Waterfall Hill Condominium Assn v. Great Lakes Custom Builder LLC ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WATERFALL HILL CONDOMINIUM UNPUBLISHED
ASSOCIATION, December 5, 2019
Plaintiff-Counterdefendant-
Appellee,
v No. 343673
Oakland Circuit Court
GREAT LAKES CUSTOM BUILDER, LLC, LC No. 2017-157021-CH
Defendant-Counterplaintiff-
Appellant.
Before: JANSEN, P.J., and BOONSTRA and LETICA, JJ.
PER CURIAM.
In this property dispute, defendant appeals as of right following a bench trial. After
determining that defendant exceeded the terms of an easement and trespassed on plaintiff’s
property, the trial court ordered defendant to remove the driveway overage and electronic gate on
plaintiff’s property. Pretrial, the trial court granted plaintiff partial summary disposition based
on its determination that the amendment of the easement superseded the original easement.
Defendant challenges the trial court’s rulings. We affirm.
I. BACKGROUND
A. FACTUAL HISTORY
Defendant owns a parcel of property in the city of Birmingham, Michigan at 118
Waterfall Lane (Lot 4). Contiguous to Lot 4 to the south is the Waterfall Hill Condominium
(WHC), a six-unit condominium project located on Waterfall Court, a circular drive. Plaintiff is
responsible for the administration of the WHC. To the south of the WHC is Maple Road, which
connects with Waterfall Court. To the west of the WHC is Waterfall Lane, a gravel road which
also connects to Maple Road, on which Lot 4 is addressed. At issue here are defendant’s rights
under a recorded easement provided to Lot 4 by plaintiff and the original developer of WHC and
how to interpret those rights based on a 2005 recorded amendment to the easement.
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Waterfall Hill, LLC (Waterfall Hill) was the owner and developer of the WHC, and
Ronald Hughes was the managing member of Waterfall Hill and the plaintiff’s initial president.
On August 16, 2000, Waterfall Hill acquired an interest in Lot 4 with a purchase agreement and
addendum from then-owner Daisy Scott. Waterfall Hill and plaintiff conveyed an easement to
Scott (the Original Easement), which was recorded on April 27, 2004. The Original Easement
granted Lot 4 certain rights to and over areas of the WHC property. On July 23, 2004, Waterfall
Hill executed a quit claim deed, transferring its interest in Lot 4 to Hughes and his wife. Scott
simultaneously provided the Hugheses with a warranty deed to Lot 4. The couple demolished
the existing home and made plans to build their own home on it. Waterfall Hill also constructed
a continuous brick privacy wall between Lot 4 and the WHC. Ronald Hughes did not procure a
survey before the brick wall was installed as he owned both parcels. Until this litigation, he was
unaware that the wall was on the WHC’s property. Waterfall Hill also installed a 12-foot-wide
brick paver stubbed driveway and erected the brick wall before any of the WHC units were sold.
Directly north of the brick paver stubbed driveway were two breakaway columns in the brick
wall that were intended to come down to create the exclusive driveway for Lot 4.
In January 2005, Dr. Stuart Stoller and his wife were the first to purchase a unit in the
WHC. Around April 20, 2005, Waterfall Hill, LLC and plaintiff, Waterfall Hill Condominium
Association, executed an amendment to the easement (2005 Amendment). Hughes signed the
2005 Amendment in his representative capacities as a member of Waterfall Hill, LLC and as the
president of plaintiff association. Both Hugheses also signed the 2005 Amendment in their
individual capacities as the “Grantee,” being the current owners of Lot 4 and Scott’s successors.
The 2005 Amendment contained some provisions identical to those in the Original Easement,
some altered, and some brand new to the amendment.
For a time, the Hugheses lived in the WHC’s Unit 4. They sold their unit in 2010, when
there were issues between Hughes and the other condo owners. At that point, Stoller was
plaintiff’s president. In April 2013, defendant, through its sole member, James Wiese, purchased
Lot 4 from the Hugheses. An exhibit attached to the warranty deed executed reflected that Lot 4
was subject to the easement described in the 2005 Amendment, “which supersedes in its
entirety” the Original Easement. There was also a “Private Road Acknowledgment” that
likewise described the 2005 Amendment as superseding in its entirety the Original Easement.
When defendant purchased Lot 4, a patch of dirt still sat between the end of the brick
paver driveway and the brick wall. Although the driveway could not be used, Lot 4 had access
to Maple Drive from Waterfall Lane. Wiese had intended to close off Lot 4 from Waterfall Lane
and for the driveway off Waterfall Court to be the only entrance to Lot 4. Wiese had also
initially planned to install a mailbox on the Waterfall Court driveway despite his knowledge of
the prohibition against tradespeople and trailers, including landscapers and repair persons, on the
easement and that “by having that be the only entrance, it would by necessity mean that all of
those people would have to transverse Waterfall Court.”1
1
A gate was subsequently placed on the western side of Lot 4 to provide ingress and egress to
Waterfall Lane, where the mailbox was also installed.
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In June 2016, defendant removed the “breakaway” portion of the brick wall to put in a
driveway for the new home on Lot 4 and connect it to the brick paver driveway in the easement
on the WHC’s property because the city would not issue a certificate of occupancy until he did.
Defendant’s unilateral removal of the brick wall in front of the brick paver driveway instigated
the instant dispute with plaintiff. The board reviewed the 2005 Easement and concluded that
defendant was required to provide notice to it and obtain a certificate of occupancy first. The
board also discovered defendant’s plans to construct a mailbox, to install a gate with a keypad
and other necessary equipment, and to put in brick pavers to widen the driveway from the
original 12-foot width to the 16-foot-wide opening in the brick wall. Plaintiff disputed the
construction of all of these items and ordered defendant to cease construction until it received
approval. Defendant stopped construction, but maintained that it received approval to continue
roughly a week later. Defendant then completed the driveway and gate installation. On
August 2, 2016, defendant received the certificate of occupancy for the home on Lot 4.
B. PROCEDURAL HISTORY
On January 26, 2017, plaintiff filed a complaint against defendant, alleging breach of the
2005 Amendment and multiple instances of trespass. It requested a declaratory judgment
ordering defendant to pay 1/7th of the costs and expenses related to upkeep of Waterfall Court,
services that render Waterfall Court passable, and all expenses related to use and upkeep of the
water pump. Plaintiff also requested a declaratory judgment that the installation of the gate and
keypad and possible installation of a mailbox anywhere on the WHC property exceeded the
scope of the easement. Defendant answered and filed multiple counterclaims.
On September 1, 2017, defendant filed a motion for summary disposition. Plaintiff
opposed the motion and asked the court to grant summary disposition in its favor. The trial court
denied summary disposition on all issues except for plaintiff’s stipulation that it was not
affiliated with Lot 4 and plaintiff’s argument that the 2005 Amendment governed the other
questions.
A three-day bench trial followed. Multiple witnesses, including Hughes, Wiese, and
Stoller, testified. On March 7, 2018, the trial court issued its opinion. The trial court determined
that defendant breached the 2005 Amendment and trespassed by tearing down the breakaway
portion of the brick wall without notice and a certificate of occupancy, even though it also found
that the width of the breakaway section did not violate the 2005 Amendment. The trial court
further determined that defendant breached the 2005 Amendment when it constructed the
overage and flare and installed the pedestal/keypad, sign, gate, and gate equipment. The trial
court concluded that defendant did not owe monthly dues to plaintiff, but the court did include a
provision similar to an indemnification provision from the 2005 Amendment. It awarded
nominal damages to plaintiff for defendant’s trespasses and it ordered defendant to remove “at its
entire and full expense” the overage, flare, sign, pedestal, gate, and gate equipment from
plaintiff’s property and to restore plaintiff’s property to the condition it was in before defendant’s
trespasses.
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The trial court subsequently denied defendant’s requests for a stay and relief from
judgment. This appeal followed. Defendant requested a stay pending the outcome of this
appeal, which this Court granted.2
II. STANDARDS OF REVIEW
“The extent of a party’s rights under an easement is a question of fact, and a trial court’s
determination of those facts is reviewed for clear error.” Blackhawk Dev Corp v Village of
Dexter, 473 Mich. 33, 40; 700 NW2d 364 (2005). Likewise, whether a use or action exceeded
the scope of an easement is also generally a question of fact that we review for clear error.
Wiggins v City of Burton, 291 Mich. App. 532, 550; 805 NW2d 517 (2011). “However, when
reasonable minds could not disagree concerning these issues, they should be decided by the court
on summary disposition as a matter of law.” Id. We review de novo a trial court’s decision on a
motion for summary disposition. Blackhawk, 473 Mich. at 40. We also review a trial court’s
dispositional ruling on equitable matters de novo. Id.
Following a bench trial, we review the trial court’s factual findings for clear error and
review its conclusions of law de novo. Glen Lake-Crystal River Watershed Riparians v Glen
Lake Ass’n, 264 Mich. App. 523, 531; 695 NW2d 508 (2004). Factual findings are clearly
erroneous if we are left with the firm and definite conviction that a mistake had been made.
Reed v Reed, 265 Mich. App. 131, 150; 693 NW2d 825 (2005). In addition, we review for an
abuse of discretion the trial court’s grant of injunctive relief. Martin v Murray, 309 Mich. App.
37, 45; 867 NW2d 444 (2015). An abuse of discretion occurs when the trial court’s decision
falls outside the range of reasonable and principled outcomes. Detroit Fire Fighters Ass’n IAFF
Local 344 v City of Detroit, 482 Mich. 18, 28; 753 NW2d 579 (2008).
III. ANALYSIS
We first address the merits of the trial court’s summary disposition order and then its
opinion after trial.
A. SUMMARY DISPOSITION
Defendant argues that the trial court erred when it determined on summary disposition
that this dispute was governed by the 2005 Amendment because it superseded the Original
Easement. In reaching this conclusion, the trial court relied upon the 2013 warranty deed
documents that twice expressly provided the 2005 Easement superseded the Original Easement.
Defendant asserts the warranty deed documents cannot control because the grantors to the
easements differ from the parties to the 2013 warranty deed, and, as a matter of law, “[w]here the
rights to an easement are conveyed by grant, neither party can alter the easement without the
other party’s consent.” Blackhawk, 473 Mich. 46-47 (citations omitted). Although plaintiff
disputes this, it offers an alternative ground for affirmance—review of the 2005 Amendment
2
Waterfall Hill Condo Ass’n v Great Lakes Custom Builder, LLC, unpublished order of the
Court of Appeals, entered June 20, 2018 (Docket No. 343673).
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demonstrates that it supersedes the Original Easement. Because we agree that the trial court
reached the correct result,3 we affirm. Adell Broadcasting v Apex Media Sales, 269 Mich. App. 6,
12; 708 NW2d 778 (2005).
The trial court granted plaintiff partial summary disposition under MCR 2.116(C)(10).
“In evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties in the light most favorable to the party opposing the motion.” Maiden v Rozwood, 461
Mich. 109, 120; 597 NW2d 817 (1999) (citations omitted). “Where the proffered evidence fails
to establish a genuine issue regarding any material fact, the moving party is entitled to judgment
as a matter of law.” Id. Importantly, “this Court’s review is limited to review of the evidence
properly presented to the trial court.” Barnard Mfg Co v Gates Performance Engineering, Inc,
285 Mich. App. 362, 380; 775 NW2d 618 (2009).
Resolution of this issue also requires us to interpret the 2005 Amendment to the
easement.
The language of an express easement is interpreted according to rules similar to
those used for the interpretation of contracts. Accordingly, in ascertaining the
scope and extent of an easement, it is necessary to determine the true intent of the
parties at the time the easement was created. Courts should begin by examining
the plain language of the easement, itself. If the language of the easement is clear,
it is to be enforced as written and no further inquiry is permitted. [Wiggins, 291
Mich. App. at 551 (quotation marks and citations omitted).]
Courts may not write a different contract under the guise of interpretation or consider extrinsic
evidence to determine the parties’ intent when definite and unambiguous contract language
exists. UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich. App. 486, 491; 579
NW2d 411 (1998).
Defendant has conceded that the 2005 Amendment complied with paragraph 8 of the
Original Easement, which set forth how the parties could modify the easement. Thus, the parties
agree that the 2005 Amendment amended the Original Easement, but disagree on its effect.
Defendant argues that the provisions in the 2005 Amendment should be read in conjunction with
the provisions of the Original Easement. Plaintiff argues that the 2005 Amendment completely
superseded, or overwrote, the provisions of the Original Easement.
3
In denying defendant’s motion for relief from judgment after the bench trial, the court adopted
the rationale set forth in plaintiff’s response. Therein, plaintiff reiterated its position that the
2005 Amendment superseded the Original Easement and suggested that the trial court relied
upon the undisputed evidence that Ronald Hughes and Wiese executed the documents
recognizing that the 2005 Amendment superseded the Original Easement, rather than the
warranty deed.
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The parties disagree on how to determine the parties’ intentions when they have executed
two documents, the second of which covers some or all of the same elements as the first. Where
parties “expressly modify their previous contract, rescission of the terms of the prior agreement
is a necessary implication.” Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich. 362,
373; 666 NW2d 251 (2003). Thus, “contradictory provisions in the prior agreement are waived.”
Id. On the other hand, if a writing references a separate instrument for additional contract terms,
the two writings are read together. Forge v Smith, 458 Mich. 198, 207; 580 NW2d 876 (1998).
Comparing the terms addressed and language used in the Original Easement and the 2005
Amendment, the 2005 Amendment superseded the Original Easement in its entirety. The 2005
Amendment is titled “Amendment of Easement” and makes several references to the Original
Easement in the introductory and background paragraphs. Although it does not expressly
incorporate the Original Easement, paragraph F explicitly states, “The Grantor desires to amend
the Grant of Easement and Grantee desires to accept the Amendment as set forth herein.”
Defendant is accurate insofar as it argues that the 2005 Amendment was clearly intended
to amend, not terminate, the Original Easement, but defendant misunderstands the relationship
between “termination” and “supersession.” “Supersede” means “[t]o annul, make void, or repeal
by taking the place of.” Black’s Law Dictionary (11th ed) (emphasis added). “Terminate,”
however, means “[t]o put an end to; to bring to an end.” Id. Thus, termination is merely part of,
and not coequal with, supersession. In order to supersede something, first the original must be
voided or annulled, which is to say terminated, but additional action is required; something must
be put in place of the original. In this way, supersession is an amendatory act. “Amend” means
“[t]o change the wording of; specif., to formally alter (a statute, constitution, motion, etc.) by
striking out, inserting, or substituting words.” Id. In this case, the drafters amended the Original
Easement by adding and deleting provisions and modifying the wording to the point that all of
the provisions were either explicitly restated within the 2005 Amendment or superseded by its
newly modified terms.
Both the Original Easement and the 2005 Amendment begin with a prefatory paragraph
describing and defining the parties to the document. This introductory material is essentially
identical with the exception of the respective parties’ names. The same is true of the background
paragraphs with the 2005 Amendment adding paragraph F, which reads: “The Grantor desires to
amend the Grant of Easement and Grantee desires to accept the Amendment as set forth herein.”
Both the Original Easement and the 2005 Amendment next contain a section captioned “GRANT
OF EASEMENT.” Paragraph 1 of both documents grants a perpetual easement for five
purposes, but the 2005 Amendment recognizes additional limitations related to a now-in-
existence driveway. Paragraph 2 of 2005 Amendment alters the Original Easement’s provision
regarding the lack of limitation on pedestrian or vehicle access. Paragraph 2 of the 2005
Amendment explicitly limits the easement “to standard vehicular and pedestrian traffic.”
Importantly, previously allowed travel by contractors and tradesmen providing services or
materials to Lot 4 is no longer permitted under paragraph 2 of the 2005 Amendment. Paragraph
3 in the Original Easement, which permits the recording of an amendment “[o]nce the driveway
is installed,” is omitted from the 2005 Amendment. Paragraph 3 of the 2005 Amendment
incorporates paragraph 4 of the Original Easement, omitting the word “reasonably” and adding a
clause. Paragraph 4 of the 2005 Amendment incorporates Paragraph 5 of the Original Easement,
adding language to impose the associated expenses on the grantee. Paragraph 6 of the 2005
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Amendment and paragraph 7 of the Original Easement discuss the allocation of costs to the
grantee with respect to maintenance of the driveway and discuss different upkeep costs. In the
Original Easement, paragraph 7 places the obligation to maintain the driveway “when
constructed” on the grantee, who “otherwise bear[s] no expenses and pay[s] no charges or fees
for the use of the easements. But, if a pump for the irrigation system drawing water from
Quarton Lake needs to be replaced, Grantee shall pay 1/7th of the replacements costs and
installation costs of a new pump.” Paragraph 6 of the 2005 Amendment places the responsibility
of maintaining, replacing, and repairing on the grantee. In addition, “the Grantee agrees to
defend, reimburse, indemnify, and hold the Association harmless for any and all cost, expense,
and damage incurred by the Association as a result of the usage of th[e] Easement by Grantee
and Grantee’s visitors, invitees, or guests or anyone else.” Paragraphs 8 and 10 are identical.
Paragraph 9 of the 2005 Amendment alters the language of paragraph 9 in the Original Easement
regarding the termination process. Lastly, the 2005 Amendment includes the entirely new
paragraph 7, entitled “Removal of the Wall.”
Review of the 2005 Amendment demonstrates that every aspect of the Original Easement
was expressly repeated, modified, or omitted. Wiggins, 291 Mich. App. at 551. Nothing in the
language of the 2005 Amendment suggests that it is intended to be read in conjunction with the
Original Easement. Instead, the 2005 Amendment is complete unto itself and intended to
overwrite, or supersede, the Original Easement, as demonstrated by paragraph F. Defendant is
correct only insofar as the trial court’s determination that the 2005 Amendment superseded the
Original Easement meant that the Original Easement was terminated as the authoritative
document. However, because the 2005 Amendment replaced the Original Easement, the
easement itself was not terminated. Rather, its terms were modified, i.e., amended, by the
addition, deletion, and alteration of language to the new provisions found in the 2005
Amendment. Therefore, it is irrelevant that the 2005 Amendment did not follow the Original
Easement’s paragraph 9 termination requirements. Instead, the supersession of the Original
Easement by the 2005 Amendment was an amendatory act done in compliance with paragraph 8
of the Original Easement.
Accordingly, regardless of whether the trial court improperly relied on the language of
the 2013 warranty deed, the 2005 Amendment restated and altered the Original Easement to such
an extent that the 2005 Amendment superseded the Original Easement. Adell Broadcasting, 269
Mich. App. at 12; Hess v Cannon Twp, 265 Mich. App. 582, 596; 696 NW2d 742 (2005) (“A trial
court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong
reason.” (quotation marks omitted).4
4
There being no error, we decline to address defendant’s assertions about the ramifications of
this determination. Additionally, defendant contends that, because the trial court erred in its
determination that the 2005 Amendment superseded the Original Easement, it erred by holding
that defendant had any financial obligations to plaintiff outside of the maintenance and upkeep of
the driveway and 1/7th of the cost of upkeep and maintenance of the water pump. Because we
have determined that the trial court properly determined that the 2005 Amendment superseded
the Original Easement, we reject defendant’s argument premised on a paragraph from the
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B. TRESPASSES
Defendant also argues that the trial court erred in: (1) its determination that the flare and
overage constituted a trespass, including its decision that the gate and related equipment were not
necessary for enjoyment of the easement and (2) its order to remove the overage and flare and
move the gate and related equipment. We conclude that the trial court did not err.
1. REPAIRS OR IMPROVEMENTS INCIDENTAL TO THE EASEMENT
Defendant argues that the trial court erred by concluding that its installation of the
overage, flare, keypad, and gate with related equipment constituted a trespass rather than repairs
or improvements to the easement that did not unreasonably interfere with plaintiff’s use of the
property.
“The use of an easement must be confined strictly to the purposes for which it was
granted or reserved.” Delaney v Pond, 350 Mich. 685, 687; 86 NW2d 816 (1957). An easement
holder “cannot ‘make improvements to the servient estate if such improvements are unnecessary
for the effective use of the easement or they unreasonably burden the servient tenement.’ ”
Blackhawk, 473 Mich. at 41, quoting Little v Kin, 468 Mich. 699, 701; 664 NW2d 749 (2003),
citing Crew’s Die Casting Corp v Davidow, 369 Mich. 541; 120 NW2d 238 (1963); Unverzagt v
Miller, 306 Mich. 260, 265; 10 NW2d 849 (1943); Mumrow v Riddle, 67 Mich. App. 693, 700;
242 NW2d 489 (1976). If the first question is answered negatively, “the need to answer the
second question is obviated[.]” Id. at 42.
Here, the trial court specifically found that the easement was designed to accommodate
standard vehicular pedestrian traffic and that “[v]ehicular traffic can easily (actually more easily)
ingress and egress on the Driveway without the installation of the Pedestal, the Gate, and the
Gate Equipment.” Because defendant’s improvement was unnecessary, the trial court did not
address whether it was unreasonably burdensome. The court’s findings are not clearly
erroneous.
Defendant’s initial argument is premised on its assertion that “the flare and overage
[we]re not a trespass because they [we]re within the scope of the Original Easement, as
confirmed by Hughes’ testimony.” Again, based on the plain language of the 2005 Amendment,
the trial court properly decided that the improvable portion of the easement was limited to the
width of the driveway as it existed at that point in time. Therefore, defendant’s premise that the
flare and overage did not constitute a trespass is without merit.
In any event, Stoller testified that the flare was unnecessary, noting cars still fit without
the flare, and that it was just “decoration” placed on plaintiff’s property. Accordingly, evidence
Original Easement. We also reject defendant’s other arguments premised on the Original
Easement.
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in the record supported the trial court’s determination that the flare and overage were not
necessary to defendant’s use of the easement.5
Defendant further argues that the gate and its related equipment are necessary for the
enjoyment of the easement because the gate prevents delivery vehicles, trucks, and other
prohibited traffic from using Waterfall Court to access Lot 4 as required by the 2005
Amendment. There is no question that defendant has the obligation to prevent contractors,
tradespeople, and maintenance and supply vehicles, among others, from attempting to access Lot
4 through Waterfall Court. Indeed, there is some record evidence suggesting that the
construction of the gate was to address complaints from plaintiff about such violations. But the
record also reflects that the gate defendant erected on the driveway is not a mechanism that will
fulfill this obligation. To the contrary, the gate increases defendant’s violations of the easement.
And in focusing on the impermissible vehicles’ ability to actually reach Lot 4 from the driveway,
defendant fails to recognize that the vehicles have already violated the terms of the easement by
using Waterfall Court to reach the driveway in the first place.
Subsections (ii) and (iii) of paragraph 1 of the 2005 Amendment, respectively, provide
for a perpetual easement for “standard vehicular and pedestrian ingress and egress” and
“vehicular parking on the paved surfaces of the Condominium Project intended for vehicle traffic
or parking.” Neither of these easement rights is limited to the area of the driveway between
Waterfall Court and Lot 4, but necessarily encompasses use of Waterfall Court itself. Indeed,
easement rights to the driveway would have no meaning without an attendant right to use
Waterfall Court to reach or leave it.
The easements and rights granted in paragraph 1 are expressly limited and clarified by
paragraph 2. Paragraph 2 begins: “The Easement shall be limited to standard vehicular and
pedestrian traffic.” The remainder of paragraph 2 is best understood as a preventative
clarification addressing arguments that could arise over what constitutes “standard” vehicular
and pedestrian traffic. The first clarification addresses what is arguably an overburdening of that
easement that would occur if the owner of Lot 4 held a party. Because parties are not necessarily
commonly held events, arguably the increased vehicular and pedestrian traffic and parking
created by a party does not fall within “standard vehicular and pedestrian traffic”; and therefore,
is not covered by the easement. Apparently anticipating the possibility of such an argument,
paragraph 2 provides:
5
After oral argument, defendant filed supplemental authority, citing to Maniaci v Diroff, Mich
; NW2d (Docket No. 158005, rel’d November 21, 2019). The easement at issue in Maniaci
allowed the plaintiff to launch watercraft, including by boat trailer. The Supreme Court had no
difficulty in concluding that the easement provided an express right to back a boat trailer to the
water’s edge. Moreover, regrading the easement was necessary to its reasonable and proper
enjoyment because opposing counsel conceded that no boat could be launched from a boat trailer
given the property’s current slope. Based on Stoller’s testimony, Maniaci is easily
distinguishable because there is no need for the overage or flare in order for defendant to enjoy
its easement.
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The parking and access easements are specifically intended to include and allow
access for passenger vehicles and pedestrians to Lot 4, the occasional and
temporary parking of vehicles and the occasional and temporary use of valet
services for parking such vehicles at such occasions as the Grantee may require
and to allow access over the driveway between Units 4 and 5. Other than for
regular access over the driveway by pedestrians and vehicles, it is expected such
other uses will be only occasional and temporary. The vehicular access, parking,
and other access rights shall also extend to use by any visitors, invitees, and
guests of the Grantee.
Thus, the owner of Lot 4 is explicitly permitted to use Waterfall Court and the driveway from it
for the multitude of parked cars, taxis and other passenger vehicle drop-offs, and guests, along
with valet parking, all of which would occur from the occasional party. The language also
makes clear that such uses are intended to be “occasional and temporary” which would preclude
Lot 4 from overburdening the easement by becoming a party venue.
The second possible type of vehicular and pedestrian traffic that could be considered
“standard” is the temporary parking of repair persons, trade vehicles, trailers, and other large,
possibly unsightly, vehicles. Similar, in the sense of both questionable aesthetic nature and
potential to be considered vehicular use, is the storage of boats, trailers, snowmobiles, four-
wheelers, and other “recreational toys,” which are often parked on driveways to leave space for
roadway passenger vehicles in garages. Paragraph 2 of the 2005 Amendment made clear that to
the extent that such uses might be considered standard, they are explicitly prohibited. By
prohibiting moving vans, delivery trucks, lawn maintenance vehicles, and these other types of
vehicles, plaintiff not only kept the vehicles out of their line of sight, but also prevents these
generally heavier vehicles from breaking down the condition of Waterfall Court faster than
would occur if the road was just exposed to additional standard passenger vehicles. It is this
portion of the easement that defendant has overlooked and that the gate overburdens.
Defendant is correct that removal of the gate will likely allow prohibited vehicles to
access Lot 4 through the driveway from Waterfall Court in violation of the easement. However,
violations of the easement have already occurred by the time a prohibited vehicle reaches the
driveway because the breach occurs when the vehicle enters Waterfall Court instead of Waterfall
Lane. Indeed, Wiese admitted as much at trial, conceding that the easement prohibited him
“from having tradesmen, deliverers, any kind of commercial vehicle come onto Waterfall Court”
and that “[t]he gate does not prohibit them from coming onto Waterfall Court.” Moreover,
prohibited vehicles discovering the gate on the driveway then remain on plaintiff’s property for
longer periods of time while they attempt to get through the gate, park on Waterfall Court, or
otherwise attempt to determine another way to access Lot 4. Wiese testified, “They may [come
onto Waterfall Court], and then if they—when they find out they can’t enter it, they’re going to
have to leave, and enter through Waterfall Lane.” Stoller testified that, with the gate in place,
tradespeople and commercial trucks still attempted to access Lot 4 using Waterfall Court and that
although some were turned away, others “went through” because plaintiff could not police it
constantly. Thus, the gate does not prevent prohibited vehicles from entering onto plaintiff’s
property. Instead, the gate increases the duration of the breach and burden on the easement by
extending the time the prohibited vehicles spend on plaintiff’s property. Furthermore, a
reasonable inference from this testimony is that removal would reduce the burden created by the
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breaches because the vehicles could move off plaintiff’s property onto defendant’s property,
where the vehicle would no longer be committing a trespass.
For these reasons, the trial court did not clearly err when it determined that vehicular
traffic could move more easily without the pedestal, gate, and gate equipment and that the gate
was not necessary for defendant’s enjoyment of the easement.6
2. COST TO REMOVE GATE
Finally, defendant asserts that the trial court abused its discretion by ordering defendant
to relocate the gate and its related equipment because its encroachment was de minimis and
greatly outweighed by the expense it would incur in moving the gate. We disagree.
First, the trial court did not order defendant to relocate the gate and its related equipment.
It ordered its removal. Defendant may, on its own, determine whether it desires to incur the cost
to reinstall the gate at a different location that does not create a trespass. This Court can only
consider the cost of what the trial court actually ordered defendant to do.
Second, there is no evidence in the trial court record regarding the cost to remove, let
alone relocate, the gate. Defendant relies on an affidavit from Wiese that was executed in
June 2018, after had trial ended. Although this Court properly considered the affidavit in its
determination to grant a stay, when evaluating the propriety of the trial court’s removal order,
our “review is limited to the record presented in the trial court or administrative tribunal.”
Amorello v Monsanto Corp, 186 Mich. App. 324, 330; 463 NW2d 487 (1990).
Defendant’s assertion that the cost of the removal or relocation of the gate was not
relevant until the trial court actually ordered it is without merit. Plaintiff’s requested relief
included a request that the trial court order defendant to remove the gate, keypad, and all of their
component parts from plaintiff’s property and to restore the property to its condition before
defendant’s breaches. In fact, during trial, Wiese admitted that he had received correspondence
on July 20, 2016, stating that plaintiff had never agreed to the location of the keypad, it was
causing a big problem for Waterfall Hill, and Wiese should plan to remove it. Thus, when trial
took place in early 2018, whether defendant should have to remove the gate from plaintiff’s
property was at issue and its opportunity to present evidence and argument regarding the cost-
prohibitive nature of the removal was then.
Finally, defendant’s assertion that its trespasses are de minimis is wholly unfounded.
Defendant’s actions show the intent to take possession and ownership of the land. Notably, none
of the trespasses is on the land subject to the easement. The overage and the flare fall outside the
driveway area as does the land to the north of the brick wall and the land on which the keypad
was installed. Plaintiff is precluded from making use of the land underneath or the space above
the pavers in the overage and flare. Any planting would disrupt the pavers and any items placed
on the pavers would interfere with defendant’s use of the driveway, potentially blocking access
6
Consequently, defendant’s reliance on Maniaci, __ Mich __, is misplaced. See footnote 5.
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to the keypad or the electronic eyes. In fact, Stoller testified that defendant’s installation of the
gate in conjunction with the bushes Hughes had already caused landscapers and repair people to
have to cross the driveway and go through the courtyard area of condominium unit five in order
to access the property, air conditioners, and other common elements located behind units five
and six. Previously, they would walk to the east end of the brick wall, go around to the north
side of the wall, and walk along the property line to access irrigation equipment and other items
necessary for caring for plaintiff’s property as well the property north of the wall. When
defendant’s counsel asked why plaintiff needed the area north of the wall, given it was roughly a
foot-wide and tapered down to a small patch, questioning what purpose plaintiff was denied that
the land served, Stoller responded, “It’s our property . . . . It doesn’t have to have a purpose.”
Defendant’s counsel suggested that plaintiff ought to have amended the master deed or other
documents so that the boundary of plaintiff’s property was moved to the brick wall. Stoller
questioned why plaintiff would want to, and defendant’s counsel asserted that it “avoid[ed]
problems that we have here right now.” Stoller noted that there would not have been any
problems if defendant had abided by his property line and that just because an area is grass and
not being actively used does not give a neighbor the right to put something on that land.
Defendant’s counsel asked if the offensive nature of the trespass was that the gate traversed
along plaintiff’s property. Stoller responded, “It’s all of the above. It’s that. It is the arrogance
that someone can come and just do what they want whenever they want, and everything’s fine
until they get caught; that’s . . . that’s the whole point.” Stoller then added, “if the person buying
a property needs extra room, then they come and ask how do we settle this, can we rent it from
you, . . . can we change the easement, can I buy this portion. That was never done.” Stoller
noted that defendant likely did not want its expensive new home to have to be accessed from a
dirt road (Waterfall Lane) if they could use a well-maintained, paved road with expensive
condos, landscaping, and lighting (Waterfall Court).
Defendant has consistently argued that because there was no useful purpose for which
plaintiff could put that minimal amount of land on the north side of the brick wall, plaintiff ought
to have ceded ownership of it to Lot 4 and avoided this whole problem. But, as Stoller noted,
plaintiff did not have to have a use for the land; WHC owned it and plaintiff was entitled to stop
defendant from putting anything on that land plaintiff did not want. Defendant had had multiple
options through which to seek permission to use or ownership of the disputed area. Instead,
defendant took unilateral action that it knew exceeded its ownership and easement rights in an
effort to exercise dominion over plaintiff’s property. And, given Wiese’s admission that he was
going to close off Lot 4 from Waterfall Lane and make Waterfall Court the only entrance to Lot
4, defendant’s breaches were intentional. Under these circumstances, defendant’s actions were
not a minimal burden on plaintiff’s land that plaintiff could otherwise use. Instead, defendant’s
attempted taking displaced plaintiff from its land and prevented any alternative use. Because
there was no other way for the trial court to give back to plaintiff its ownership, control, and
possession of the land that defendant usurped by installing the overage, flare, gate, keypad, and
related equipment, the trial court did not abuse its discretion in ordering defendant to remove
those items.
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IV. CONCLUSION
The trial court properly determined that the 2005 Amendment superseded the Original
Easement. The trial court did not err by finding that the defendant had trespassed and that the
gate and its related equipment were not necessary for defendant’s use and enjoyment of the
easement. The trial court did not abuse its discretion in ordering defendant to remove the gate
and its related equipment.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark T. Boonstra
/s/ Anica Letica
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