Schumacher v. Dep't of Natural Resources

• Decision Date: 03 April 2007
• Docket Number: Docket No. 266524.
• Citation: 275 Mich. App. 121,737 N.W.2d 782
• Parties: Matthew J. SCHUMACHER, Plaintiff-Appellee, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

737 N.W.2d 782

275 Mich. App. 121

Matthew J. SCHUMACHER, Plaintiff-Appellee, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.

Docket No. 266524.

Court of Appeals of Michigan.

Submitted March 6, 2007, at Lansing.

Decided April 3, 2007, at 9:00 a.m.

Released for Publication August 29, 2007.

Clark Hill P.L.C. (by Mahesh K. Nayak, Paul F. Novak, and Paul C. Smith), Detroit, for plaintiff.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Barbara A. Schmidt, Assistant Attorney General, Lansing, for the defendant.

Before: FORT HOOD, P.J., and WHITE and BORRELLO, JJ.

PER CURIAM.

This equitable action concerning the scope of an easement is before us after remand to the trial court. See Schumacher v. Dep't of Natural Resources, 256 Mich.App. 103, 663 N.W.2d 921 (2003) (Schumacher I). Defendant appeals as of right from the trial court's order on remand granting plaintiff an easement by necessity for ingress and egress and ruling that the scope of the easement will be determined by local ordinances. We reverse and remand for further proceedings.

In the first appeal, Schumacher I, the parties cross-appealed the trial court's order granting an easement by necessity to plaintiff, but limiting the use to nonmotorized vehicles. Id. at 104, 663 N.W.2d 921. This Court affirmed in part, reversed in part, and remanded for a determination regarding the proper scope of the easement. Id. at 110, 663 N.W.2d 921.

The pertinent facts are set forth in Schumacher I:

In 1896, the state acquired a square, nine-parcel block of land located in Midland County. The state also acquired a tenth parcel that was immediately south of the parcel in the southwest corner of the block. The other adjacent parcels immediately to the south and north of this square, nine-parcel block were privately owned.

Between 1902 and 1904, the state sold the eastern column of three parcels, the western column of three parcels, and the tenth parcel to third parties, retaining only the middle column of three parcels (the subject property). Although the sale left the subject property without ingress and egress, there is no evidence indicating that the state retained an express easement to provide access. Between 1904 and 1911, the state conveyed the subject property to Charles A. Trumbull, and there is, again, no evidence that this conveyance contemplated ingress and egress. The subject property remained undeveloped, and was eventually conveyed to plaintiff.

In 1932, the eastern and western columns of three parcels, as well as two parcels to the south of the subject property, reverted back to the state. The state purchased the third parcel (the easternmost parcel) to the south of the subject property in 1942. The state purchased two of the three parcels to the north of the subject property in 1946. The evidence suggests that the third parcel to the north (the westernmost parcel) remains privately owned.

In 1990, the state granted one of Trumbull's successors in interest to the subject property a permit to clear a trail running across state land to provide ingress and egress. However, the trail was never cleared, and the permit expired.

In 1995, plaintiff purchased the subject property. He applied for, but was denied, a similar permit to clear a trail running across state land.

Plaintiff brought suit against the state, contending that the subject property had an "implied easement of necessity" for ingress and egress as a result of the state's conveyances between 1902 and 1912. The trial court agreed that plaintiff was entitled to an implied easement by necessity. However, the trial court limited the scope of the easement to nonmotorized vehicles, opining that nonmotorized vehicles were the only form of transportation that the state could have contemplated when making the conveyances. The trial court rejected plaintiff's contention that the scope of the implied easement could reasonably expand with technological advances. [Id. at 104-106, 663 N.W.2d 921.]

In Schumacher I, this Court agreed with plaintiff that the trial court erred by restricting "the easement to transportation used in the early 1900s." Id. at 108, 663 N.W.2d 921.

This does not mean that plaintiff should have unfettered access to his property. Rather, this case must be remanded for a determination of the uses reasonably contemplated by the original grantor in the early 1900s, considering both anticipated evolutionary change and the isolated, wild condition of both properties. The easement must be limited to what is necessary for reasonable enjoyment of the property, with minimum burden on the servient estate. [Id.]

This Court remanded to the trial court "for a determination regarding the proper scope of the easement." Id. at 110, 663 N.W.2d 921.

On remand in the trial court, plaintiff asserted that the easement should be defined in accordance with Edenville Township Zoning Ordinance § 16.04, which provides in pertinent part:

A road or street shall have a 66 feet wide right of way. Each road or street shall be provided with 1 safe exit and 1 safe entrance from a public thoroughfare. Such exit and entrance may be combined or provided separately. Approval for location of such exit and entrance shall be obtained from the County Road Commission or MDOT, who shall also approve the design and construction thereof in the interest of safety, adequate drainage, and other public requirements. A road or street shall be centered in the right-of-ways. A road or street shall be a minimum 20 feet in width, with a minimum 12 feet overhead clearance to allow access for emergency vehicles.

Regarding the proposed scope of the easement, plaintiff maintained that he planned to seek a zoning change of his land from recreational to residential, so he could subdivide the property into approximately 39 smaller parcels for home sites. Plaintiff asserted that "this is the highest and best use to which the Property may be put." Plaintiff proposed that the scope of the easement should be

[I]n the form of a roadway for public and private access extending from the end of Shearer Road, approximately 7/10 of a mile through the Au Sable State Forest to the northwest corner of the Property.

[The easement] includes the following:

• Two separate lanes, each approximately 17 feet wide, paved with either asphalt or cement.

• A median approximately 20 feet wide.

• Two road shoulders, each approximately 4 feet wide.

• Two irrigation ditches, each approximately 4 feet wide.

The total width of the proposed easement will be 70 feet. [Plaintiff's proposed] plan is substantially consistent with Edenville Township Ordinance, Section 16.04 . . . which requires that a road or street shall have a minimum width of 66 feet. The easement should otherwise conform in all respects with the requirements of Section 16.04. The easement shall be utilized by motorized vehicles.

Plaintiff also indicated that "the easement should also include all necessary utilities . . . run[ning] underground along the median." To construct the easement, plaintiff admitted that he must clear "a substantial number of trees."

The trial court requested briefs regarding whether the scope of the easement by necessity must comply with applicable Edenville Township ordinances. Plaintiff cited no authority on point, but suggested that the township ordinance act, MCL 41.181 et seq., gives Edenville Township "the authority to enact ordinances regarding streets, roads and highways, and to utilize its police powers to enforce such ordinances."

The trial court declined to consider plaintiff's "most recent request that the Court consider his anticipated development of Sequoya Manor Subdivision with the addition of some 39 home sites in accessing the scope of the easement," characterizing it as "an issue beyond the scope of the litigation and authority of the Court."¹ The trial court ruled:

[I]n conformity with the Court of Appeals' decision, the scope of [plaintiff's] easement for ingress and egress should provide for (i) ingress and egress for motor vehicles over the State's property in the least intensive manner consistent with the Edenville Township's Zoning and Land Use Ordinances, together with the access to improve the private road; and (ii) access for utilities including electricity consistent with state and federal law and municipal regulation.

This appeal ensued.

I

Defendant asserts that the trial court erred on remand by not following the law of the case, i.e., the guiding principles set by this Court for the trial court to apply on remand when determining the scope of the implied easement by necessity. Defendant maintains that the trial court's opinion is a recitation of the parties' arguments without any application to the law of the case. Defendant contends that plaintiff is not entitled to the "highest and best use" of his property; rather, plaintiff is entitled to a reasonable easement that minimally burdens the servient estate.

Whether a trial court followed an appellate court's ruling on remand is a question of law that this Court reviews de novo. City of Kalamazoo v. Dep't of Corrections (After Remand), 229 Mich.App. 132, 134-135, 580 N.W.2d 475 (1998). A trial court's factual findings are reviewed for clear error and its conclusions of law are reviewed de novo. In re Cummin Estate, 267 Mich.App. 700, 704, 706 N.W.2d 34 (2005), rev'd in part on other grounds 474 Mich. 1117, 712 N.W.2d 447 (2006).

Generally, this Court's ruling on an issue in a case will bind a trial court on remand and the appellate court in subsequent appeals. Grievance Administrator v. Lopatin, 462 Mich. 235, 260, 612 N.W.2d 120 (2000). The law of the case doctrine provides:

"[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain...