PER CURIAM.
Plaintiffs Thomas and Patti Tibble
I. FACTS
Syndicate Park is in South Haven Township, Michigan. The west side of Syndicate Park abuts Lake Michigan. St. Joseph Avenue is a jagged road that runs roughly north/south, lies to the east of the subject parcels, and is an unimproved road with a gravel base. Drexel Boulevard runs east/west, north of Block 21 and south of Block 20. Lakeside Avenue runs parallel to Drexel Boulevard, north of Block 20 and south of Block 19. Both Lakeside Avenue and Drexel Boulevard are described as undeveloped, "heavily wooded," and "pretty rugged." Testimony indicated that it would be "challenging" and "expensive" to open Drexel Boulevard and, although opening Lakeside Avenue would not be as challenging, it did have one area of a "steep loft."
According to defendant Paul Hemmeter, the only way to get a vehicle to Blocks 19, 20, and 21 is to go through the gate at Lots 1-4 of Block 21. After passing through the gate, two drives originate on Lots 1-4 of Block 21. The first drive goes west through the properties of Block 21 (the properties of defendants Walter Goodrich, Darren and Lara Malek, Steve Evans, and Richard Shields) and then intersects Drexel Boulevard, thus, providing access to the properties of Goodrich, Malek, Evans, Shields, and defendant Steven Dombrauskas. The second drive goes northwest through Lots 1-4 of Block 21 and intersects Drexel Boulevard.
On September 4, 1956, Dwight and Alice Porter conveyed Lots 1-4 of Block 21 of Syndicate Park to defendant Sand Haven Voluntary Association.
In 1971, defendants Edward and Alice Palmer purchased a home in Syndicate Park on Lots 13-19 and 62-68 in Block 20. At the time of their purchase, there was a padlocked gate on Lots 1-4 in Block 21. A "roadway" went through the gate. According to Edward Palmer, he was uncertain whether Syndicate Park had a homeowners' association when he purchased his property. However, he began to pay membership dues to the Sand Haven Voluntary Association in either 2002 or 2003.
In 1987, defendant Steve Evans purchased several groups of lots for a seasonal home in Syndicate Park, including Lots 20-29 in Block 21. According to Evans, he was a member of the Sand Haven Voluntary Association, and he paid membership dues. Indeed, at one time, Evans was the Sand Haven Voluntary Association's treasurer. As the treasurer, Evans received tax bills for Lots 1-4 in Block 21 because he "never could get the county to make
In February 1988, defendant Paul Hemmeter purchased a home in Syndicate Park on Lots 26-55 in Block 20. At the time of his purchase, there was a small metal gate with a lock and pin on Lots 1-4 of Block 21. According to Hemmeter, each member of the Sand Haven Voluntary Association had a key to the gate. In 1990, Hemmeter purchased Lots 69-72 in Block 20 and also lots in Block 19.
According to Hemmeter, there was a "common understanding" that all members of the Sand Haven Voluntary Association could use the drives. Moreover, Hemmeter stated that he became a member of the Sand Haven Voluntary Association because he purchased his property from a member of association. Indeed, according to defendants, membership in the Sand Haven Voluntary Association transferred automatically when a member of the Sand Haven Voluntary Association transferred title to property in Syndicate Park.
In 1995, the Tibbles purchased Lots 8-12, 21-25, and 56-61 in Block 20 of Syndicate Park. At the time of purchase, the seller of the property provided the Tibbles with a key to the gate on Lots 1-4 of Block 21. According to Thomas, the lock on the gate would periodically change. Either Evans or the property caretaker would provide the Tibbles with a new key. According to Thomas, the Sand Haven Voluntary Association did not ask him to become a member. The Tibbles did not receive correspondence from the Sand Haven Voluntary Association or pay dues. The Tibbles later sold Lots 21-25 and 56-61 to Robert Redmond but retained Lots 8-12. In either 2002 or 2003, the Tibbles were no longer provided a key to the gate.
In May 2006, Evans applied for a permit to install a new gate on Lots 1-4 of Block 21. During the summer of 2006, an electronically operated cantilever gate was installed. The gate could be opened in two ways: either by entering a code on a keypad or by remote control. All members of the Sand Haven Voluntary Association received remote controls and a permanent code. Utility companies received a semi-permanent code. And guests of members of the Sand Haven Voluntary Association received a temporary code, which changed every few months. The Tibbles, however, did not receive access through the gate. According to Thomas Tibble, the Tibbles therefore no longer had access to their property in Syndicate Park.
On August 29, 2006, Dombrauskas filed articles of incorporation for the Sand Haven Shores Homeowners Association. The articles listed Dombrauskas as the Sand Haven Shores Homeowners Association's agent. The articles stated that the purpose of the Sand Haven Shores Homeowners Association was to provide for routine maintenance and upkeep of property.
According to Hemmeter, the Sand Haven Shores Homeowners Association consisted of the following families: Hemmeter, Goodrich, Evans, Shields, Dombrauskas, Atkinson, and Palmer. Hemmeter testified that there were no written procedures governing how a person became a member of the Sand Haven Voluntary Association or how a person becomes a member of the Sand Haven Shores Homeowners Association. Nonetheless, Hemmeter testified that nonmembers who purchased property from members could become members of the Sand Haven Shores Homeowners Association by paying a $1,500 transfer fee. And, according to defendants, nonmembers who purchased property from nonmembers could become members of the Sand Haven Shores Homeowners Association by paying an initiation fee. The amount of the initiation fee was to be determined by the Sand Haven
In 2006 and 2007, the Maleks purchased Lots 9-19 in Block 21 of Syndicate Park. The Maleks paid the $1,500 transfer fee to become members of the Sand Haven Shores Homeowners Association and to access their property. The Maleks paid additional membership dues in 2007 and 2008 of $600 and $700 respectively.
According to Thomas Tibble, the Sand Haven Shores Homeowners Association did not ask him to become a member. The Tibbles did not receive correspondence from the Sand Haven Shores Homeowners Association or pay dues to the homeowners' association. Hemmeter confirmed that the Tibbles were not offered membership to the Sand Haven Shores Homeowners Association.
The Tibbles applied to the Department of Environmental Quality to open access to Lakeside Avenue and Drexel Boulevard from St. Joseph Avenue. But the Department denied the Tibbles' request.
On September 13, 2007, the Tibbles sued defendants to obtain access to their property in Syndicate Park through the electronic gate. The Tibbles hope eventually to build a home on their property in Syndicate. The Tibbles claimed an easement in the private drive entering Syndicate Park through the gate on Lots 1-4 under the theories of prescription, implication, and necessity.
After the plaintiffs proofs were presented at the July 2008 bench trial, the trial court determined that the Sand Haven Voluntary Association was a necessary party that had not been included as a defendant in the case. Accordingly, the trial court directed the Tibbles to add Sand Haven Voluntary Association as a defendant. The trial court also granted defendants' motion to dismiss the counts of the Tibbles' complaint claiming an easement by implication and necessity.
The Tibbles filed an Amended and Restated Complaint, adding Sand Haven Voluntary Association and the unknown heirs of the Porters as defendants. The Tibbles' complaint retained their claim of an easement by prescription. However, the Tibbles' added two counts, claiming that the Porter's conveyance of Lots 1-4 to the Sand Haven Voluntary Association created either a public or a private dedication and, thus, an easement over Lots 1-4.
After a second bench trial proceeding, the trial court issued an opinion and order. With respect to Lots 1-4, the trial court opined that it had "no basis to find title by conveyance in the [Sand Haven Shores Homeowners Association] or its individual members." The trial court also opined that the Porters did not make a public dedication of Lots 1-4. However, the trial court found that defendants could "claim a private dedication for their benefit ... from the Porters" because they used and maintained Lots 1-4 and erected the gates. The trial court noted that the individual defendants and their predecessors traveled Lots 1-4 for more than 15 years, but the Tibbles did not. The trial court also viewed the Porters' deed to the Sand Haven Voluntary Association as acquiescence to the defendants' use. The trial court summarized its conclusion as follows:
The trial court entered a judgment of no cause of action and specifically found that defendants had the right to erect and maintain the gate at Syndicate Park. The
II. PRIVATE DEDICATION
A. STANDARD OF REVIEW
The Tibbles argue that the trial court erred by determining that the individual defendants and the Sand Haven Shores Homeowners Association acquired a right by private dedication to access their lots in Syndicate Park, while holding that the Tibbles were not included in that private dedication. This Court reviews a trial court's findings of fact following a bench trial for clear error and reviews de novo the trial court's conclusions of law.
B. LEGAL PRINCIPLES
Michigan law recognizes both public and private dedications.
With respect to private dedications, the Michigan Supreme Court, in the cases of Little v. Hirschman
In a 1921 case, the Michigan Supreme Court determined that a common — law public dedication arose out of a deed — which the Court determined to be void — that attempted to convey property to a nonlegal entity.
C. APPLYING THE LEGAL PRINCIPLES
In the present case, the trial court found that the Porters' failed conveyance to the Sand Haven Voluntary Association created an easement in Lots 1-4 by virtue of a private dedication. The trial court's finding is analogous to the Michigan Supreme Court's decision in Badeaux. Both Badeaux and the present case involved failed conveyances of land to nonlegal entities.
As previously noted, there is no legal authority in Michigan addressing private dedications that are not in a plat, that is, common-law private dedications. Nonetheless, applying the requirements for a public common-law dedication articulated by the Michigan Supreme Court (intent to dedicate, acceptance and maintenance, and use) to this case, suggests that a private common-law dedication was established in the present case.
The Porters' deed to the Sand Haven Voluntary Association demonstrates that the Porters intended to dedicate Lots 1-4 for private use. Moreover, the evidence at trial established that private individuals in Syndicate Park accepted, maintained, and used Lots 1-4. The inscription of "1950" on the cement footing of the gate on Lots 1-4 indicates that the gate and the private drives on Lots 1-4 were used by private individuals in Syndicate Park before the Porters' failed conveyance in 1956. Palmer, the earliest resident of Syndicate Park to testify in this case, testified that the gate and private drives on Lots 1-4 were present when he purchased his property in 1971. Hemmeter testified that he maintained the drives after purchasing property in Syndicate Park in 1988. And, there was testimony that the old and new gates on Lots 1-4 were maintained by private individuals in Syndicate Park. Accordingly, we conclude that the trial court did not err when it found that the Porters' failed conveyance to the Sand Haven Voluntary Association created an irrevocable easement in Lots 1-4 of Block 21 by virtue of a private dedication.
The issue of who retained the easement by private dedication in Lots 1-4 is a more complicated matter. A grantor's intent controls the scope of a dedication.
The facts and circumstances here illustrate that the Porters intended to dedicate the use of Lots 1-4 to all the lot owners of Syndicate Park whose only means of accessing their property by land is through Lots 1-4. Indeed, given the facts of this case, such a conclusion is the most equitable solution. The Porters' failed conveyance to the Sand Haven Voluntary Association indicates intent to benefit the lot owners in Syndicate Park. The private drives originating on Lots 1-4 appear to have been (and still are) the only means to access Blocks 19-22, which indicates an intention to dedicate the use of Lots 1-4 to the lot owners in Syndicate Park who could only access their properties by a right of way over Lots 1-4.
Moreover, the members of the Sand Haven Voluntary Association at the time of the Porters' failed conveyance are unknown. The trial court did not receive any records with respect to the Sand Haven Voluntary Association's members. And the trial court did not receive any records of minutes kept by the Sand Haven Voluntary Association during meetings. It is certainly possible that individuals other than members of the Sand Haven Voluntary Association used and maintained Lots 1-4 after the Porters' conveyance to the Sand Haven Voluntary Association. Indeed, the notion that the use of Lots 1-4 has been limited to members of the Sand Haven Voluntary Association since the Porters' conveyance is highly suspect. Palmer testified that he was uncertain whether a homeowners' association existed at the time he purchased his property in Syndicate Park in 1971. Indeed, although Palmer purchased property in Syndicate Park in 1971 — and apparently traveled Lots 1-4 — Palmer did not start paying dues to the Sand Haven Voluntary Association until either 2002 or 2003. Evans testified that he purchased his property in Syndicate Park in 1987 and was a member of the Sand Haven Voluntary Association. But he did not pay dues to the Sand Haven Voluntary Association until "much later on."
More importantly, the Tibbles' predecessor in interest had key access through the gate. And the Tibbles were provided access through the gate on Lots 1-4 from 1995 until either 2002 or 2003. This evidence indicates that all landowners in Syndicate Park — regardless of their membership status with the Sand Haven Voluntary Association — used Lots 1-4 until the Sand Haven Voluntary Association required its members to pay dues in either 2002 or 2003. Thus, the Porters do not appear to have intended the exclusion of any landowners in Syndicate Park Blocks 19-22 from using Lots 1-4 to access their properties.
Accordingly, we conclude that the Porters intended to dedicate Lots 1-4 for the use of the lot owners in Syndicate Park whose only means of accessing their property by land was through Lots 1-4. Thus, we further conclude that the Tibbles, like the defendants, had an easement in Lots 1-4 by virtue of the Porters' private dedication. Accordingly, the defendants cannot prevent the Tibbles from using their easement.
SAWYER, P.J., and WHITBECK and OWENS, JJ., concurred.
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