Tomecek v. Bavas
| Citation | 740 N.W.2d 323,276 Mich. App. 252 |
| Decision Date | 03 July 2007 |
| Docket Number | Docket No. 258907. |
| Parties | Frank J. TOMECEK, Jr., and Janis H. Tomecek, Plaintiffs/Counter-Defendants-Appellees/Cross-Appellants v. Andrew Lucian BAVAS, Joyce Bavas, Inez Hildegard Bavas, Stanley Francis Stasch, Julie Stasch, Martha Stasch, Patricia M. Curtner, Timothy V. McGree, Peter A. Stratigos, Alice M. Stratigos, and Pamela Kruegar, Defendants/Counter-Plaintiffs-Appellants/Cross-Appellees, and Devereaux Bowly, Jr., Michael L. Jones, Laura L. Avery, Julia E. Pietras, David N. Derbyshire, Ellen R. La Fountain, Jonathan Rodgers, Royal Kennedy Rodgers, Lee Stahl, III, and Susan Stahl, Defendants-Appellants/Cross-Appellees, and Indiana Michigan Power Company, d/b/a 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, and SBC Ameritech Corporation, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Warner Norcross & Judd, LLP (by Devin S. Schindler and Ryan D. Cobb), Grand Rapids and Jerry G. Johnson, St. Joseph, for Frank J. Tomecek, Jr., and Janis H. Tomecek.
Dickinson Wright, PLLC (by Kevin J. O'Dowd and Keith J. Brodie), Grand Rapids and DeFrancesco Dienes, PC (by Scott A. Dienes), Stevensville, for Andrew L. Bavas and others.
Before: ZAHRA, P.J., and HOEKSTRA and OWENS, JJ.
Defendants/counterplaintiffs Andrew Bavas, Joyce Bavas, Inez Bavas, Stanley Stasch, Julie Stasch, Martha Stasch, Patricia Curtner, Timothy McGree, Peter Stratigos, Alice Stratigos, and Pamela Kruegar and defendants Devereaux Bowly, Jr., Michael Jones, Laura Avery, Julia Pietras, David Derbyshire, Ellen LaFountain, Jonathan Rodgers, Royal Rodgers, Lee Stahl, III, and Susan Stahl1 appeal as of right, and plaintiffs Frank and Janis Tomecek cross-appeal as of right, the October 15, 2004, "Stipulated Corrected Judgment Partially Revising Plat of O.T. Henkle." We affirm.
Plaintiffs and defendants are neighboring property owners in the O.T. Henkle Subdivision along Lake Michigan in Chikaming Township, Berrien County. The subdivision is bordered on the west by Lake Michigan and on the east by Lake Shore Road. Plaintiffs own Lot 2 in the subdivision and wish to build a home on this lot. However, by virtue of a 1974 restrictive agreement, they cannot do so "unless and until a municipal sanitary sewer line is made available to the premises." Lot 2 is landlocked, with ingress and egress afforded by way of a "drive easement" over Lots 1 and 3 from Lake Shore Road. Plaintiffs wish to use this "drive easement" to access sewer and other utilities. Defendants assert that this is an impermissible use of the drive easement.
The underlying facts are not in dispute. O.T. Henkle originally owned all the property in the plat. On his death, the property passed to C.W. and Virginia Henkle, Gladys Fairclough, and Jane H. Henkle (referred to by the parties as the "original grantors"). Before the property was platted in 1976, it was divided into six parcels, five of which were sold to the defendants or their predecessors in interest and one of which, Lot 2, was retained by the original grantors. In 1976, Lot 2 was conveyed to Jane Henkle and plaintiffs jointly.2 Plaintiffs owned Lot 2 jointly with Jane Henkle from 1976 until 1999, when plaintiffs became the sole owners of the lot by quit-claim deed.
When Lot 1 was conveyed in 1967, it was conveyed subject to an easement for beach access and subject to another easement, for the benefit of Lot 2, for the installation, maintenance and repair of utility lines, poles, pipes, and conduits over the northerly five feet of Lot 1. However, in 1972, the portion of Lot 2 at which the utility easement abutted the property was conveyed to the owners of Lot 1, thus separating Lot 2 from the utility easement over the northerly portion of Lot 1. As a result, after the 1972 conveyance, Lot 2 lacked all access to utilities from Lake Shore Road.
In 1975, the O.T. Henkle plat was filed with the township.3 The plat depicts an approximately 10-foot drive easement for Lots 3, 4, and 5 along the southern edge of the plat (referred to by the trial court and the parties as the "south drive easement"), a water easement running from Lake Shore Road through Lots 3 and 4 to Lot 5, and a 20-foot-wide drive easement over Lots 1 and 3 for the benefit of Lots 2 and 4 (referred to by the trial court and the parties as the "central drive easement").4
In 1978, the original grantors purported to grant to the township an easement for sewer lines within the south drive easement. It is undisputed that the original grantors no longer owned any legal interest in the property through which the easement was purported to be granted, having conveyed fee-simple title in Lots 3, 4, and 5 to defendants or their predecessors in interest before 1978.
In 1984, the original grantors purported to convey to plaintiff Janis Tomecek fee-simple title to all areas identified on the plat as drive easements and parking easements. As with the purported 1978 grant of an easement for sewer lines, it is undisputed that this conveyance was ineffective because in 1984 the original grantors lacked any legal interest in the property containing the platted easements.
As the trial court noted, the dispute in this case is whether the central drive easement can also be used for the utility and sewer lines needed pursuant to the restrictive agreement for plaintiff to build on Lot 2. In their amended complaint, plaintiffs asked the trial court to (1) issue a declaratory judgment delineating the extent of the central drive easement as platted, (2) establish an easement by necessity for public utilities, coexistent with the central drive easement, and (3) correct or revise the plat to provide for a utilities easement for the benefit of Lot 2, consistent with the intent of the original grantors that all lots in the plat have access to utilities and that the lot owners be allowed to build on them.
The trial court granted plaintiffs' motion for summary disposition delineating the extent of the central drive easement as platted. The court explained that a declaration of the extent of plaintiffs' rights in the platted easement was necessary in order to guide plaintiffs' future conduct and preserve their legal rights. The trial court then concluded that the platted drive easement was unambiguous. It entitled plaintiffs to use the easement as "a [right of] way which grants a right of passage over land." However, the trial court refused to establish an easement by necessity for public utilities, thus granting defendants' motion for summary disposition on that count.
Finally, the trial court considered whether plaintiffs were entitled to revision of the plat pursuant to MCL 560.221 and MCL 560.226(1). The trial court ultimately concluded that plaintiffs had met the burden necessary to warrant a revision of the plat to include a utility easement coexistent with the central drive easement for the benefit of Lot 2. The trial court observed that defendants "have already run utility lines under their own [south] drive easement," and, therefore, it found "very compelling" plaintiffs' argument that defendants could not reasonably challenge plaintiffs' request to amend or revise the plat to allow plaintiffs to run utilities under the central drive easement. Further, the trial court noted:
... Defendants have not submitted any admissible evidence which would support a reasonable objection to Plaintiff's [sic] request to revise the plat, nor have they offered any admissible evidence of any reasonable objection which would be of any value to the public. All of the objections asserted by Defendants relate [only] to private concerns and involve purely private interests.
The trial court granted plaintiffs' motion for summary disposition, ruling that plaintiffs "may revise the plat to include a utility easement over the central drive easement for the benefit of Lot 2."
Defendants argue that the trial court erred when, basing its authority on the Land Division Act, it ordered the revision of the plat to create a utility easement for Lot 2 in the land subject to the existing drive easement to the property. We disagree.
We review de novo a trial court's decision on a motion for summary disposition. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). "The extent of a party's rights under an easement is a question of fact for the trial court, which we review for clear error." Little v. Kin, 249 Mich.App. 502, 507, 644 N.W.2d 375 (2002), aff'd 468 Mich. 699, 664 N.W.2d 749 (2003), citing Dobie v. Morrison, 227 Mich. App. 536, 541-542, 575 N.W.2d 817 (1998). "A finding is clearly erroneous where, although there is evidence to support the finding, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made." Ambs v. Kalamazoo Co. Rd. Comm., 255 Mich.App. 637, 652, 662 N.W.2d 424 (2003). The proper interpretation and application of a statute presents a question of law that we consider de novo. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003).
The title of the Land Division Act, MCL 560.101 et seq., notes that, among other things, the act is designed to (1) "regulate the division of land," (2) "provide for proper ingress and egress to lots and parcels," (3) "promote proper surveying and...
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