West Michigan Park Ass'n, Inc. v. Fogg

• Decision Date: 06 May 1987
• Docket Number: Docket No. 84007
• Citation: 158 Mich.App. 160,404 N.W.2d 644
• Parties: WEST MICHIGAN PARK ASSOCIATION, INC., Paul W. Cook and Barbara Cook, and Ottawa Beach Water Association, Inc., Plaintiffs-Appellants, v. Clyde W. FOGG, Verna M. Fogg, Harriet B. Glendening Pearson, (deceased), County of Ottawa and Township of Park, Defendants-Appellees. 158 Mich.App. 160, 404 N.W.2d 644
• Court: Court of Appeal of Michigan — District of US

Page 644

404 N.W.2d 644

WEST MICHIGAN PARK ASSOCIATION, INC., Paul W. Cook and Barbara Cook, and Ottawa Beach Water Association, Inc., Plaintiffs-Appellants, v. Clyde W. FOGG, Verna M. Fogg, Harriet B. Glendening Pearson,

(deceased), County of Ottawa and Township of Park,

Defendants-Appellees.

Docket No. 84007.

158 Mich.App. 160, 404 N.W.2d 644

Court of Appeals of Michigan.

Submitted Feb. 4, 1986.

Decided Jan. 2, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 162] Cholette, Perkins & Buchanan (by Edward D. Wells), Grand Rapids, for plaintiffs-appellants.

Kenneth W. Doss, Holland, for Clyde W. Fogg.

Scholten, Fant & Marquis, P.C. (by Gregory J. Rappleye), Grand Haven, for Park Tp.

Wesley J. Nykamp and Gregory J. Babbitt, Grand Haven, for Ottawa County.

Before DANHOF, C.J., and R.M. MAHER and KINGSLEY, ^* JJ.

PER CURIAM.

This is an appeal from an order of the Ottawa Circuit Court denying the plaintiffs' claim for various forms of equitable relief in connection with an alleged trespass by defendant, Clyde W. Fogg. We affirm the trial court's order.

The alleged trespass occurred on a portion of land adjacent to a red brick pump house located in park area 12 which was formerly a portion of Ottawa Park as platted in the West Michigan Park Plat of 1886. The West Michigan Park plat lies within Park Township on the northern shore of Lake Macatawa in Ottawa County. The plat covers 150 lots and adjacent, publicly dedicated parklands. Ownership and control of the publicly dedicated parklands within the plat has been the [158 MICHAPP 163] subject of numerous, reported appellate decisions. In the present action, the West Michigan Park Association, Inc. (WMPA) alternatively asserts a fee ownership or a possessory interest with right to control the pump house property.

It is undisputed that Clyde W. Fogg began his activities on the pump house property in April of 1965. Fogg improved or rebuilt an existing dock. He moored several boats there, including a seventy-three-foot, seventy-ton tug boat. Fogg also rented slips to several other individuals, lengthened the dock, moored a barge and maintained the road across the land. At times, he also excluded the public, including WMPA members, from the property with threats and barriers.

The plaintiffs filed this action against Fogg on September 2, 1975, requesting various forms of equitable relief, including injunctive orders for the removal of docks and watercraft owned by Fogg, as well as an order restraining Fogg from interfering with use of the property by WMPA members. Amended pleadings added the township, county and others and requested a decree that fee title to the pump house property rests with the WMPA.

After a bench trial on April 16, 1981, the trial court found that fee title to the property lies in the county, subject to a lease of the property to the township. The trial court declined to order the removal of the dock, slips or boats moored at the site, but ruled that both the WMPA and Fogg had equal right of access to the property as members of the general public. Finally, the trial court issued an injunction precluding Fogg from asserting or claiming superior rights to the use of the docks, slips and ramps on the pump house property.

The plaintiffs first argue that the trial court erred in failing to hold that their fee simple ownership of the pump house property is res judicata [158 MICHAPP 164] under West Michigan Park Ass'n. v. Dep't. of Natural Resources, 91 Mich.App. 641, 283 N.W.2d 744 (1979). The doctrine of res judicata is a manifestation of the recognition that endless litigation leads to vexation, confusion and chaos for the litigants as well as inefficient use of judicial resources. Rogers v. Colonial Federal Savings & Loan Ass'n. of Grosse Pointe Woods, 405 Mich. 607, 615, 275 N.W.2d 499 (1979). As this Court has explained:

"The doctrine of res judicata provides that where two parties have fully litigated a particular claim and a final judgment has resulted, that claim may not be relitigated by either party. In Tucker v Rohrback [13 Mich. 73, 75 (1864) ], the Supreme Court delineated three prerequisites for a prior judgment to constitute a bar in a subsequent action: (1) the former action must have been decided on the merits; (2) the same matter contested in the second action must have been decided in the first; and (3) the two actions must be between the same parties or privies." Ward v. DAIIE, 115 Mich.App. 30, 37, 320 N.W.2d 280 (1982).

Michigan follows a broad application of the doctrine of res judicata, barring both those claims actually litigated in the prior action and those claims which could have been, but were not, litigated. ¹ Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 294 N.W.2d 165 (1980); Cramer v. Metropolitan Savings Ass'n. (Amended Opinion), 136 Mich. 387, 394, 357 N.W.2d 51 (1984). An adjudication of title to real property presents no exception to these general principles. See 46 Am Jur 2d, Judgments, Sec. 541, P 698.

West Michigan Park Ass'n. v. Dep't. of Natural Resources, 91 Mich.App. 641, 283 N.W.2d 744 (1979) [158 MICHAPP 165] (DNR ), upon which the plaintiffs base their claim of res judicata, must be seen in light of our previous decision in West Michigan Park Ass'n. v. Dep't. of Conservation, 2 Mich.App. 254, 139 N.W.2d 758 (1966), lv. den. 377 Mich. 709 (1966) (Dep't. of Conservation ). In Dep't. of Conservation we held that title to all of the park land in the plat of West Michigan Park was held in fee by the County of Ottawa as a result of the recording and accepting of the 1886 plat of the development. Thus, we upheld the lease of the park land in the plat by the county to the Department of Conservation. Subsequently, in DNR, we held that the County of Ottawa was also empowered to lease the same lands to the township. In DNR we held:

"However, the lease approved in the case at bar failed to incorporate an exclusion for certain pump house property, fee title to which was obtained by plaintiff West Michigan Park Association, Incorporated, subsequent to the date of our previous decision. To the extent the lease does purport to convey an interest in property not owned by Ottawa County, it is defective and, therefore, should not have been approved." DNR, supra, 91 Mich.App. at p. 643, 283 N.W.2d 744.

Turning to the first Tucker prerequisite, we note that a bench trial was held in Dep't. of Conservation and that judgment was entered. We affirmed that judgment on appeal. DNR was similarly an appeal from a bench trial. However, we reversed the trial court's decision in DNR and remanded for further proceedings. The parties have not presented any documents showing the result of further proceedings and we decline to view the above-quoted language from DNR as a determination of the WMPA's fee ownership of the pump house property on the merits. First, we note that DNR includes no legal description of the disputed property. ²[158 MICHAPP 166] 2] Second, we find no discussion of the parties' claims to the property in DNR. Third, we are unpersuaded that a denial of an application for leave to appeal or a motion for rehearing constitutes a decision on the merits. See, e.g., Malooly v. York Heating & Ventilating Corp., 270 Mich. 240, 247, 258 N.W. 622 (1935); Tebo v. Havlik, 418 Mich. 350, 371 n. 2, 343 N.W.2d 181 (1984); People v. Hayden, 125 Mich.App. 650, 662, 337 N.W.2d 258 (1983). Thus, we conclude that the initial Tucker prerequisite has not been met. The WMPA's fee ownership of the pump house property is not res judicata based upon DNR or Dep't. of Conservation.

We also reject the proposition that WMPA's fee ownership of all of the park land in the plat is res judicata based upon Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344 (1939). That issue was expressly considered in Dep't. of Conservation in which we held:

"It is apparent from the ruling in the Kirchen Case, plaintiffs therein, who are now plaintiffs in this case or their predecessors in title, did not claim exclusive rights in the said 'park' lands of said plat, but only the right to use the same with the general public." Dep't. of Conservation, supra, 2 Mich.App. at p. 264, 139 N.W.2d 758.

Kirchen did hold that the WMPA has certain rights in the platted park land, but did not determine the issue of fee title. We also find no inconsistency between Dep't. of Conservation and West Michigan Park Ass'n. v. Pere Marquette R. Co., 172 Mich. 179, 137 N.W. 799 (1912). In the latter decision, our [158 MICHAPP 167] Supreme Court merely held that the WMPA had failed to substantiate its claim of title to the dedicated areas in the plat. Pere Marquette did not counterclaim for similar relief. No determination of Pere Marquette's interest was made in that decision.

The plaintiffs next argue that the trial court erred in rejecting WMPA's claim to the pump house property by adverse possession. We agree with the trial court that the plaintiffs' pleadings do not state a claim for adverse possession. See Rochow v. Spring Arbor Twp., 152 Mich.App. 773, 394 N.W.2d 102 (1986). Moreover, we agree with the trial court that this issue is res judicata based upon West Michigan Park Ass'n. v. Dep't. of Conservation, 2 Mich.App. 254, 139 N.W.2d 758 (1966), lv. den. 377 Mich. 709 (1966).

Regarding the first Tucker prerequisite, we again note that Dep't. of Conservation was our affirmance of the trial court's determination that the property was held in fee by the county. The trial court's determination was made after a bench trial on the merits.

We also believe that the second Tucker prerequisite has been met in that the same matter contested in Dep't. of Conservation is again at issue in the instant action. The plaintiffs concede that the pump house property lies within park area 12, "which is part of Ottawa platted 'park' in the Michigan Park Plat of 1886." In Dep't. of Conservation we held:

"We conclude that the dedication of the 'park' areas in the 1886 plat...