Waubun Beach Ass'n v. Wilson

• Decision Date: 02 March 1936
• Docket Number: No. 20.,20.
• Citation: 274 Mich. 598,265 N.W. 474
• Parties: WAUBUN BEACH ASS'N et al. v. WILSON et al.
• Court: Michigan Supreme Court

274 Mich. 598

265 N.W. 474

WAUBUN BEACH ASS'N et al.

v.WILSON et al.

No. 20.

Supreme Court of Michigan.

March 2, 1936.

Bill by the Waubun Beach Association, a corporation, and others, against Robert L. Wilson, Theodore R. MacClure, Julia MacClure, and others. From the decree, the two last-named defendants appeal.

Reversed as to appellants, and decree to be entered in accordance with opinion.Appeal from Circuit Court Cheboygan County, in Chancery; Frank A. Bell, Judge.

Argued before the Entire Bench.

Hudson & Coates, of Sault Ste. Marie, for appellants.

Shepherd & Berry, of Cheboygan, for appellees.

POTTER, Justice.

Plaintiffs herein are the owners of land in a summer resort plat known as Waubun Beach, on Burt Lake, in Cheboygan county, and file a bill against the owners of the lands in the plat other than themselves to establish an easement across the lands of defendants and to restrain the closing of an alleged right of way across the same or from interfering with plaintiffs' use thereof.

Upon the hearing of the case, the court found there was no right of way across the premises in question by adverse user or by prescription, a finding sustained by the testimony and from which plaintiffs have not appealed; that the only legal question involved was whether there was a way of necessity. The trial court found as a matter of fact there was no practicable way for any of the property owners to reach their property except by boat or along the trail or claimed easement in controversy here. The trial court held there was a way of necessity for all of the owners of lands in the plat over all of the lots from 1 to 34 thereof. A decree was entered that plaintiffs and defendants, being severally the owners of all the lots in the plat from 1 to 34, have, respectively, for the purposes of ingress and egress to and over the public highways of the township of Tuscarora, Cheboygan county, a right of way by necessity over, upon, and across each and every of the premises of the other parties in said plat from lot 1 to and including lot 34, and immediately adjoining said plat on the north to the township highway at the foot of the bluff, the center line of which was described in the decree; that said right of way was reciprocal between the parties plaintiffs or defendants, and all parties had the same right of passage for ingress and egress over the respective lots of the other parties thereto. From the decree entered, defendants MacClure appeal.

The lands and premises were wild and uncultivated lands, had been cut over, and the timber removed during the period when this territory was lumbered. Some one conceived the idea of platting and selling the lots involved, and they were platted. The Waubun Beach Association, one of the plaintiffs herein, is a corporation organized among the owners of lots in the plat. The road in question claimed to be a right of way or easement was a trail through the woods, never taken over by public authorities or worked or improved, and, although it was traveled as occasion required by various people, it did not constitute a public highway.

As pointed out in South Branch Ranch Co. v. Emery, 191 Mich. 188, 157 N.W. 419, the road must not only be traveled upon, but some act on the part of the public authorities must be shown from which it might be concluded the authorities had taken charge of the highway. This is what the Legislature had in mind and intended to include in using the words used as such.

There is no element of public control over the road, and we understand it is not claimed the trail in question constituted a public highway. The trial court held there was no right of way across the premises in question by adverse user or by prescription. The sole question is whether there is a way by necessity.

The plat of Waubun Beach consists of 54 lots, 60 feet in width, which extend at right angles, or nearly so, to the margin of the lake. Lots 48 to 54 border on the back on a street adjoining the Chippewa Beach plat. Appellants are the owners of one-third of the lots in the plat, owning lots 4 and 5, 7 and 8, 35, 36, 37, and 38, and 42 to 51, inclusive, or 18 out of the 54 lots in the plat. There is an old township road along the line between sections 1 and 2 of the township. There was no road extending from the south end of the plat until 1932, when one was opened by the appellants extending across lots 41 to 50 and connecting with the street or roadway on the plat south of that in question. The cottages of those who have built upon the plat are on the comparatively flat land extending a short distance back from the shore of the lake. The back part of the lots rises abruptly in a bluff to the higher land farther east. The land in question, prior to its having been platted, was owned by one E. R. Smith. It was platted in 1914; the plat having been accepted by the township November 16th of that year, and January 4, 1915, was accepted by the proper authorities of the county and recorded in the register of deeds' office of Cheboygan county January 18, 1915.

In the fall of 1931, appellant Thomas R. MacClure concluded he wanted to close this trail across his lots near his residence, and gave notice to the other owners of lots in the plat that he was the owner of lots 4, 5, 7, and 8 of Waubun Beach, located in the township of Tuscarora, part of lot 1, section 2, a part of lots 1 and 2, section 11, township 35 north of range 3 west. He also advised these owners that he had recently acquired the triangular piece of land situated in the southeast corner of section 2 which lies back of lots 1 to 20, inclusive. He offered to dedicate a strip of land 20 feet in width to extend from the southeasterly line of lot 13 of the subdivision in an easterly direction to the public highway on the easterly line of section 2, to be used as a temporary right of way for the benefit of owners or occupants of lots in the subdivision until such time as a public right of way be provided for highway purposes, not to exceed three years in any event, which right of way should be used only by the owners or occupants of the lots in the subdivision. He also gave them notice that, in event the owners of the lots in the subdivision from 13 to 35 might wish a right of way to Chippewa Beach road, that being the road lying south of the plat, he was willing to give a right of way 14 feet wide for that purpose over the southeasterly part of lots 35 to 51, inclusive, for a period not to exceed three years; such right of way to be kept as close as practicable to the foot of the hill. He also gave notice that he had made a private road on lots 4 and 5 and lots 7 and 8 from the brow of the hill easterly to the public highway and in the spring would make roads up the hill for private purposes. This notice was dated November 14, 1931, and October 5, 1932, the bill of complaint herein was filed.

There is a road back of lots 4, 5, 7, and 8 on the bluff or hill leading from the appellants' lots on the plat to the highway on the line between sections 1 and 2, which township road the private roads serving these lots, after forming a junction between themselves east of the plat, connect with at a point about directly back of lot 5. There is a road to the south opened in 1932 by the appellant MacClure which extends across lots 41 to 50, inclusive, and connects with the street or roadway south of the plat. There is a road called the Pollard road, that goes up the bluff from lot 52 and connects likewise with the street or highway south of the plat.

The decree of the trial court established an easement or right of way of necessity from lot 1 to lot 34 where this so-called easement or private right of way loops around so that parties driving in may turn around and drive out again, and it is this right of way of necessity across the lots of this plat from lot 1 to lot 34 that is involved in this case.

1. The rights of the respective parties are to be determined as of October 5, 1932, the date upon which suit was commenced by the filing of the bill of complaint herein. 1 C.J. 1149; Hovey v. Sebring, 24 Mich. 232, 9 Am.Rep. 122;Blackwood v. Brown, 29 Mich. 483;Moyer v. Scott, 30 Mich. 345; Carpenter v. Harris, 51 Mich. 223, 16 N.W. 383;Schwier v. Atlas Assurance Co., 227 Mich. 104, 198 N.W. 719.

‘The case is to be tried on the facts as they stood when the suit was brought.’ Blackwood v. Brown, 29 Mich. 483.

To hold that one may sue first and obtain his cause of action afterwards is to set aside a rule of long standing in this state, Hovey v. Sebring, 24 Mich. 232, 9 Am.Rep. 122;Moyer v. Scott, 30 Mich. 345, and sustained by the weight of authority, 1 R.C.L. 540; 1 C.J. 1149.

A motion to dismiss a bill of complaint upon the ground it was prematurely filed will lie only where it appears on its face it was filed before the plaintiff became entitled to enforce his rights. Ladas v. Psiharis, 241 Mich. 101, 216 N.W. 458.

2. Easements are either continuous or noncontinuous. Morgan v. Meuth, 60 Mich. 238, 27 N.W. 509;Zemon v. Netzorg, 247 Mich. 563, 226 N.W. 242; Washburn's Easements and Servitudes (4th Ed.) p. 107; Gale Easements (10th Ed.) p. 30; O'Rorke v. Smith, 11 R.I. 259, 23 Am.Rep. 440;Hoffman v. Shoemarker, 69 W.Va. 233, 71 S.E. 198,34 L.R.A.(N.S.) 632;Parsons v. Johnson, 68 N.Y. 62, 23 Am.Rep. 149;Fetters v. Humphreys, 19 N.J.Eq. 471.

‘The distinction between easements which are apparent and continuous and those which are not apparent and continuous is well established by adjudicated cases; the former pass on the severance of the two tenements as appurtenant without the use of the word ‘appurtenances,’ but the latter do not pass unless the grantor uses language in the conveyance sufficient to create the easement de novo.' 19 C.J. 917.

Continuous easements pass on the severance of the two tenements as appurtenant without the use of the word ‘appurtenances.’ But noncontinuous easements do not pass unless the grantor uses language in the...