Virginia Park Subdivision Association v. Pascal Brown ( 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
VIRGINIA PARK SUBDIVISION UNPUBLISHED
ASSOCIATION, January 10, 2019
Plaintiff-Appellee,
and
CAROL D. HAIR, SEAN JACQUES, TALIA
SAFARO, ROK IVEZAJ, MARIA IVEZAJ,
LUIGI DEDA, AFERDITA DEDA,
CHRISTOPHER D. YEZBICK, KIMBERLY I.
YEZBICK, GEORGE IVEZAJ, JAMIE IVEZAJ,
DAREN L. REED, JOYCE A. PILLSBURY,
DAVID J. LUCCHETTI, MARK MATKOVICH,
MARILYN E. MILLS, RUSSELL A.
MCCLELLAND, KARINE MCCLELLAND,
GREGORY C. COLEY, NAOMI COLEY,
JOSHUA P. CRESWELL, GAIL CRESWELL,
MICHAEL W. MAURER, EDWARD H.
GILBERT, and FLORIN C. MOLDOVAN,
Plaintiffs-Counterdefendants-
Appellees,
v No. 339762
Oakland Circuit Court
PASCAL BROWN and MEGA MANAGEMENT LC No. 2017-157802-CH
GROUP,
Defendants,
and
JOANNE BROWN also known as JOANNE
GAINES, KATIE STILL, and BLAIR STILL,
Defendants-Counterplaintiffs-
Appellants,
and
JULIAN C. URSING and KIMBERLY D.
URSING,
Defendants-Counterplaintiffs.
VIRGINIA PARK SUBDIVISION
ASSOCIATION,
Plaintiff-Appellee,
and
CAROL D. HAIR, SEAN JACQUES, TALIA
SAFARO, ROK IVEZAJ, MARIA IVEZAJ, LUIGI
DEDA, AFERDITA DEDA, CHRISTOPHER D.
YEZBICK, KIMBERLY I. YEZBICK, GEORGE
IVEZAJ, JAMIE IVEZAJ, DAREN L. REED,
JOYCE A. PILLSBURY, DAVID J. LUCCHETTI,
MARK MATKOVICH, MARILYN E. MILLS,
RUSSELL A. MCCLELLAND, KARINE
MCCLELLAND, GREGORY C. COLEY, NAOMI
COLEY, JOSHUA P. CRESWELL, GAIL
CRESWELL, MICHAEL W. MAURER,
EDWARD H. GILBERT, and FLORIN C.
MOLDOVAN,
Plaintiffs-Counterdefendants-
Appellees,
v No. 339808
Oakland Circuit Court
PASCAL BROWN and MEGA MANAGEMENT LC No. 2017-157802-CH
GROUP,
Defendants,
and
JOANNE BROWN also known as JOANNE
-2-
GAINES, KATIE STILL, and BLAIR STILL,
Defendants-Counterplaintiffs,
and
JULIAN C. URSING and KIMBERLY D.
URSING,
Defendants-Counterplaintiffs-
Appellants.
Before: JANSEN, P.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
These consolidated appeals arise from a single case in the trial court involving a dispute
over riparian1 rights. Defendants Joanne Brown,2 Katie Still, Blair Still, Julian Ursing, and
Kimberly Ursing (collectively the front-lot owners)3 appeal as of right the trial court’s order (1)
denying defendants’ motion for summary disposition, (2) declaring as a matter of law under
MCR 2.116(I)(1) that all lot owners in the Virginia Park Subdivision have a use easement in the
platted park but no riparian rights, and dismissing all remaining claims as moot. Docket No.
339762 concerns the appeal filed by Brown and the Stills, and Docket No. 339808 concerns the
appeal filed by the Ursings. This Court consolidated both appeals.4 For the reasons set forth in
1
We acknowledge that the rights at issue in this case technically are littoral rights rather than
riparian rights because the dispute involves land that abuts a lake rather than a river. See 2000
Baum Family Trust v Babel, 488 Mich. 136, 138 n 1; 793 NW2d 633 (2010). However, we will
nonetheless use the term “riparian” in this opinion because that term is often used to refer to both
types of land. See id.
2
Joanne Brown is apparently also known as Joanne Gaines.
3
We have chosen to use the terms “front-lot owners” and “back-lot owners” in this opinion
because it seems to be the most clear way to refer to these groups of owners and their respective
proximity to the lake. However, we recognize that plaintiffs generally contest this
characterization of subdivision lot owners. We clarify that we ascribe no legal significance to
these characterizations and that our disposition of this appeal is based instead on the legal
analysis that follows in this opinion.
4
Virginia Park Subdivision Ass’n v Brown, unpublished order of the Court of Appeals, entered
August 31, 2017 (Docket Nos. 339762 and 339808).
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this opinion, we affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
I. BACKGROUND
The individuals involved in this action are all owners of lots in the Virginia Park
Subdivision, located in Oakland County. The subdivision was platted in 1917 and consists of 26
lots, a street, and a park that abuts Walled Lake. Lots 12 through 15 (the front lots) are separated
from Walled Lake by the park. Brown owns lots 12 and 13, the Ursings own lot 14, and the
Stills own lot 15. According to the plat, these lots all share their eastern boundary line with the
western boundary line of the park, and the eastern edge of the park abuts Walled Lake. The
remaining subdivision lots (the back lots) are located west of the front lots. All of the individual
plaintiffs (collectively the back-lot owners) own back lots. The back lots are separated from
Walled Lake by both the front lots and the park. None of the back lots border the park or the
lake. The plat dedication provides that “the street and park as shown on said plat are hereby
dedicated to the use of lot owners only.”
In 2017, a dispute developed between the front-lot owners and back-lot owners over the
use of the park and, specifically, rights to install docks and moor boats. The front-lot owners
maintained that they exclusively owned the riparian rights in the park and that the back-lot
owners only had an easement permitting them to use the park for customary park purposes that
did not include the right to install docks or moor watercraft overnight or seasonally.
Plaintiffs, which included the back-lot owners and the Virginia Park Subdivision
Association,5 filed this lawsuit seeking (1) a declaratory judgment that all subdivision lot owners
held equal and coextensive rights regarding the ownership and use of the park and (2) to quiet
title in favor of all lot owners with a declaration that all lot owners held fee simple title to the
park. Plaintiffs additionally asserted a trespass claim and a nuisance claim. Both of these claims
were based plaintiffs’ allegations that Brown’s deck encroached onto the park, that the Stills had
a driveway, patio, and well/planter that encroached onto the park, and that the Stills drove
vehicles over the park to reach their driveway.
Brown and the Stills subsequently filed counterclaims against the back-lot owners. In
Count I, Brown and the Stills sought a declaratory judgment that the back-lot owners only held
an irrevocable easement in the park and that the front-lot owners held the underlying fee interest
in the park and the exclusive ownership of the riparian rights. In Count II, they sought a
judgment quieting title in favor of the front-lot owners, subject to the easement held by the back-
lot owners. In Count III, they sought the ejectment of docks and watercraft of certain back-lot
owners. In Count IV, they asserted a trespass claim based on the installation of docks and
mooring of watercraft by certain back-lot owners. In Counts V and VI, Brown and the Stills
asserted that the encroachments alleged by plaintiffs in their trespass and nuisance claims were
5
According to plaintiffs’ complaint, the Virginia Park Subdivision Association “is a voluntary,
unincorporated association comprised of the owners of lots 1 through 11 and 16 through 26 of
the Virginia Park Subdivision.”
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not actually encroachments, relying on claims of adverse possession, prescriptive easement, and
acquiescence. In Count VII, Brown and the Stills sought a declaratory judgment that the Stills
could continue to use their current driveway access route to their lot. The Ursings also raised
four counterclaims similar to the first four counts raised by Brown and the Stills.
Brown and the Stills moved for summary disposition pursuant to MCR 2.116(C)(8) and
(C)(10) on all of the claims and counterclaims regarding park ownership, riparian rights, dock
installation, and watercraft mooring. They argued that the dedication language in the plat
granted the back-lot owners an irrevocable easement to use the park for traditional park purposes
but did not grant riparian rights to the back-lot owners, that the back-lot owners had no
ownership rights in the park that could give rise to riparian rights, and that the front-lot owners
had riparian rights because their lots were separated from the lake only by an intervening surface
easement or right-of-way. Brown and the Stills maintained that the front lots essentially
extended to the water’s edge, and that the front-lot owners held the fee interest in the park as
well as riparian rights, because the front lots abutted a right-of-way that was contiguous to the
water. The Ursings concurred in the motion for summary disposition, expressly adopting the
arguments made by Brown and the Stills.
The back-lot owners responded that the dedication language was egalitarian and that the
park was owned by all lot owners in the subdivision, not just the front-lot owners. The back-lot
owners also argued that the front-lot owners’ attempts to claim exclusive ownership rested on
cases that were distinguishable from the instant case because they either involved different
dedication language or they involved streets or walkways rather than parks. The back-lot owners
requested that the trial court grant summary disposition in their favor, concluding that the park
was owned by all lot owners in the subdivision or, alternatively, that all lot owners held the same
easement rights and none of them held the underlying fee. Additionally, the back-lot owners
argued that even if the trial court determined that they held only an easement to the park and
rejected their claim of joint ownership in favor of a conclusion that the front-lot owners owned
the park, the scope of the easement nonetheless presented a question of fact.
After a hearing on the summary disposition motion, the trial court issued a written
opinion and order denying the parties’ various requests for summary disposition and “find[ing]
that it is appropriate pursuant to MCR 2.116(I)(1)[6] to declare that the plat dedication establishes
that all lot owners have an easement in the park and none of the lot owners have riparian rights.”
The trial court found the caselaw cited by the front-lot owners to be distinguishable; the court
concluded that the park was the only riparian land in the subdivision and that the plat dedication
granted all of the subdivision lot owners “an irrevocable easement to use the park such that none
of the lot owners have riparian rights.”
This appeal ensued.
6
MCR 2.116(I)(1) provides that “[i]f the pleadings show that a party is entitled to judgment as a
matter of law, or if the affidavits or other proofs show that there is no genuine issue of material
fact, the court shall render judgment without delay.”
-5-
II. STANDARD OF REVIEW
We review a trial court’s summary disposition ruling de novo, including when a
declaratory judgment is sought in the action. Maiden v Rozwood, 461 Mich. 109, 118; 597
NW2d 817 (1999); Lansing Sch Ed Ass’n v Lansing Bd of Ed (On Remand), 293 Mich. App. 506,
512-513; 810 NW2d 95 (2011). This Court also reviews de novo a trial court’s ruling on
equitable matters, including actions of quiet title and ejectment, which have been combined to
create a single action to determine interests in land by the Legislature’s enactment of MCL
600.2932.7 Adams v Adams, 276 Mich. App. 704, 712; 742 NW2d 399 (2007); Dobie v Morrison,
227 Mich. App. 536, 538; 575 NW2d 817 (1998); Dyball v Lennox, 260 Mich. App. 698, 703; 680
NW2d 522 (2004). The existence of riparian rights also generally presents a question of law that
is reviewed de novo. See 2000 Baum Family Trust v Babel, 488 Mich. 136, 143; 793 NW2d 633
(2010); Holton v Ward, 303 Mich. App. 718, 725; 847 NW2d 1 (2014).
“When a person purchases property that is recorded in a plat, the purchaser receives both
the interest described in the deed and the rights indicated in the plat.” Morse v Colitti, 317 Mich
App 526, 534; 896 NW2d 15 (2016). Our task when interpreting a plat is to give effect to the
plattor’s intent, and unambiguous language in a legal instrument is enforced as written. Id.
However, “[t]he scope and extent of an easement is generally a question of fact that is reviewed
for clear error on appeal.” Id. (quotation marks and citation omitted); see also Dyball, 260 Mich
App at 703 (“The extent of a party’s rights under an easement is a question of fact for the trial
court, which we review for clear error.”) (quotation marks and citation omitted). “The question
whether the scope of an easement has been exceeded is also a question of fact reviewed for clear
error.” Morse, 317 Mich. App. at 540.
Additionally, a summary disposition motion is properly considered under MCR
2.116(C)(10) instead of MCR 2.116(C)(8) when, as is true in this case, it is necessary to consider
the evidence submitted by the parties instead of being confined merely to the pleadings
themselves. Maiden, 461 Mich. at 119-120. Under MCR 2.116(C)(10), a court considers
“affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, in
the light most favorable to the party opposing the motion,” and the moving party is entitled to
judgment as a matter of law if there is no genuine issue of material fact. Id. at 120 (citation
omitted). Furthermore,
when a court reviews a motion for summary disposition, MCR 2.116(I)(1)
provides that “[i]f the pleadings show that a party is entitled to judgment as a
matter of law, or if the affidavits or other proofs show that there is no genuine
issue of material fact, the court shall render judgment without delay.” Under this
rule, a trial court has authority to grant summary disposition sua sponte, as long as
one of the two conditions in the rule is satisfied. [Al-Maliki v LaGrant, 286 Mich
App 483, 485; 781 NW2d 853 (2009) (alteration in original).]
III. ANALYSIS
7
MCL 600.2932(5) provides that “[a]ctions under this section are equitable in nature.”
-6-
The front-lot owners and the amicus curiae argue on appeal that the front lots are riparian,
and that the front-lot owners exclusively hold both the underlying fee interest in the park and
riparian rights, because the front lots are only separated from the lake by a surface easement
dedicated as a private park. According to the front-lot owners, the dedication granted the back-
lot owners only an irrevocable easement to use the park for traditional and customary park
purposes that does not include an ownership interest in the park or the exercise of riparian rights.
A parcel is considered “riparian land” if it “includes therein a part of or is bounded by a
natural water course.” 2000 Baum Family Trust, 488 Mich. at 166 (quotation marks and citation
omitted). Owners of riparian land hold certain exclusive rights, including “the right to erect and
maintain docks, as well as to permanently anchor boats off the shore.” Id. The plat in the instant
case shows that the eastern boundary of each front lot abuts the western boundary of the park and
that the front lots thus do not extend any further east. The area of land designated as a park is
situated between the front lots and the lake, with the eastern edge of the park abutting the lake.
Hence, the front lots in this case are not riparian in the ordinary sense and do not satisfy this
general definition of riparian land. “Generally, it is an ‘indispensable requisite’ that riparian land
actually touch the water.” Id. at 167 (citation omitted). “Normally, the interposition of a fee title
between upland and water destroys riparian rights, or rather transfers them to the interposing
owner.” Id. (quotation marks and citation omitted).
However, there are exceptions to this general rule. In Croucher v Wooster, 271 Mich.
337, 344-345; 260 N.W. 739 (1935), our Supreme Court adopted the following rule: “in the
absence of an intention of the parties appearing to the contrary, the conveyance of a parcel of
land bordering on a highway contiguous to a lake shore conveys the appurtenant riparian rights.”
In Croucher, the highway separating the plaintiffs’ property from the lake was a public road that
had been established as a highway by user. Id. at 339-340.
In Thies v Howland, 424 Mich. 282, 290; 380 NW2d 463 (1985), our Supreme Court
extended the rule announced in Croucher, concluding that it was “equally applicable to ways
dedicated to the private use of a finite number of persons.” Thies involved a dispute between
first-row lot owners and second-row lot owners over riparian rights: the plaintiffs owned first-
row lots that were separated from the lake by a “twelve-foot wide ‘walk’ that [ran] immediately
along the lakeshore,” and the defendants owned lots in the second row of the subdivision that
were situated with the first-row lots being between the second-row lots and the lake. Id. at 286.
The Thies Court held:
Unless a contrary intention appears, owners of land abutting any right of way
which is contiguous to the water are presumed to own the fee in the entire way,
subject to the easement. Since the owner’s property is deemed to run to the water,
it is riparian property. Thus, plaintiffs are presumed to own the fee in the walk
running along the front of their lots unless the plattors intended otherwise. [Id. at
293 (citations omitted).]
In reaching this holding, the Thies Court explained as follows:
When a conveyance refers to a plat which represents lots as bounded by a street
and describes the lots by numbers, the reference is equivalent to express language
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in the deed giving the street as a boundary. Unless a contrary intent appears,
owners of land abutting a street are presumed to own the fee in the street to the
center, subject to the easement. However, this rule is not so easily applied where
the street is contiguous to the water since there are abutting lots only on one side.
The crucial question is who owns the other half of the way which is clearly
riparian property—the plattors, the “front lot” owners, or the persons to whom the
way is dedicated?
Although there is conflicting authority in other jurisdictions, the issue was
settled in this state by Croucher. There, the dedication of the plat described the
plattors’ land as lying south of a public highway that paralleled the lakeshore.
The two lots at issue abutted the highway which, at those points, was in direct
contact with the water. All of the deeds described the lots only by the lot numbers
noted on the plat. The plattors conveyed each lot at issue twice. The question
presented was whether the plattors had parted with all of their interest in each lot,
including their riparian rights, under the first conveyance. This Court concluded
that a fee interest in each lot, which included the adjoining portion of the highway
and the appurtenant riparian rights, passed to the first grantees, subject to the
public’s use of the highway . . . . [Id. at 291-292 (citations omitted).]
In 2000 Baum Family Trust, 488 Mich. at 138, 140, 186, our Supreme Court held that the
owners of property separated from a lake by a public road running parallel to the lakeshore
possess riparian rights, reaffirming this well-established principle; the Court further held that the
county road commission that had accepted the statutory dedication of the public road and
maintained the road did not have riparian rights. As pertinent to our discussion in the instant
case, our Supreme Court in 2000 Baum Family Trust discussed the principle that a common-law
dedication of a road for public use does not ordinarily result in conveying the fee to that land. Id.
at 147-148. The Court explained that “the fee in the soil remains in the original owner, where a
public road is established over it; but the use of the road is in the public. The owner parts with
this use only.” Id. at 148 (quotation marks and citation omitted). The Court also cited the rule
that “a conveyance of land bounded on a highway, street, or alley carries with it the fee to the
center thereof, subject to the easement of public way, provided the grantor at the time of
conveyance owned to the center and there are no words in the deed showing a contrary
intent . . . .” Id. at 148-149 (quotation marks and citation omitted; ellipsis in original).
Additionally, the Court explained that both statutory dedications accomplished through a
recorded plat and common-law dedications resulted in the owner of land abutting the street
possessing a reversionary interest to the center of the street. Id. at 149, 155. In reaching its
holding, the Court examined the dedication of the road “to the use of the public” contained in the
plat at issue and the relevant statutory language of the plat act of 1887, which was the plat act in
effect at the time that the plat was recorded. Id. at 141, 144, 158-159, 161-164, 184. The Court
concluded that the dedication only granted nominal title or a “base fee” to the governmental
entity, which the Court explained was “a fee in name only” that did not convey beneficial
ownership to the governmental entity or otherwise expand the rights in dedicated land
traditionally enjoyed by the government. Id. at 163-166.
Our Supreme Court in 2000 Baum Family Trust summarized its holding and reasoning as
follows:
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The “fee” conveyed by the 1887 plat act is held “in trust to and for the
uses and purposes therein designated, and for no other use or purpose
whatsoever.” The particular property interest created by the statute, a “base fee,”
conveys to the receiving governmental entity only “nominal title.” A base fee in a
public road running parallel to the water has never been thought to divest front-lot
property owners of their riparian rights, much less convey riparian rights to the
county. In the history of Michigan property law, no Michigan decision has ever
suggested these propositions, and every Michigan decision that has addressed the
exact issue before us has concluded as we do, that riparian rights rest with the
front-lot owners. On the authority of our longstanding caselaw, and mindful of
the particularly compelling mandates of stare decisis in the realm of property law,
we hold that plaintiffs have riparian rights, as similarly situated persons have
always had in this state. [Id. at 186 (citations omitted).]
In sum, while owners of property abutting a road or walkway, whether public or private,
that is contiguous and parallel to the shoreline are presumed to own the fee to the water’s edge
subject to the easement and to possess riparian rights, the rational for this rule is based on the
well-established principle that owners of land abutting a road retain ownership of the fee
underlying the road subject to the easement. While a landowner’s fee interest in the road
typically only extends to the center of the road, when the other side of the road abuts the
shoreline rather than another parcel of land, the fee interest instead continues to the water. Thies
424 Mich. at 291-292. Hence, the possession of riparian rights by owners of property separated
from the shoreline by only a road or walkway is grounded in the legal principles generally
applicable to owners of property abutting roads. This rule is not based on the mere fact that such
a property owner is closer to the water than the owner of what may be called a “back lot.”
The front-lot owners and amicus curiae in this case rely on Dobie, 227 Mich. App. 536,
essentially for the proposition that this fairly broad rule described above with respect to roads
and walkways also applies with equal force when an owner’s property is only separated from the
water by a park that is subject to an easement. Dobie involved a dispute over riparian rights
between back-lot owners and one front-lot owner whose property was separated from the lake by
a park. Id. at 537. The plat indicated that the park was dedicated to “the use of the owners of
lots in this plat which have no lake frontage.” Id. In Dobie, this Court affirmed the trial court’s
summary disposition ruling that the front-lot owner retained ownership in fee to the park, along
with riparian rights. Id. at 538, 540.
However, a closer examination of this Court’s reasoning in Dobie reveals that it does not
set forth the broad, bright-line rule for which the front-lot owners and amici curiae in this case
advocate. The Dobie Court began by discussing the holdings and reasoning of Croucher and
Thies and then stated as follows:
[T]his case is not controlled by Thies. Although the park in this case was
primarily created to provide the back lot owners with access to the lakefront, a
park is not the same as a right of way. The reasoning in Thies was predicated on
a mere walkway dividing the riparian owners from the body of water in that case.
We do not regard it as appropriate to compare a narrow walkway along a body of
water to the relatively large park in this case. Absent a contrary indication, it is
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eminently reasonable to presume that a walkway along a lake was placed merely
as an easement to provide access to the lake and not with the intent to convey
actual fee ownership of the land containing the walkway. The same is simply not
true of the relatively large park in this case. [Id. at 539-540 (emphasis added;
citation omitted).]
Next, after rejecting the application of the road and walkway cases to the circumstances
involving a park, the Dobie Court determined that the dedication language providing that the
park was for “the use of the owners of lots in this plat which have no lake frontage” constituted
the grant of an easement rather than a grant of fee ownership rights. Id. at 540. The Dobie Court
further concluded that this dedication language did not purport to transfer ownership of the park
from the original plattor, who was the initial owner of the front lot at issue, to the back-lot
owners. Id. The Court then noted that the undisputed evidence that the original plattor “had
supplied the park with electricity, portable toilets, and picnic tables support[ed] the conclusion
that the [original plattor] intended to retain general control and, accordingly, ownership of the
park.” Id.
Thus, Dobie merely stands for the proposition that a plat’s dedication of a park for “the
use” of certain lot owners conveys only an easement to those lot owners, and the
contemporaneous facts and circumstances may determine the ownership of the park when the
dedication is silent as to the allocation of the ownership interest in the park. Furthermore, Dobie
makes clear that the rules announced in Croucher and Thies apply to easements in the form of
roads or walkways and do not somehow automatically apply to all forms of easements that could
potentially separate a lot from the shoreline. More specifically, Dobie rejected the extension of
the rule for roads and walkways to an easement granted for purposes of maintaining a private
park.8 In this case, the front-lot owners and amicus curiae fail to fully comprehend the
underlying rationale supporting the holdings of Croucher, Thies, Baum, and Dobie, and they fail
to understand that there is no bright-line rule granting riparian rights to all owners of property
that is separated from the shoreline by some form of an easement.
With the above legal principles in mind, we now must examine the dedication language
in the plat at issue. “When a person purchases property that is recorded in a plat, the purchaser
receives both the interest described in the deed and the rights indicated in the plat.” Morse, 317
Mich. App. at 534. In this case, because the front-lot owners’ and amici curiae’s arguments are
premised on the dedication language in the plat and the location of the front lots in relation to the
park and the lake, we need only address the language of the plat to determine the lot owners’
rights.9 “The first principle of the law of dedication is that all cases must be considered with
8
Notably, the park in Dobie was not dedicated to the use of the public, just as the park in the
instant case also was not dedicated to the use of the public.
9
The front-lot owners claim that deeds show a chain of title between them and the original
plattor of the Virginia Park Subdivision, but this is irrelevant in the absence of evidence that the
deeds actually describe an ownership interest in the park. The front-lot owners did not submit
such a deed in the trial court proceedings below. To the extent that the front-lot owners now rely
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reference to the use for which they are made,” and “the scope of the dedication controls the
resolution of this question.” 2000 Baum Family Trust, 488 Mich. at 183 (quotation marks and
citation omitted). “[D]edications of land for private use in plats before 1967 PA 288 took effect
convey at least an irrevocable easement in the dedicated land.” Little v Hirschman, 469 Mich.
553, 564; 677 NW2d 319 (2004). “When interpreting a plat, this Court seeks to effectuate the
intent of the plattor.” Morse, 317 Mich. App. at 534. “Where the language of a legal instrument
is plain and unambiguous, it is to be enforced as written and no further inquiry is permitted.”
Little v Kin, 468 Mich. 699, 700; 664 NW2d 749 (2003). “If the text of the easement is
ambiguous, extrinsic evidence may be considered by the trial court in order to determine the
scope of the easement.” Id.
The dedication at issue in the instant case states that “the street and park as shown on said
plat are hereby dedicated to the use of lot owners only.” Language dedicating land for other’s
“use” has consistently been held to constitute the grant of an easement and to ordinarily not
convey a fee interest. See, e.g., Thies, 424 Mich. at 293; Morse, 317 Mich. App. at 534; Dobie,
227 Mich. App. at 540. The dedication language refers only to the use of the park and gives no
indication that any ownership interest is being transferred. “An easement represents the right to
use another’s land for a specified purpose.” Plymouth Canton Community Crier, Inc v Prose,
242 Mich. App. 676, 678; 619 NW2d 725 (2000). “An easement does not displace the general
possession of the land by its owner, but merely grants the holder of the easement qualified
possession only to the extent necessary for enjoyment of the rights conferred by the easement.”
Id. at 679 n 2. Hence, the plat dedication in this case granted only an easement in the park.
Next, we must ascertain the holders of the easement. In Morse, 317 Mich. App. at 534-
535, this Court concluded that language dedicating a park to “ ‘the use of the present and future
on appeal on deeds that were not part of the summary disposition proceedings in the trial court,
this constitutes an attempt to impermissibly expand the record on appeal. Sherman v Sea Ray
Boats, Inc, 251 Mich. App. 41, 56; 649 NW2d 783 (2002) (“This Court’s review is limited to the
record established by the trial court, and a party may not expand the record on appeal.”). In
reviewing a trial court’s summary disposition ruling, we do not consider evidence that was not
then before the trial court. Quinto v Cross & Peters Co, 451 Mich. 358, 366 n 5; 547 NW2d 314
(1996) (declining on review of a trial court’s grant of summary disposition to consider evidence
that was submitted by the plaintiff after the trial court issued its ruling, reasoning that a trial court
only considers the evidence then available to it when deciding a summary disposition motion).
Moreover, the building restriction in the deed that the front-lot owners rely on to argue that the
lakeshore is included within the boundaries of their lots does not explicitly mention the park or
the fee interest of the park or lakeshore. Arguments about the potential meaning implied by the
restriction should be made in the trial court in the first instance. The front-lot owners did not
develop a record in the trial court for this theory of ownership, and this issue is therefore not
properly before this Court for review at this juncture. “Appellate review is limited to issues
actually decided by the trial court.” Allen v Keating, 205 Mich. App. 560, 564; 517 NW2d 830
(1994).
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lot owners’ ” was a grant of an easement in the park to the present and future lot owners. In
Dobie, 227 Mich. App. at 537, 540 this Court concluded that the dedication of a park to “ ‘the use
of the owners of lots in this plat which have no lake frontage’ ” conveyed an easement to the
back-lot owners in the subdivision. Therefore, the dedication language in this case merely
conveyed the park easement to all “lot owners,” which includes both front-lot and back-lot
owners, and the dedication did not convey a fee interest in the park to any lot owners. Thies, 424
Mich. at 293; Morse, 317 Mich. App. at 534; Dobie, 227 Mich. App. at 540.
The front-lot owners do not dispute the conclusion that all of the subdivision lot owners
hold an easement in the park. Instead, the front-lot owners and amicus curiae advocate for a
bright-line rule that because the property separating the front-lots from the lake is subject to an
easement, the front lots must own the underlying fee to the park. As previously discussed, this
argument is unavailing. The fact that the front lots are only separated from the lake by a park
that is subject to an easement does not itself mean that the front-lot owners hold an ownership
interest in the park or riparian rights. We therefore affirm the trial court’s ruling that the plat
dedication merely granted to all lot owners an easement to use the park.
However, the trial court’s conclusion that all of the lot owners hold an easement to use
the park did not fully resolve the dispute in this case, which revolved around a conflict over the
lot owners’ ability to install docks and moor boats. There are multiple owners of front and back
lots involved in this lawsuit and only a finite area of park property abutting the lake. When the
dedication in a plat grants an easement to the owners of lots in the subdivision, those easement
rights “may not be infringed by one lot owner for his own convenience to the detriment of his
fellow lot owners.” Minnis v Jyleen, 333 Mich. 447, 449, 451, 453-454; 53 NW2d 328 (1952).
“A person entitled to the use of an easement cannot materially increase the burden upon the
servient estate beyond what was originally contemplated.” Thies, 424 Mich. at 297.
Furthermore, “[w]hile full riparian rights and ownership may not be severed from riparian land
and transferred to nonriparian backlot owners, Michigan law clearly allows the original owner of
riparian property to grant an easement to backlot owners to enjoy certain rights that are
traditionally regarded as exclusively riparian.” Dyball, 260 Mich. App. at 706 (quotation marks
and citation omitted). As previously noted, the scope and extent of an easement, as well as
determining whether the scope of an easement has been exceeded, generally present questions of
fact. Morse, 317 Mich. App. at 534, 540.
In this case, although the trial court determined that the plat dedication granted an
easement to use the park to all of the lot owners and did not grant riparian rights to any lot
owners, the trial court did not issue a ruling about the nature of the use rights that were within the
scope of the easement held by the lot owners. Without a determination of the scope of the
easement and whether the easement permitted any uses of a nature similar to those rights that are
traditionally considered riparian rights (even though the plat did not actually grant ownership of
riparian rights to any lot owner), the lot owners cannot know if they are infringing on the
easement rights of other lot owners or materially increasing the burden of the easement on the
servient estate. Minnis, 333 Mich. at 453-454; Thies, 424 Mich. at 297. As our Supreme Court
explained in Thies, 424 Mich. at 289:
Even if we conclude that defendants merely have an easement interest in
the walk and alleys, they may still prevail. Plaintiffs cannot prevent defendants
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from erecting a dock or permanently anchoring their boats if these activities are
within the scope of the plat’s dedication, and do not unreasonably interfere with
plaintiff’s use and enjoyment of their property. The ownership of the walk and
alleys and the scope of the dedication of these lands are interrelated, but distinct
inquiries. [Citation omitted.]
Because the trial court did not rule on the scope of the easement, we decline to address this issue
further. Allen v Keating, 205 Mich. App. 560, 564; 517 NW2d 830 (1994) (“Appellate review is
limited to issues actually decided by the trial court.”).
Additionally, Brown and the Stills argue that the trial court erred by dismissing Counts
VI and VII of their counterclaim. As an initial matter, the trial court did not dismiss Count VII
for being moot; it specifically stated in its opinion and order that it was deciding all of the
declaratory judgment counts, including Count VII of the counterclaim filed by Brown and the
Stills. However, Count VI appears to involve questions about the Stills exceeding their right to
use the park property. Because it is necessary to determine the scope of the easement in order to
resolve such issues, Counts VI could not be dismissed on the ground of mootness. “An issue is
deemed moot when an event occurs that renders it impossible for a reviewing court to grant
relief.” B P 7 v Bureau of State Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998). In this
case, such an event has not occurred. Instead, the scope of the Stills’ permissible use of the park
pursuant to their easement is still unresolved. Therefore, the trial court erred by dismissing this
count on the ground of mootness.
In conclusion, we affirm the trial court to the extent that it determined that the current
record demonstrated that the plat did not grant riparian rights to any lot owners and instead
granted all lot owners an easement to use the park. We reverse the trial court’s grant of summary
disposition and its ruling dismissing Count VI of the counterclaim filed by Brown and the Stills
as moot. We remand this matter for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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