Tomecek v. Bavas
| Decision Date | 30 December 2008 |
| Docket Number | Docket No. 134665 (Calendar No. 6). |
| Citation | 759 N.W.2d 178,482 Mich. 484 |
| Parties | Frank J. TOMECEK, Jr., and Janis H. Tomecek, Plaintiffs-Appellees, v. Andrew Lucian BAVAS, Joyce Bavas, Inez Hildegard Bavas, Stanley Francis Stasch, Julia Stasch, Martha Stasch, Patricia M. Curtner, Timothy V. McGree, Peter A. Stratigos, Alice M. Stratigos, Pamela Krueger, Devereaux Bowly, Jr., David N. Derbyshire, Ellen R. La Fountain, Jonathan Rodgers, Royal Kennedy Rodgers, Lee Stahl, III, and Susan Stahl, Defendants-Appellants, and Indiana Michigan Power Company, doing business as American Electric Power Company, Inc., Michigan Department of Labor and Economic Growth, and Berrien County Drain Commissioner, Defendants-Appellees, and Daniel Johnson, Scott Loess, Kathleen Loess, Jane Henkle, Richard Cragg, Lois Zyer, Arthur C. Mertz Revocable Trust, Peter Levy, Benita Levy, Lakeside Property Owners, Chikaming Township, Robert Forker, Jr., New Buffalo Savings Bank Fifth Third Bank, Shoreline Bank, Semco Energy, Inc., Semco Energy Gas Company, SBC Ameritech Corporation, Michael L. Jones, Laura L. Avery, and Julia E. Pietras, Defendants. |
| Court | Michigan Supreme Court |
Kelley Cawthorne, PLLC (by Frank J. Kelley and Steven D. Weyhing), Lansing, for Walloon Lake Ass'n., amicus curiae.
Law, Weathers & Richardson, P.C. (by Clifford H. Bloom), Grand Rapids, for Michigan Lake & Stream Associations, Inc., amicus curiae.
This case involves real property to which plaintiffs seek an easement for the purpose of connecting to a city sewer across the lots of their neighbors. The issues are (1) whether the Land Division Act (LDA)1 can be used to create substantive property rights, such as a utility easement, (2) whether an easement by necessity for utilities should be allowed in this case, and (3) whether the restrictive covenant that runs with the land in question bars the easement.
The Court of Appeals held that the LDA provides for substantive changes to property rights and gives the trial court the authority to revise the plat to allow a utility easement. It also concluded that an easement by necessity for utilities could appropriately be created in this case and that the restrictive covenant does not bar the easement.
We affirm the result of the Court of Appeals opinion and conclude that the original grantors intended to allow utility access to the Tomeceks' property through the central drive easement. We agree that the restrictive covenant does not bar the easement. However, we reverse the Court of Appeals holding that the LDA can alter substantive property rights. Finally, it was unnecessary for the Court of Appeals to address whether an easement by necessity should be recognized in Michigan and applied in this case. Therefore, we affirm the Court of Appeals opinion in part, reverse it in part, and vacate it in part.
Plaintiffs Frank and Janis Tomecek own property in the O.T. Henkle subdivision along Lake Michigan in Berrien County. They wish to build a house on their property (Lot 2).2 Defendants claim that a restrictive covenant that runs with the plat prevents plaintiffs from erecting a building on Lot 2. The covenant states that a house cannot be built on Lot 2 "unless and until a municipal sanitary sewer line is made available to the premises."
Because Lot 2 is landlocked, plaintiffs have an easement3 (the central easement) over Lots 1 and 3 through which they access their property from Lake Shore Road. Plaintiffs claim that they are entitled to use the central easement to gain access to the municipal sewer line.
A familiarity with the history of the O.T. Henkle subdivision is helpful in understanding this case. In the early 1920s, O.T. Henkle acquired approximately five acres of land on Lake Michigan in Chikaming Township, Berrien County. The property passed from O.T. Henkle to C.W. Henkle, Gladys Farclough, and Jane H. Henkle (collectively referred to as "the original grantors").4 In 1967, the original grantors conveyed what is now Lot 1 to one of the defendants, reserving an easement for the benefit of Lot 2. The easement runs from Lake Shore Road along the southern boundary of Lot 1.5
Over the next few years, the original grantors sold Lots 3, 4, and 5, all subject to an easement running along the southern portion of the property ("the south drive easement").6 Lots 3 and 4 were also subject to the central drive easement.7 In 1975, the plat was recorded in the county records. At the time of platting, Lots 3, 4, and 5 used the south drive easement for utilities access8 and for right-of-way access. Also, in 1975, the original grantors recorded a restrictive covenant prohibiting the construction of a building on Lot 2 until a municipal sanitary sewer service was made available to the premises.9 Thus, when the property was platted in 1975, both the central and south easements were identically identified as "drive easement" on the plat, and the south easement already had utilities on it.
In 1976, the original grantors conveyed Lot 2 to plaintiffs. When plaintiffs bought Lot 2, the original grantors provided them with a drawing showing a good spot to build a home on the lot.10
In 2001, plaintiffs requested a variance from the Chikaming Township Zoning Board of Appeals to construct a home on their lot. When the board granted the variance, defendants appealed, claiming that the restrictive covenant prevented plaintiffs from building a home because they did not have sewer access. The trial court granted summary disposition to plaintiffs, ruling that the original grantors intended to allow plaintiffs to build a home on Lot 2. The trial court observed that defendants had already run utility lines on the south easement, and plaintiffs deserved to do the same with their central easement.
A divided Court of Appeals panel affirmed the trial court's decision in a published opinion.11 It held that the LDA12 empowered the trial court to revise the plat to include utilities in the central easement. The LDA, it concluded, permits a trial court to do more than merely correct errors; it may alter a plat to affect underlying substantive property rights. The Court of Appeals held, in addition, that plaintiffs were entitled to an easement by necessity for utilities.
We review de novo a trial court's decision on a motion for summary disposition.13 The extent of a party's rights under an easement is a question of fact, and a trial court's determination of the facts is reviewed for clear error.14 The proper interpretation and application of a statute presents a question of law that we consider de novo.15
We must determine if the central easement running from Lake Shore Road to Lot 2 includes utility access, or if its use is strictly limited to ingress and egress. Under well-established Michigan law, "[t]he use of an easement must be confined strictly to the purposes for which it was granted or reserved."16 Exacting "magic words" are not required on a plat to create an easement.17 When interpreting deeds and plats, Michigan courts seek to effectuate the intent of those who created them.18
Plaintiffs assert that, when the original grantors platted the subdivision, they assumed that both the south easement and the central easement included access for utilities. Defendants assert the contrary and add that Lot 2 was always intended to remain vacant.
It is undisputed that the central and south easements are identically labeled "drive easement" on the plat. At the time of platting, the central easement was used only for ingress and egress to Lot 2; there were no utilities on the easement. However, the south easement was used both as a driveway and for telephone and electrical lines to Lots 3, 4, and 5.
We find a strong inference that the words "drive easement" on the central easement were intended to have the same meaning as "drive easement" on the south easement. We conclude that the original grantors would have labeled the easements differently had they intended to allow utilities on the south easement, but not on the central easement. And we conclude that the original grantors intended the central and south easements to have the same scope: both road access for ingress and egress and utility access.
As early as 1883, Michigan courts recognized that a party using a right-of-way for a particular purpose cannot prevent a subsequent party from making the same use of the property. In Bell v. Todd, the plaintiffs sought to enjoin the defendant from blocking access to a road that was platted but never constructed.19 Plaintiff Bell had previously blocked unbuilt roads in the same plat. The Court dismissed the case, stating:
[I]t also appears that Railroad street south of South street is enclosed and occupied by Bell himself, so that he is doing in his own individual interest in respect to this very street precisely what he seeks to enjoin defendant from doing. It would be preposterous to grant the relief prayed for on his application under such circumstances.[20]
Although two streets, not one, are involved here, we believe Bell is instructive. Defendants use their "drive easement" for utilities and seek to prevent plaintiffs from using their "drive easement" for the same purpose. In the words of Justice Cooley in Bell, to allow such a result would be "preposterous."
It is apparent, also, that the grantors envisioned that a house would be built on Lot 2 and, by extension, that the central easement would include utilities. This may be gleaned from two drawings by C.W. Henkle, one of the original grantors. The first was made...
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