In these consolidated appeals, plaintiffs sought declaratory and injunctive relief regarding property rights at the ends of roads that terminate at the edge of Higgins Lake. In Docket Nos. 225419 and 225420 (Old Point Comfort subdivision), the trial court granted summary disposition in favor of plaintiffs and granted an injunction. The trial court denied certain individual plaintiffs' request to vacate Montrose Avenue in Old Point Comfort subdivision. We affirm in part and reverse in part. In Docket No. 225722 (Highland Park subdivision), after a bench trial, the court found in favor of defendants. We affirm in part and reverse in part. In the remaining cases, Docket Nos. 228357 (Triangle Park subdivision), 228602 (Lyon Manor and Shoppenagon's Lodge subdivisions), 229581 (Honolulu Beach subdivision), 229606 (Sovereign Park subdivision), 231089 and 231181 (Whittington Park subdivision), 234810 (Evergreen Park subdivision), and 234874 and 234968 (Almeda Beach subdivision), following a bench trial, the court granted plaintiffs' request for declaratory relief and denied injunctive relief. We affirm.
The subject of these cases is the scope of the public's right to use the ends of roads that terminate at the edge of Higgins Lake (road ends) in several subdivisions around the lake. Plaintiff Higgins Lake Property Owners Association (HLPOA) is composed of owners of lakefront property on Higgins Lake. The HLPOA and individual plaintiffs brought these actions seeking declaratory judgments regarding the permissible uses of these road ends as controlled by the subdivision plats that dedicated the streets and alleys "to the use of the public." Owners of back lots in the subdivisions, as well as members of the general public, have used the road ends for lounging, sunbathing, and picnicking, and have also moored boats and placed boat hoists at the road ends. Plaintiffs argued that these activities were beyond the scope of each plat dedication and sought to enjoin further use of the road ends for these purposes.
The controlling authority is Jacobs v. Lyon Twp., 181 Mich.App. 386, 387-388, 448 N.W.2d 861 (1989), vacated 434 Mich. 922, 455 N.W.2d 715 (1990), (After Remand),
II. HLPOA Standing
Docket Nos. 225419 and 225420 (Old Point Comfort), 225722 (Highland Park), 228357 (Triangle Park), 228602 (Lyon Manor and Shoppenagon's Lodge), 229581 (Honolulu Beach), 229606 (Sovereign Park), 231181 (Whittington Park), and 234968 (Almeda Beach)
In these cases, defendants-appellants argue that the HLPOA lacks standing to bring these actions requesting interpretations of these subdivision plats. They argue that the HLPOA has no legal interest in the interpretations of the subdivision plats, and that its interest in the outcome of these cases is no different than that of the general public. We disagree.
See also Lee, supra at 734-736, 629 N.W.2d 900. "A nonprofit corporation has standing to advocate interests of its members where the members themselves have a sufficient stake or have sufficiently adverse and real interests in the matter being litigated." Trout Unlimited, Muskegon White River Chapter v. White Cloud, 195 Mich.App. 343, 348, 489 N.W.2d 188 (1992), citing Karrip v. Cannon Twp., 115 Mich.App. 726, 733, 321 N.W.2d 690 (1982).
This Court has previously addressed the standing of the HLPOA in the consolidated appeals of the cases involving Old Point Comfort, Triangle Park, Highland Park, and Almeda Beach subdivisions. This Court held that the HLPOA "had standing to sue as a nonprofit membership organization litigating to vindicate the interest of its members." Higgins Lake Property Owners Ass'n v Lyon Twp, unpublished opinion per curiam of the Court of Appeals, issued April 8, 1997 (Docket No. 190782). This decision is the law of
Further, we conclude that the same reasoning applies to the other cases at bar in which the standing of the HLPOA is challenged. The HLPOA is a nonprofit corporation whose members are primarily lakefront property owners. The purpose of the HLPOA is to protect the lake, the watershed, and the interests of its members. The HLPOA asserts that the alleged overuse of, and concentration of persons and watercraft, at the road ends is affecting its members' enjoyment of the lake as well as their property values. Accordingly, the HLPOA has standing to sue as a nonprofit membership organization litigating to vindicate the interest of its members. We conclude that the trial court properly denied defendants' motions to dismiss for lack of standing.
III. Scope of Plat Dedications
Docket Nos. 225419 and 225420 (Old Point Comfort), 225722 (Highland Park), 228357 (Triangle Park), 228602 (Lyon Manor and Shoppenagon's Lodge), 229581 (Honolulu Beach), 229606 (Sovereign Park), 231089 and 231181 (Whittington Park), 234968 (Almeda Beach)
The HLPOA and individual plaintiffs argue that the scope of the plat dedications of these subdivisions do not allow use of the road ends for seasonal boat mooring or recreational activities such as lounging, sunbathing, and picnicking. They argue that the subdivision plat dedications of the roads were intended to provide only access to the lake. Defendants argue that the historical and traditional uses of the road ends evidence the dedicators' intent to permit sunbathing, picnicking, lounging, boat mooring, and boast hoists at the road ends.
A. Standard of Review
We review a trial court's findings for clear error. Christiansen v. Gerrish Twp., 239 Mich.App. 380, 387, 608 N.W.2d 83 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. Id.
B. Case Law Preceding Jacobs
The Plat Act, 1887 PA 309,
In McCardel v. Smolen, 404 Mich. 89, 273 N.W.2d 3 (1978), the plaintiffs, front lot owners in a Higgins Lake subdivision, sought to enjoin the defendants, certain back lot owners, from using the beach and the water at a particular location. The land at issue was a strip of land parallel to the shore and designated in the subdivision plat as Michigan Central Park Boulevard. As in the instant cases, the subdivision plat in McCardel dedicated the streets and alleys "to the use of the public." The plaintiffs contended that the dedication granted the public only the right to use the boulevard for street purposes, and the defendants argued that the dedication conferred riparian rights to the public to "use the beach and water for lounging, swimming and boating purposes." Id. at 93, 273 N.W.2d 3. This Court held that "lounging, picnicking and access to and from the water were within the scope of the dedication." Id. at 102, 273 N.W.2d 3.
The Supreme Court concluded that this Court "should not have reached the question whether the boulevard was dedicated not only for pedestrian and vehicular uses but additionally for park or beach uses such as lounging, picnicking and access to and from the water for swimming and boating" because the issue had not been addressed in the circuit court. Id. at 102, 273 N.W.2d 3. The Court remanded the case to the circuit court to address the scope of the dedication. The Supreme Court discussed such shore activities, and also the public rights attendant to roads terminating at the lake:
The Court had long ago recognized in Backus v. Detroit, 49 Mich. 110, 13 N.W. 380
In 1985, the Supreme Court decided Thies v. Howland, 424 Mich. 282, 380 N.W.2d 463 (1985). That case involved a dispute between residents of a subdivision on Gun Lake. The plaintiffs were front lot owners and the defendants were back lot owners. At issue were the defendants' rights in a walkway parallel to the shore for purposes of constructing a dock and mooring their boats from the walkway, as well as the defendants' rights in an alley that ran perpendicular to the lakefront. The Court stated:
The Court recognized that "[c]ases involving a way which terminates at the edge of a navigable body of water are treated differently from those involving a way which runs parallel to the shore." Id. at 295, 380 N.W.2d 463. With respect to the rights attendant to the alley that terminated at the water, the Court stated:
The right to build a wharf or dock does not depend on whether the public owns the fee in the way. Rather, it is based upon the presumption that the plattor intended to give access to the water and permit the building of structures to aid in that access. Any dock which is constructed at the end of a common way must be made available for the use of those to whom the way is dedicated. [Id. at 295-296, 380 N.W.2d 463 (citations omitted).]
On the basis of these authorities, the scope of a dedication of land to public use in a subdivision plat depends on the intent of the dedicator, and public ways that terminate at the water are presumed to have been intended to provide access to the water. This Court reaffirmed this principle in Jacobs, supra, and applied it in the context of the issues raised in the cases at bar.
C. The Jacobs Case
In Jacobs, supra, this Court addressed the scope of a subdivision plat dedication of streets and alleys to the public as it concerned permissible uses of road ends at Higgins Lake. Jacobs, supra, 181 Mich.App. at 388, 448 N.W.2d 861. The plaintiffs owned property in Lyon Manor subdivision that fronted Higgins Lake and was adjacent to road ends. Id. The plaintiffs brought the action to challenge a Lyon Township ordinance that purported to regulate the use of the road ends. The plaintiffs alleged that the ordinance "permitted and encouraged public activities that exceeded the scope of the statutory dedication of the streets, and that the township, through enactment of the ordinance, had intentionally created a nuisance." Id. This Court explained:
[T]he ordinance provides for the erection of no more than one nonexclusive private dock at each road-end which
The plaintiffs presented evidence of public use of the road ends for lounging, sunbathing, picnicking, and mooring of boats, which resulted in noise, debris, and other interferences with the plaintiffs' quiet enjoyment of their properties.
This Court disagreed, and held that a municipality's right to construct dockage "depends upon the scope of the dedication, which in the case of a dedicated street terminating at the edge of navigable waters is presumed to include an intention to give access to the water and permit the building of structures to aid in that access." Id. at 390, 448 N.W.2d 861 (emphasis in original). This Court concluded that the construction of a public dock and the use of the surface waters for swimming, wading, fishing, boating, and to temporarily anchor boats were within the scope of the dedication and therefore were permissible. Id. With respect to shore activities, this Court concluded that "the construction of boat hoists, seasonal boat storage and the use of road-ends for lounging and picnicking exceed the scope and intent of the dedication of property for use as streets." Id. at 391, 448 N.W.2d 861.
The plaintiffs sought leave to appeal to the Supreme Court. In lieu of granting leave, the Court vacated the judgments of this Court and the trial court. Jacobs, supra, 434 Mich. 922, 455 N.W.2d 715. The Supreme Court remanded the case to the trial court for an evidentiary hearing to determine whether each of the disputed activities was within the scope of the dedication.
On appeal after remand, this Court articulated the applicable law:
This Court rejected, as evidence of the dedicator's intent, testimony that the lakefront had been used by the public for lounging and picnicking, and that boats had been anchored along the beach as long ago as the early 1920s, stating: "[W]e do not believe that this testimony established that the disputed activities are properly within the scope of the plat dedication of the streets for public use." Id. at 672, 502 N.W.2d 382. This Court reasoned:
This Court affirmed the trial court's findings that the scope of the dedication permitted the installation of one nonexclusive dock at the end of each road terminating at the lake, and that the public was entitled to reasonable use of the water for boating, swimming, and fishing. Id. at 673, 502 N.W.2d 382. This Court reversed the trial court on the question of shore activities and the erection of boat hoists, holding that such uses were not intended and that the trial court's findings in that regard were not supported by the record
D. Application of Jacobs
Plaintiffs maintain that Jacobs is dispositive and that they are entitled to judgment as a matter of law in light of the identical dedication language in the subdivision plats at issue. Defendants contend that Jacobs only establishes the relevant inquiry, i.e., the intent of the dedicator, and that Jacobs was not intended to be applied generically in every case. Defendants maintain that the historical and traditional uses of the road ends show the dedicators' intent to permit sunbathing, picnicking, lounging, boat hoists, and boat mooring at the road ends.
We agree with defendants that the interpretation of the dedicators' intent presents a factual inquiry. Although most of the dedications at issue occurred during the same ten-year period and contained identical dedication language, the dedicators were different and the intent of the dedicators in Jacobs cannot be imputed to all dedicators of all subdivision plats surrounding Higgins Lake. Therefore, we reject plaintiffs' argument that the interpretation of all Higgins Lake subdivision dedications of streets and alleys "to the use of the public" necessarily compels the same result as in Jacobs.
Although Jacobs, supra, requires a factual determination of the dedicator's intent in each case, we do not ignore the factual similarities between Jacobs and the cases at bar. This Court has previously applied Jacobs in addressing the scope of the dedication of the Evergreen Park subdivision. In an unpublished opinion,
In the instant cases, we likewise discern no record evidence to distinguish the dedications in a meaningful way from Jacobs. The use of the terms "streets" and "alleys" implies passage, and public roads that terminate at the edge of navigable waters are presumed to provide public access to the water. Thies, supra at 295, 380 N.W.2d 463; McCardel, supra at 96, 273 N.W.2d 3; Backus, supra. In light of
We reject defendants' reliance on Dobie v. Morrison, 227 Mich.App. 536, 575 N.W.2d 817 (1998),
Plaintiffs do not dispute the public's right to have access to the lake at the road ends. Members of the public who gain access to a navigable waterbody have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing, and swimming. Thies, supra at 288, 380 N.W.2d 463. Lounging, sunbathing, picnicking, and the erection of boat hoists at the road ends are prohibited as beyond the scope of the dedications. Consistent with Jacobs, supra, one, nonexclusive dock may be erected at each road end to facilitate public access to the water. Members of the public are entitled to moor boats temporarily as an incident of the public's right of navigation. Thies, supra at 288, 380 N.W.2d 463; Jacobs (After Remand), supra, 199 Mich.App. at 671-672, 502 N.W.2d 382. Because the plat language and the applicable law dictate that the road ends are intended to afford access to the public, private docks are not permitted at the road ends.
With respect to Docket Nos. 225419 and 225420 concerning Old Point Comfort subdivision,
IV. Injunctive Relief
Docket Nos. 225419 and 225420 (Old Point Comfort), 228357 (Triangle Park), 228602 (Lyon Manor and Shoppenagon's Lodge), 229581 (Honolulu Beach), 229606 (Sovereign Park), 231089 and 231181 (Whittington Park), 234810 (Evergreen Park), and 234874 and 234968 (Almeda Beach)
In Docket Nos. 225419 and 225420 (Old Point Comfort), the trial court granted an injunction. In the remaining cases, Docket Nos. 228357 (Triangle Park), 228602 (Lyon Manor and Shoppenagon's Lodge), 229581 (Honolulu Beach), 229606 (Sovereign Park), 231089 and 231181 (Whittington Park), 234810 (Evergreen Park), and 234874 and 234968 (Almeda Beach), the trial court denied the request for injunctive relief. After reviewing the lower court records, we conclude that injunctive relief was not warranted in any of these cases.
We review a trial court's grant of injunctive relief for an abuse of discretion. Michigan Coalition of State Employee Unions v. Michigan Civil Service Comm., 465 Mich. 212, 216, 634 N.W.2d 692 (2001). The "`granting of injunctive relief is within the sound discretion of the trial court, although the decision must not be arbitrary and must be based on the facts of the particular case.'" Id. at 217, 634 N.W.2d 692, quoting Holly Twp. v. Dep't of Natural Resources, 440 Mich. 891, 487 N.W.2d 753 (1992). See Cipri v. Bellingham Frozen Foods, Inc., 235 Mich.App. 1, 9, 596 N.W.2d 620 (1999); Schadewald v. Brull, 225 Mich.App. 26, 39, 570 N.W.2d 788 (1997).
Injunctive relief is an extraordinary remedy that courts normally grant only when "`(1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury.'" Head v. Phillips Camper Sales & Rental, Inc., 234 Mich.App. 94, 110, 593 N.W.2d 595 (1999), quoting ETT Ambulance Service Corp. v. Rockford Ambulance, Inc., 204 Mich.App. 392, 400, 516 N.W.2d 498 (1994). In Kernen v. Homestead Dev. Co., 232 Mich.App. 503, 514-515, 591 N.W.2d 369 (1998), this Court articulated the factors to be considered
"[A] real and imminent danger of irreparable injury must exist to support a grant of injunctive relief." Head, supra at 111, 593 N.W.2d 595, citing ETT Ambulance Service, supra at 400, 516 N.W.2d 498. See also Wilkins v. Gagliardi, 219 Mich.App. 260, 276, 556 N.W.2d 171 (1996).
The evidence presented in each of these cases showed that the nature and frequency of activity at the road ends varied considerably. For example, in Docket No. 228357 (Triangle Park), other than the testimony of witnesses that recreational activities and boat mooring are occurring at the road ends, plaintiffs offered no evidence to suggest a danger of irreparable harm that would warrant injunctive relief. Some of the testimony was speculative and addressed concerns of future impact. William Case, director of the HLPOA, testified that "eventually there will be a much more tremendous impact on the lake and on the shoreline of the lake unless there are limitations of some type put on how much usage can develop at the various road ends." The trial court found that "there is no evidence of harm period, let alone irreparable harm." In Docket No. 228602 (Lyon Manor and Shoppenagon's Lodge), one adjacent property owner testified that the use of one of the road ends has caused her to suffer "a great deal of damage, vandalism, [and] theft done to [her] property," but she admitted that she could not attribute the damage to any of the named defendants and she did not know who damaged or vandalized her property. Another witness described the situation as "disconcerting." In Docket Nos. 231089 and 231181 (Whittington Park), the testimony was general regarding "overcrowding" at the road ends, and did not appear to pertain to Whittington Park subdivision specifically. In Docket Nos. 234810 (Evergreen Park),
In general, some witnesses testified about using the road ends without any problems or conflicts. They testified that they did not attempt to preclude use of the road ends by others, nor was their use impeded. Other than a few isolated instances, the evidence showed that persons who use the road ends have done so without difficulty and have not interfered with others' use and enjoyment of the lake. Much of the testimony concerning the road end use merely established that it was occurring, but that it was not disruptive and had prompted no complaints. In other
Common to all these cases, however, despite the variance in degree and type of use, is a lack of showing of irreparable harm to warrant injunctive relief. Although plaintiffs offered evidence that the challenged activities at the road ends are occurring, they did not show a likelihood of irreparable harm if an injunction is not issued.
The problems inherent in "framing and enforcing the order or judgment" were illustrated by the trial court's questions to Robert Frye, president of the HLPOA, in the cases involving Whittington Park and Almeda Beach subdivisions. The court asked Frye exactly what are the activities that plaintiffs seek to have the court enjoin. For instance, the court asked him to define what behavior constitutes sunbathing, asking whether it is considered sunbathing if a person is standing up and getting tan. Frye defined "sunbathing" as lying on the ground or in a chair while tanning. He defined "lounging" as passing the time of day in a singular location in a relaxed way for over half an hour. With regard to picnicking, he was asked whether he would consider a person to be picnicking if the person stands at the road end eating French fries and drinking pop. Frye testified that this activity would not be considered picnicking. Frye emphasized that the HLPOA does not object to a public dock at the end of each road end; the HLPOA seeks to enjoin the mooring of boats. This prompted the court to inquire about Frye's understanding of the term "mooring." According to Frye, mooring is holding a boat in a particular place for a period, perhaps twenty-four hours, or overnight, on a hoist, on a cement block, on an anchor, or tied to a dock.
In the Almeda Beach Subdivision action, defense counsel cross-examined Case about whether the HLPOA was trying to prevent a grandmother and her grandson from sitting on the shore at a road end and having a picnic lunch. Case answered that he did not think so. When he was asked whether a group of school children should be allowed to congregate at the road ends, and how large the group would have to be for the HLPOA to object, Case answered that the HLPOA would object to a group that is disruptive in nature, but he admitted that the HLPOA has not attempted to define "disruptive." Case explained: "If four or five kids come down at the road end and they are playing down there, I don't think that there is going to be any great disruption of anything, I couldn't foresee them causing a problem, but if 50
With respect to "the relative adequacy to the plaintiff of injunction," Kernen, supra, in the Almeda Beach case, plaintiffs' counsel clarified that the request for injunctive relief pertained only to the named defendants, and acknowledged that the court could not enjoin individuals who are not named in the action. Case conceded one defense counsel's point that if the court enjoined the named defendants from certain activities, that would make it easier for others from downstate to drive to the lake with their trailers and engage in the same activities, which might result in greater traffic and congestion at the road ends.
In the cases before us, injunctive relief is therefore not warranted at this time. Considering the relevant factors and examining the evidence presented, we conclude that in none of these cases have plaintiffs established irreparable harm. Many individuals who testified indicated that they would abide by a court decision without any further order. We hold that the trial court abused its discretion in granting injunctive relief in Docket Nos. 225419 and 225420 (Old Point Comfort). The court did not abuse its discretion in denying injunctive relief in the remaining cases.
After our decision, which clarifies the scope of the plat dedications, injunctive relief may be warranted if impermissible use of the road ends continues. We are sympathetic to the difficulty of resolving these disputes case by case. However, we will not engage in a futile attempt to anticipate every situation that may arise in the future.
V. Request to Vacate Montrose Avenue: Docket No. 225420
In Docket No. 225420, plaintiffs-appellants Richard and Jacqueline Branch and
This Court reviews a trial court's findings of fact for clear error. Christiansen, supra at 390, 608 N.W.2d 83. We review de novo issues of statutory interpretation and application. Id. at 388, 608 N.W.2d 83.
Generally, a valid statutory dedication of land for a public purpose requires two elements: (1) a recorded plat designating the areas for public use; and (2) acceptance by the proper public authority. Christiansen, supra at 383-384, 608 N.W.2d 83, citing Kraus v. Dep't of Commerce, 451 Mich. 420, 424, 547 N.W.2d 870 (1996). "The acceptance must be timely, and it must be accomplished by a public act `"either formally confirming or accepting the offer of dedication, and ordering the opening of such street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation"'". Christiansen, supra at 384, 608 N.W.2d 83, quoting Kraus, supra, quoting Tillman v. People, 12 Mich. 401, 405 (1864). A court has jurisdiction to vacate land that has been dedicated for public use but has not been accepted by public authorities. Marx v. Dep't of Commerce, 220 Mich.App. 66, 75, 558 N.W.2d 460 (1996); MCL 560.226(1).
Plaintiffs-appellants first argue that the trial court erred in finding a clear offer to dedicate the land known as Montrose Avenue. We disagree.
The trial court found that the subdivision plat did not specifically mention Montrose Avenue. At the time of the dedication, the land now known as Montrose Avenue was an unnamed strip of land. The court noted the testimony of Roscommon County Road Commissioner George Pappas that it was not unusual for streets in subdivision plats to be unnamed. Also, the court referenced the subdivision plat itself and observed that without using Montrose Avenue, there "is no way to get to some of the front lots except through some of the back lots, but there is no reservation of easements." The court specifically found that the subdivision plat contained an offer to dedicate the land now known as Montrose Avenue by its language dedicating all the streets and alleys in the plat "to the use of the public." We discern no clear error in the trial court's findings.
Plaintiffs next argue that even if the subdivision plat contained a clear offer to dedicate the land at issue, the offer was not accepted by a public authority within a reasonable time, if at all, and therefore the offer has lapsed and the attempted dedication fails. Defendants-appellees maintain that the county formally accepted the offer to dedicate through the passage of resolutions under the McNitt Act, M.C.L. § 247.1 et seq., which incorporated the land into the county road system. Defendants-appellees also argue that the 1978 amendment of the Subdivision Control Act,
We need not consider whether the McNitt resolutions in this case were sufficient to constitute formal acceptance of Montrose Avenue.
Plaintiffs argue that the amendment of the Land Division Act does not apply to plats recorded before 1978. Contrary to plaintiffs' claim, our Supreme Court in Vivian v. Roscommon Co. Bd. of Rd. Comm'rs, 433 Mich. 511, 521, 446 N.W.2d 161 (1989), held that the amendment operates retroactively:
Accordingly, defendants-appellees in this case are entitled to a statutory presumption of public acceptance of all previously platted roads, and plaintiffs have the burden of rebutting the presumption by showing that the offer to dedicate was withdrawn. Kraus, supra at 425, 547 N.W.2d 870. In the trial court, plaintiffs on more than one occasion indicated that they were
VI. Natural Resources Environmental Protection Act, Docket No. 225722
Plaintiffs-appellants in Docket No. 225722, concerning Highland Park subdivision, argue that the trial court erred in failing to grant the alternative relief requested under the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.30102, which prohibits the operation of a marina without a permit. They contend that the large number of boats that are allowed to be moored at the dock at the end of Highland Park Street constitutes a marina, and that the operation of such a marina by certain defendants is in violation of the NREPA.
Plaintiffs did not seek relief under the NREPA. Because this issue was not raised in the pleadings, nor argued below, we need not address it. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234 n. 23, 507 N.W.2d 422 (1993); Lantz v. Southfield City Clerk, 245 Mich.App. 621, 627 n. 4, 628 N.W.2d 583 (2001); Head, supra at 110, 593 N.W.2d 595 ("This Court will not review a case on a theory different from that on which it was tried.").
VII. Adverse Possession of Road Ends in Almeda Beach Subdivision: Docket No. 234968
Defendants-appellants in Docket No. 234968, concerning Almeda Beach subdivision, argue that the public has acquired rights to the road ends by adverse possession. Although defendants-appellants argue a theory of adverse possession, in substance their claim is one asserting that the public has an easement by prescription to use the road ends for recreational purposes. See Plymouth Canton Community Crier, Inc. v. Prose, 242 Mich.App. 676, 679, 619 N.W.2d 725 (2000), citing Schadewald, supra at 35, 570 N.W.2d 788.
This Court reviews de novo a trial court's holdings in equitable actions. Gorte v. Dep't of Transportation, 202 Mich.App. 161, 165, 507 N.W.2d 797 (1993). We review the trial court's findings of fact for clear error. Grand Rapids v. Green, 187 Mich.App. 131, 135-136, 466 N.W.2d 388 (1991).
An easement by prescription results from use of another's property that is open, notorious, adverse, and continuous for a period of fifteen years. Plymouth Canton Community Crier, supra at 679, 619 N.W.2d 725; Goodall v. Whitefish Hunting Club, 208 Mich.App. 642, 645, 528 N.W.2d 221 (1995); MCL 600.5801(4), see also Marr v. Hemenny, 297 Mich. 311, 297 N.W. 504 (1941); Mumrow v. Riddle, 67 Mich.App. 693, 698, 242 N.W.2d 489 (1976); Dyer v. Thurston, 32 Mich.App. 341, 343, 188 N.W.2d 633 (1971). An easement by prescription requires elements similar to adverse possession, except exclusivity. Plymouth Canton Community Crier, supra at 679, 619 N.W.2d 725 ("[E]xclusive use, in the sense of use by only one individual or entity, of another's land is not required to establish a prescriptive easement."); see also West Michigan Dock & Market Corp. v. Lakeland Investments, 210 Mich.App. 505, 511, 534 N.W.2d 212 (1995).
Governmental entities are generally immune from adverse possession actions.
The statute does not operate to extinguish rights that have vested before the effective date of the statute, March 1, 1988. Gorte, supra at 167-168, 507 N.W.2d 797.
In Kempf v. Ellixson, 69 Mich.App. 339, 244 N.W.2d 476 (1976), this Court addressed the circumstances under which a public easement may be acquired by prescription. Kempf was a consolidation of three cases involving property rights in a portion of the shore of Higgins Lake. Id. at 340, 244 N.W.2d 476. The actions were brought by property owners whose lots were bounded by Sam-O-Set Boulevard, which runs along the shore. Id. At issue in Kempf was the use of the lakeshore by back lot owners and the general public, and whether their continuous use of the shore established an easement by prescription.
* * *
In the case at bar, defendants-appellants' claim of right to use the road ends is based solely on the recreational use of the road ends by various individuals over a period of years. The individual defendants in Almeda Beach who argue that they have acquired prescriptive rights to the road ends do not address the Kempf case, nor do they argue that any governmental action occurred "to facilitate and control recreational use." Id. at 343-344, 244 N.W.2d 476. Because mere use of the property is insufficient to established a public easement by prescription, defendants-appellants' claim fails.
Affirmed in part and reversed in part.