Unverzagt v. Miller, 56.

• Decision Date: 07 September 1943
• Docket Number: No. 56.,56.
• Citation: 10 N.W.2d 849,306 Mich. 260
• Parties: UNVERZAGT et al. v. MILLER.
• Court: Michigan Supreme Court

306 Mich. 260

10 N.W.2d 849

UNVERZAGT et al.

v.MILLER.

No. 56.

Supreme Court of Michigan.

Sept. 7, 1943.

Action by Irwin Unverzagt and others against George E. Miller to determine the right of owners of cottages in a summer resort to have groceries and other provisions delivered to cottages by outside merchants and tradesmen without interference from defendant, who owned fee in streets and alleys in the resort. From a decree declaring defendant's right to license merchants, tradesmen, and peddlers for the right to use the streets and alleys, plaintiffs appeal.

Decree modified in accordance with opinion and otherwise affirmed.Appeal from Circuit Court, Ottawa County, in Chancery; Cornelius Hoffius, Judge Presiding.

Before the Entire Bench.

Jarrett N. Clark, of Zeeland, for plaintiffs and appellants.

Diekema, Cross & Ten Cate, of Holland, for defendant and appellee.

BOYLES, Chief Justice.

Plaintiffs are owners of cottage properties in Macatawa Park, a summer resort in Allegan and Ottawa counties, on Lake Michigan. Defendant owns the fee in the highways, streets and alleys in the park. The question we are asked to decide is, whether the cottage owners have the right to order groceries, ice, milk and other goods for their use as residents of the park from merchants and tradesmen outside the park and have these goods delivered to the cottages by the persons from whom they are bought, without interference from the defendant. The defendant claims the right to prevent such use of the streets in the park unless the merchant or tradesman obtains permission from the defendant and pays a license fee for use of the streets. On this particular issue, the decree entered by the lower court provides:

‘* * * that the defendant, Georgie E. Miller, is the owner in fee of the roads, streets, drives, alleys and parks in Macatawa Park; that the same are not public, but private thoroughfares; that the defendant as such owner has the right to regulate, license and control same on a uniform basis, as this right has been exercised in the past.

‘That said roads, drives, walks and alleys are subject to an easement of the cottage and land owners at Macatawa Park, the members of their families, their servants and guests, to use the same in the customary and ordinary manner in which one goes to and from his premises; that the easement acquired and possessed by the cottage owners in the drives, walks, roads and alleys has become definite and fixed as to its limitations, extent and restrictions and may not be changed, enlarged, curtailed or diminished.

‘That merchants, tradesmen and peddlers have no right to use the roads, streets, drives or alleys as public thoroughfars; that defendant is permitted to license merchants, tradesmen and peddlers for the right to use the roads, streets, drives and alleys of Macatawa Park.’

There is no occasion to repeat here the history and growth of the development of Macatawa Park. This has been before this court and is fully set out in Weihe v. Macatawa Resort Co., 198 Mich. 334, 164 N.W. 510. It is sufficient to say that the defendant herein has succeeded to all of the rights and title of the former Macatawa Resort association or company referred to in that opinion. Defendant is the owner of the fee in highways, roads, streets and alleys in the park, subject to an easement and right of use by the owners of cottages and lots within the park. The rights of the cottage owners have been further considered by this court in Van Wieren v. Macatawa Resort Co., 235 Mich. 606, 209 N.W. 825;Ten Broek v. Miller, 240 Mich. 667, 216 N.W. 385, 55 A.L.R. 768; and Antisdel v. Macatawa Resort Co., 243 Mich. 444, 220 N.W. 768.

The parties in this case are not far apart in their claims. The bill of complaint alleges: ‘That said summer homes are valuable summer homes, use the roads, streets, as summer homes, use the roads, streets, alleys and walks, and secure their provisions, foodstuffs, milk, ice, water and electricity and such other incidentals as are from time to time deemed necessary. And that if they cannot use said roads, streets and walks and secure such provisions, foodstuffs, milk, ice, water and electricity as and when needed their summer homes and their investments will become valueless and of no account to them, and great and irreparable injury will be done them.’

The truth of this allegation is admitted in defendant's answer in which defendant claims: ‘* * * that part of the real value of the property of the plaintiffs as summer homes is the fact that the roadways, bathing beaches, parks, etc., are privately owned and that public picnics, undesirable persons, traffic jams, excessive automobile traffic, abuse of the bathing beaches, etc., are excluded from Macatawa Park, and that plaintiffs and others occupying the cottages are saved from such annoyances.’

Plaintiffs expressly disclaim any desire that the streets in the park be opened to general use by the public. They are agreed that hawkers and peddlers of goods, wares and merchandise should not be allowed to practice their trade or business in the park. As counsel for plaintiffs phrases their claim: ‘I think the judge has put in one more thing than we claim, which we don't claim, we are not claiming the right to have Tom, Dick and Harry go up...