pleading noncompliance with GCR 1963, 208 as an element of affirmative defense to the motion.

The court heard argument on the motion to add necessary defendants as class representatives and granted it subject to notice to the proposed class members and the filing of verified affidavits indicating their awareness of the action and their consent to the joinder of the individual defendants Hargraves, Davis and Lawton as necessary defendants as class representatives on their behalf.

Thereafter upon the filing of such affidavits and oral argument, the court found that the issues of the suit were of common and general interest among all subdivision property owners, that the property owners would probably all be bound by the actions taken and judgment entered in the cause, that it is impractical to bring all of said association members before the court as individual parties, and that the property rights and interests of each and every property owner in the subdivision were involved in the adjudication of these matters, and ordered the joinder of the individual defendants as class representatives on behalf of themselves and all other members of defendant association.

The matter came to trial in November 1967 and testimony was heard, among other things, on the effect of the proposed bridge construction on the navigation of the new channel, the effect of wild life in the area, and on restriction of plaintiff Musser's view. In addition the court viewed the premises.

The court also considered the plaintiff's contention that the easement crosses over the 'Park' land and hence this court's ruling in Delaney v. Pond, 350 Mich. 685, 86 N.W.2d 816 (1957) precluded the proposed construction. In that case we held that this easement was for access to the waters only.

At the conclusion of the trial after considering the briefs of coun...