Sheridan Drive Ass'n v. Woodlawn Backproperty Owners Ass'n

• Decision Date: 09 December 1970
• Docket Number: Docket No. 7176,No. 3,3
• Citation: 29 Mich.App. 64,185 N.W.2d 107
• Parties: SHERIDAN DRIVE ASSOCIATION, Plaintiffs-Appellees, v. WOODLAWN BACKPROPERTY OWNERS ASSOCIATION, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 107

185 N.W.2d 107

29 Mich.App. 64

SHERIDAN DRIVE ASSOCIATION, Plaintiffs-Appellees, v. WOODLAWN BACKPROPERTY OWNERS ASSOCIATION, Defendants-Appellants.

Docket No. 7176.

Court of Appeals of Michigan, Division No. 3.

Dec. 9, 1970.

Released for Publication March 30, 1971.

James N. McNally, Roscommon, for defendants-appellants.

Timothy M. Green, Green & Maples, St. Johns, for plaintiffs-appellees.

Before HOLBROOK, P.J., and BRONSON and BROWN, ^* JJ.

BROWN, Judge.

As the late Judge Watts of this Court observed in a related case, Michigan Central Park Association v. Roscommon County Road Commission (1966), 2 Mich.App. 192, 139 N.W.2d 333, 'The seeds for the action here being appealed were sown back at the turn of the century when the land involved, lying along Higgins lake, was platted.' Here, as in Michigan Central Park Association, the plattor, in 1902, laid out lots and streets in a plat known as 'Woodlawn' along the west shore of the same lake. The plat designated that all streets therein were dedicated to the public, including Sheridan Drive which is contiguous to Higgins Lake and runs north and south the entire length of the subdivision.

The plaintiffs are the owners of lots which front on Sheridan Drive. The defendants are the owners of lots to the rear and west which are not adjacent to Sheridan Drive. They are referred to as the back lot or backproperty owners. Plaintiffs claim that they have riparian rights in the lake immediately opposite their lots because their lots broder on Sheridan Drive which is contiguous to the lake shore. Plaintiffs complain that defendants have been using land which is a part of Sheridan Drive for lounging, picnicking, launching boats, bathing, and placing docks out into the water which are attached to the shore. They seek to permanently enjoin defendants from trespassing and usurping their riparian rights.

Defendants claim that this suit should be dismissed because the 1958 Roscommon county circuit court case #1138, Fox v. Phillips, adjudicated the issues here involved. That case involved some of the same parties, some of the same issues, and the identical property here involved, excepting that in the so-called Fox case the plaintiffs were some of the back lot owners and the defendants were some of the front lot owners. The Honorable Herman Dehnke, who presided in the Fox case, held that the back lot owners have the same rights as the front lot owners to the use of Sheridan Drive and the access it affords to Higgins Lake. The defendants in Fox were enjoined from 'in any way interfering with the use of Sheridan Drive in such subdivision and the access it affords to Higgins Lake by the plaintiff'.

The present case was submitted to the late Honorable Rupert B. Stephens, acting in Roscommon county, on a sketchy stipulation of facts. No testimony was taken. Before a decision was rendered Judge Stephens died and counsel agreed that the case be submitted to the presiding judge Honorable Dennis J. O'Keefe for decision. The stipulated facts may be summarized as follows:

1. Sheridan Drive is incorporated into the Rescommon County Road system.

2. As originally platted in 1902 Sheridan Drive varied in width from 56 to 66 feet. There may be some change in width due to accretion or erosion.

3. Four of the present plaintiffs were defendants in the Fox case in 1958.

4. It is agreed that the sole question to be decided is whether or not plaintiffs have riparian rights in and to the shore of Higgins Lake, such rights being derived from the common law as judicially construed by the courts of this state.

5. It is agreed that if the Fox case is not determinative of the issues then there have been actual trespasses upon plaintiffs' riparian rights. However, should the court determine this case on the basis of the Fox case then there would be no infringement of the plaintiffs' riparian rights.

On January 29, 1969, Judge O'Keefe entered a judgment. He found: (1) that there is no intervening land between Sheridan Drive and the lake; (2) that the defendants' lots are not contiguous to either the road or the lake; (3) that the 1958 Roscommon circuit court action, Fox v. Phillips, did not adjudicate the issues presented in this case; (4) that plaintiffs have riparian rights in the shore of the lake; (5) that defendants and the public in general have been trespassing on the beach without right, in derogation of plaintiffs' riparian rights; (6) that defendants and the public must cease and desist from using Sheridan Drive as a public beach; and (7) Sheridan Drive is a public road. In consequence of these findings the judgment restrained defendants from trespassing on the beach except at certain points where the various streets terminate at the shore of Higgins Lake. The judgment also ordered plaintiffs to remove all obstructions within the road as presently used, and that it be opened to the public as a thoroughfare.

The issues here involved may be stated as follows:

1. Is the Fox case determinative of the instant case by the principle of res judicata?

2. Did the trial court err in determining that plaintiffs have riparian rights along the shore of Higgins Lake?

The test to determine the applicability of the principle of Res judicata is whether the same evidence is used to sustain both subjects of litigation. As stated in Rose v. Rose (1968), 10 Mich.App. 233, 236, 157 N.W.2d 16, 18:

'The test for determining identity of claims is set forth in 30A Am.Jur., Judgments § 365 (p. 407):

"In the application of the doctrine of Res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the...