, Opal Lake Ass'n v. Michaywe Ltd. Partnership

• Decision Date: 11 August 1975
• Docket Number: Docket No. 19524
• Citation: 234 N.W.2d 437
• Parties: Page 437 234 N.W.2d 437 OPAL LAKE ASSOCIATION, a Michigan non-profit Corporation, Plaintiff-Appellant, v. MICHAYWE LIMITED PARTNERSHIP and Department of Natural Resources of the State of Michigan, Defendants-Appellees. 63 Mich.App. 161, 234 N.W.2d 437 Court of Appeals of Michigan
• Court: Court of Appeal of Michigan — District of US

Page 437

234 N.W.2d 437

OPAL LAKE ASSOCIATION, a Michigan non-profit Corporation Plaintiff-Appellant v MICHAYWE LIMITED PARTNERSHIP and Department of Natural Resources of the State of Michigan Defendants-Appellees.

Docket No. 19524.

63 Mich.App. 161, 234 N.W.2d 437

Court of Appeals of Michigan.

Aug. 11, 1975.

Released for Publication Nov. 3, 1975.

Leave to Appeal Denied Jan. 9, 1976.

[63 MICHAPP 161] Jereck & Stiner, by John M. Jereck, Battle Creek, for plaintiff-appellant.

W. A. Steiner, Jr., Detroit, for Michaywe .

Frank J. Kelley, Atty. Gen., Robert A. [63 MICHAPP 162] Derengoski, Sol. Gen., Jerome Maslowski, Asst. Atty. Gen., for DNR.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

This case came to us on original appeal and we wrote an opinion therein which was published at 47 Mich.App. 354, 209 N.W.2d 478 (1973), which is self-explanatory. We incorporate that opinion in our present opinion by reference. After our remand to the trial court, additional evidence was admitted and after due consideration of all the evidence and our previous opinion, the trial judge issued an injunction which reads as follows:

'Plaintiff, Opal Lake Association, a Michigan non-profit corporation, having filed a complaint for injunctive relief against Defendant Michaywe Limited Partnership, a Michigan limited partnership (Michaywe ), and Defendant State of Michigan, Department of Natural Resources, and said Defendants having filed answers thereto, and this matter having been tried by this Court, and the Court having made its finding of facts and conclusions of law on January 6, 1972, and an order thereafter having been entered on March 21, 1972, which order was appealed by Plaintiff, and a decision of the Court of Appeals having been rendered on May 23, 1973 (47 Mich.App. 354); (209 N.W.2d 478 (1973)), and the matter having been remanded to this Court for further proceeding pursuant to said decision of the Court of Appeals, and the Court having conducted further hearings thereon, and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that Defendant Michaywe , its officers, agents, servants, employees and attorneys, and its successors, assigns, devisees, lessees and licensees, and all others claiming any interest in the subject real estate through the title of Michaywe [63 MICHAPP 163] Limited Partnership, be, and they hereby are, permanently enjoined from developing the property described in the Michaywe Preliminary Master Plan as 'Swim 'n' Sun Club' in the manner and to the extent testified to by representatives of such Defendant during the course of the trial, that being a development for the unrestricted use of the property for swimming, sunbathing, and boating and other recreational purposes, for the reason that such unrestricted use of the property constitutes an unreasonable use of said property in relation to the rights of other riparian owners on Opal Lake.

'IT IS FURTHER ORDERED that Michaywe Limited Partnership be, and it hereby is, enjoined from distributing promotional or advertising material which implies that the owners of lots in Michaywe § property will have the unrestricted use of the Opal Lake Beach frontage owned by Michaywe .

'IT IS FURTHER ORDERED that Michaywe Limited Partnership, its officers, agents, servants, employees, and attorneys and its successors, assigns, devisees, lessees and licensees, and all others claiming any interest in said property through the title of Michaywe Limited Partnership, be, and it hereby is, enjoined from the use or development of the property described in the Michaywe Preliminary Master Plan as 'Swim 'n' Sun Club' as such, unless and until restrictions are recorded against such property which are permanent and run with the land until the time when such property is platted into single-family lots, or until further order of this Court, which restrictions are to provide:

'1. The plaintiff, by its officers, may enter onto such property at all reasonable times to inspect the property to insure compliance with this order;

'2. That, in the event Plaintiff Opal Lake Association is no longer in existence, or fails to act, any Opal Lake riparian owner, now or in the future, may act to enforce these restrictions and the order of this Court;

'3. That the restrictions herein contained, and this order, may be enforced against Michaywe Limited Partnership or whoever then is the owner of said property.

'4. That the restrictions herein contained may be [63 MICHAPP 164] enforced either through the use of the contempt power of this Court against the Defendant Michaywe Limited Partnership or its successors in interest, and, if appropriate, the officers, directors, and members or shareholders of said Michaywe Limited Partnership or its successors in interest, or this injunction may be modified so as to further protect the rights of Plaintiff ...