Stribley v. Michigan Marine, Inc.

• Decision Date: 26 July 1972
• Docket Number: No. 3,Docket No. 12888,3
• Citation: 42 Mich.App. 218,201 N.W.2d 702
• Parties: Juliet K. STRIBLEY, Plaintiff-Appellant, v. MICHIGAN MARINE, INC., a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 702

201 N.W.2d 702

42 Mich.App. 218

Juliet K. STRIBLEY, Plaintiff-Appellant, v. MICHIGAN MARINE, INC., a Michigan corporation, Defendant-Appellee.

Docket No. 12888.

Court of Appeals of Michigan, Division No. 3.

July 26, 1972.

Leave to Appeal Denied Oct. 18, 1972.

Released for Publication Oct. 31, 1972.

Harold M. Street, Poppen, Street, Sorensen & Engle, Muskegon, for plaintiff-appellant.

James R. Stariha, White, Spaniola, Knudsen & Stariha, Muskegon, for defendant-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, ^* JJ.

HOLBROOK, Judge.

This case presents the question as to whether certain dredging operations by defendant in its riparian waters in front of its lots in the City of North Muskegon constitute commercial activity. Plaintiff owns and has a cottage on lot 12 in the same plat which faces south on Muskegon Lake. Defendant is the owner of adjoining land to the west consisting of vacant lots 13, 14 and 15, and a commercially zoned point of land extending into the lake adjacent to lot 15.

Defendant commenced building a boat dock and marina on its commercial property. To provide fill for the marina site and to provide deeper water for boats to pass to and from the boat dock and marina, defendant started dredging out part of the underwater shore land in front of its lots 13, 14, and 15.

Plaintiff objected to the dredging operations of defendant and filed a complaint seeking a permanent injunction or in the alternative, damages.

After a hearing ¹ on the order to show cause why a temporary injunction should not issue restraining defendant from dredging in front of lots 13, 14, and 15, the trial court found as follows:

'Reviewing the complaint as amended the court finds that this dredging activity is not a commercial activity as prohibited by the zoning (if such zoning in fact does govern adjoining riparian waters). The claim in the nature of nuisance is anticipatory and not founded on any factual showing and the acts complained of take place only on defendant's land or riparian waters in front of land owned by it. Under these circumstances plaintiff has not shown grounds for equitable relief. The request for injunction or bond is denied.'

The plaintiff's claims in the trial court and on appeal to this Court are as follows: That defendant had notice of the duly recorded agreement containing restrictive covenants and of the City of North Muskegon zoning ordinance prohibiting commercial use of these lots; that defendant's proposed dredging would remove many tons of earth from the riparian waters of lots 13, 14, and 15; that this material would then be placed in proper position for use in building defendant's boat dock and marina; that this would destroy the natural beauty and wild life in the area and destroy the value of plaintiff's property through the expanding commercial activity, noise, and litter from heavy boats using the deepened waters; that the restrictive agreement and zoning restrictions apply to the adjoining waters and lands beneath the surface thereof to the center of the lake; and that the use of the dredged material in this operation would be a commercial use forbidden by the agreement and the zoning ordinance, and should be enjoined.

The defendant's position herein is that the trial court's finding that the dredging activity in itself was not a commercial activity was correct and is supported by the record; and that the dredging of subsurface land owned by defendant is not prohibited by the restrictive agreement or by the ordinance which prohibits the land to be used for commercial activity.

We review chancery cases De novo on the record giving considerable weight to the findings of the trial court. Christine Building Co. v. City of Troy, 367 Mich. 508, 116 N.W.2d 816 (1962); Rice v. Naimish, 8 Mich.App. 698, 706, 155 N.W.2d 370 (1967). The findings and decisions of the trial court are upheld unless this Court is convinced it would have reached a...