Pine Bluffs Ass'n v. DeWitt Landing Ass'n

• Decision Date: 01 April 2010
• Docket Number: Docket No. 289200.
• Citation: 287 Mich.App. 690,792 N.W.2d 18
• Parties: PINE BLUFFS AREA PROPERTY OWNERS ASSOCIATION, INC. v. DeWITT LANDING AND DOCK ASSOCIATION.
• Court: Court of Appeal of Michigan — District of US

287 Mich.App. 690

792 N.W.2d 18

PINE BLUFFS AREA PROPERTY OWNERS ASSOCIATION, INC.

v.DeWITT LANDING AND DOCK ASSOCIATION.

Docket No. 289200.

Court of Appeals of Michigan.

Submitted March 9, 2010, at Lansing.

Decided April 1, 2010, at 9:00 a.m.

Carey & Jaskowski, P.L.L.C. (by Richard J. Jaskowski), Grayling, for plaintiff.

Olson, Bzdok & Howard, P.C. (by Christopher M. Bzdok and Jeffrey L. Jocks), Traverse City, for the DeWitt Landing and Dock Association, Kenneth Shinsky, and Eric Wegner.

Cummings, McClorey, Davis & Acho, P.L.C. (by Haider A. Kazim and Andrew J. Brege), Traverse City, for the Roscommon County Road Commission.

Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ.

O'CONNELL, J.

This case involves a dispute regarding the use of and property rights attached to a 20-foot by 120-foot strip of property at the end of Hitchcock Avenue along Higgins Lake in Gerrish Township, Roscommon County. After a bench trial, the trial court determined that the disputed strip of property was part of Hitchcock Avenue and, therefore, subject to the same restrictions regarding its use as those set forth in Jacobs v. Lyon Twp. (After Remand), 199 Mich.App. 667, 502 N.W.2d 382 (1993). We reverse and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

A. OVERVIEW AND DESCRIPTION OF THE SITE

The property in dispute is a 20-by-120-foot strip of land along the shore of Higgins Lake. Both plaintiff and the Roscommon County Road Commission claim that Hitchcock Avenue is 50 feet wide at this point, while defendants claim that the property in dispute is not part of Hitchcock Avenue, so Hitchcock Avenue is only 30 feet wide at this point. The northern 20 feet of Hitchcock Avenue are located in Section 9 of Township 24 North, Range 3 West, in Gerrish Township, while the southern 30 feet are located in Section 16, Township 24 North, Range 3 West in Gerrish Township. Accordingly, the road straddles the section line as it runs in an east-to-west direction.

Hitchcock Avenue dead-ends near the shore of Higgins Lake. In particular, the 50-foot-wide paved public roadway ends approximately 120 feet east of the shore of Higgins Lake. The 120-foot by 50-foot parcel of property west of the Hitchcock Avenue terminus, known as DeWitt's Landing, has long been used by property owners in the area (specifically, "back-lotters") and by the public as an access site for Higgins Lake. Because the road commission did not appear to maintain this parcel of land, area residents created the DeWitt Landing Association and the DeWitt Dock Association to maintain the property and a public seasonal dock on the site.¹

Photographs of the site taken in 2006 indicate that Hitchcock Avenue is paved to approximately the eastern edge of DeWitt's Landing. On approximately the southern half of the property (corresponding to the portion of the property in Township Section 16), a paved cement boat ramp leads to the water.² The northern portion of the property (corresponding to the portion of the property in Township Section 9) consists of a mowed grassy area, a concrete retaining wall and patio, and a beach. In particular, a mowed grassy area is located on the easternmost two-thirds of the northern portion of the property. The mowed area ends at a low concrete retaining wall, located approximately two-thirds of the way down the strip of property toward the water. Past the retaining wall is a paved area, that is wide enough for two picnictables, and a sandy beach leading to the water. At the northern edge of the property, a long dock stretches out into the water. Fences stretch to the water line to both the north and south of the property.

The photographs also show that a vehicle guardrail is located at the eastern edge of DeWitt's Landing, stretching along the northern half of the eastern boundary of the property. The guardrail is approximately 20 feet long, and it separates the roadway from the grassy area to the west. A "Road Ends" sign and a red diamond-shaped sign are posted immediately behind the guardrail. Another photograph depicts a sign posted by the DLDA on the property, which reads in part, "No tax dollars are spent on upkeep of this road end. Our volunteer organization keeps the dock, beach, ramp and grassy hill in a safe and sanitary condition for the public to enjoy." (Emphasis in original.)

B. THE 30-FOOT STRIP

The southern 30 feet of DeWitt's Landing (the 30-foot strip) is located in Section 16 of Gerrish Township and is part of the platted community of Pine Bluffs. The Pine Bluffs plat indicates that the northernmost 30 feet of the platted property, stretching approximately 400 feet from Higgins Lake to Pine Bluffs Road, was originally identified as "North Street." The westernmost 120 feet of "North Street" corresponds to the 30-foot strip. This plat dedicated the streets shown on the plat "to the use of the public."

Although the 30-foot strip was never used as a road per se, it has been used for some time to provide access for vehicles moving boats in and out of the water. Over half a century ago, DLDA members installed a cement boat ramp on the 30-foot strip, and over the years they have continued to maintain the boat ramp on behalf ofthe public.³ Apparently both DLDA members and the public have used this area consistently as a lake access point.

In separate litigation in the late 1990s, the Roscommon Circuit Court determined that the 30-foot strip was a platted road dedicated to the public and, accordingly, it limited certain shore activities on the 30-foot strip, precluded the erection of privatedocks, boat hoists, and other anchorage devices, and permitted the erection and maintenance of one common public dock. The use of the 30-foot strip is not in dispute in this case.

C. PROPERTY TRANSFERS INVOLVING THE 20-FOOT STRIP

Specifically, this case concerns the use and ownership of the northern 20-by-120 feet of DeWitt's Landing (the 20-foot strip). All parties acknowledge that this property is not located within the plat of Pine Bluffs, but is adjacent to the northern boundary of the plat. Unlike the 30-foot strip, which appears to consist primarily of the boat ramp, the 20-foot strip functions more as a small park. The underlying dispute in this case concerns whether this 20-foot strip is a public road and, therefore, whether the use restrictions that apply to the 30-foot strip also apply to the 20-foot strip.

At the turn of the 20th century, the land north of the Pine Bluffs plat, including the 20-foot strip, was also platted. This plat, known as the Kenwood plat, was dedicated and registered in 1901.⁴ The platters designedthe Kenwood plat to consist of 18 blocks, arranged in three groupings (on Lots 2, 3, and 4 of Section 9) of six blocks each along the shore of Higgins Lake. The plat indicates that blocks one through six were located in Lot 2, blocks seven through 12 were located in Lot 3, and block A ⁵ and blocks 14 through 18 were located in Lot 4. Each block in Lots 2 and 4 contained 80 lots, arranged in two rows of 40 lots each.⁶ The blocks in Lot 3 contained 82 lots, arranged in two rows of 41 lots each. Each lot measured approximately 32 by 65 feet. None of the lots touched the water. Instead, a large road known as Chicago Boulevard was designated to run along the shore of Higgins Lake for the length of the plat separating the lots from the lake. Platted roads separated each grouping of blocks, and each block was separated by alleys that ran parallel to the shore of Higgins Lake. Another alley of undetermined width stretched along the southern edge of the plat to Chicago Boulevard on the lakeshore. At the time, the northern 20 feet of Hitchcock Avenue was part of this plat, and the westernmost portion of this alley appears to correspondwith the 20-foot strip.⁷ The plat specified that "the Streets as shown on said pl[at] are hereby dedicated to the use of the Public."

Between 1903 and 1909, Myrtle E. Hellen purchased either all or a substantial portion of the property in the Kenwood plat. After acquiring this property, Hellenpetitioned the circuit court to vacate the Kenwood plat. The portion of Hellen's petition for vacation included in the lower court record indicates that she sought vacation of the plat, in part, because the plat was badly conceived. According to the petition, the widths of the streets and alleys were not clearly laid out and, apparently, the property had never been marked to show the layout of the plat, making it impossible for Hellen to resell the property and artificially increasing the taxable value of her land. Finally, Hellen requested "that the court may vacate the said plat and its lots, blocks, streets, and alleys...." The Roscommon Circuit Court, recognizing that there appeared to be no opposition to Hellen's petition, entered an order vacating the Kenwood plat on September 9, 1909, which was recorded by the register of deeds on August 13, 1912.

In its initial motion for summary disposition, plaintiff submitted an affidavit from the owner of a local title search company, who claimed that according to a title search that she conducted, Hellen never conveyed the 20-foot strip of land at the southern edge of her property (which included the 20-foot strip at issue in this case) when she sold her land years after the plat was vacated. However, both parties later agreed that the information provided in this affidavit was incorrect, because Hellen did include the 20 feet at the southern edge of her property in her subsequent sale of this land.

Further, the parties submitted deeds detailing the subsequent property transfers that included the 20-foot strip. On February 17, 1922, Hellen sold to William J. Tenney a 400-square-foot parcel of property that included the 20-foot strip. On April 28, 1924, Tenney sold a portion of the property, including the 20-foot strip, to Charles H. DeWaele. On May 19, 1924, DeWaele sold a portion of the property, including the 20-foot strip, to Charles T. Hayden. On July 4, 1924, Hayden...