Lake access provided through plat not interpreted to include boat docks

by Victoria Heldt

John J. Banacki v. David W. Howe and Jamie C. Howe, et al.
(Michigan Court of Appeals, March 20, 2012)

John Banacki, the Howes, and the remaining defendants are all residents of the Gilmore Lake Subdivision.  It consists of 62 lots, a street, a park, and two courts (East Court and West Court).  Lots 1-36 have water frontage on Magician Lake while the remaining 26 lots have frontage along Gilbert Street.  East Court is a 25-foot wide strip of waterfront land in between lots 12 and 13 and West Court is a similar strip of land between lots 29 and 30.  Banacki owns lot 13, while the defendants are the owners of lots 47, 48, 49, and 50.  When the property was platted in 1941, the dedication stated that “the park, street, and courts, as shown on said plat are hereby dedicated to the use of persons owning land adjacent to said park, street, or courts.”

Banacki filed a trespassing complaint regarding the defendants’ installation of a pier, boat lift, wooden dock, and decking adjacent to Magician Lake on the East Court.  He asserted that they do not have a right to use East Court or the adjacent lake frontage since they are not owners of land adjacent to East Court.  He further argued that defendants’ additions interfered with his ability to use and enjoy East Court and the adjacent property.  He sought an injunction to prevent future installation of such structures.  Banacki also pursued a quiet title to declare himself and another (Smit) the owners of the property adjacent to East Court.

The Howes and the rest of the defendants filed for summary disposition, arguing no trespass had occurred.  They asserted that the language of the plat dedication gave all persons owning land adjacent to any park, street, or court the right to use the parks, street, or courts.  They also argued they had a prescriptive easement for the use of East Court since their predecessors used the property in a similar fashion for 65 years without complaint.  Banacki responded by filing his own motion for summary disposition, arguing the language of the dedication clearly prevented anyone from the seasonal installation of boat lifts and the overnight mooring of boats  in East Court.  Therefore, the defendants’ actions interfered with all lot owners’ right to use East Court.  The district court concluded the defendants’ use of East Court exceeded the scope of the plat dedication and granted summary judgment in favor of Banacki.  This appeal followed.

The question in front of the Court was to what extent nonriparian land owners have access to East Court.  According to statute, a nonriparian owner has the right to “use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming” as well as “to anchor boats temporarily.”  Any additional uses must be granted by easement, which defendants argued was given to them through the plat dedication.  Since the language was unclear, the Court looked to the way in which the land was used at the time of the plat dedication.  Defendants provided an affidavit of Jack Szymanski, a previous owner of lots 47-50 for over 50 years, who testified that he used East Court as “lake access” and for the “overnight mooring of boats, and seasonal installation and removal of a wooden pier and shore station.”  He further stated that his parents, the original owners of the property, used East Court in a similar way.  The Court noted, however, that the record did not show that these activities occurred at the time of the plat dedication.  Therefore, it relied solely on the language of the dedication.

Typically, the granted “use” of streets and alleys near navigable waters extends up to the edge of the water and includes public access to the water.  The Court consulted the common definition of a “court” and determined it should be treated in the same way.  It concluded that the defendants failed to prove that the plat dedication granted any other “use” outside of general public access to the water surface.  There was no evidence that the dedication allowed individual lot owners to monopolize East Court by permanently parking boats or installing decks and boat lifts within East Court.  In regards to the defendants’ supposed prescriptive easement, the Court noted that a prescriptive easement is usually appropriate only where an express easement has failed because of a defect.  This is not the case here.  It further compared a prescriptive easement to adverse possession, which requires an element of adversity.  There was no adversity or hostility present in this case.  Therefore, the Court concluded that no prescriptive easement was granted.  It affirmed the district court’s decision.

Forty-Year Act used to extinguish city’s interest in land

by Allison Arends

City Of Lake View vs. Patrick L. Houston (link to case here)
(Unpublished opinion, Iowa Court of Appeals, December 31, 2008)

Landowner uses Marketable Record Title Act to extinguish city’s claimed interest in roadway identified on plats.

In 1964 Houston was conveyed by warranty deed a half interest to property in Sac County. This property included the disputed property: a 33-foot by 110-foot strip of undeveloped land identified by Sac County in 1874 for a county road that was never built.  Although the deed did include the disputed property, Houston was not assessed property taxes on it until 1998 when the Sac County assessor received a title opinion that Houson was the owner. In 2006 the city of Lake View filed a petition to quiet title to the disputed property, arguing that its ownership was superior to any interest of Houston’s.

Lake View’s claim of ownership over the disputed property was based on two recorded plats.  The first – the Dension Beach Plat of 1916, replatted in 1932 – included lines depicting the disputed property as “north-south roadway,”  but the the property itself was not platted.  The second – the Lakewood Park Plat in 1933 – depicted the disputed area as part of  “Government Lot 1,” but Government Lot 1 was not a part of the platted area of Lakewood Park.  The city’s expert witness testified that because Houston’s deed referred to “Government Lots 1 and 2″ a title examiner was obligated to consider plats identifying Government Lots 1 and 2, although the expert also acknowledged that Houson’s deed did not specifically refer to either the Denison Beach Plat nor the Lakewood Park Plat.  The district court ruled in favor of Lake View, stating that “the recorded plats clearly identify the road and all plats involved were recorded prior to the deed transferring the disputed lot to Houston.”  

Houston appealed to the Iowa Court of Appeals, claiming that Lake View’s petition to quiet title was barred by Iowa’s Marketable Record Title Act (found at Iowa Code 614.29 to 614.38) (commonly known as the “forty-year act”).   Intended to simplify land title transactions, the Act states that “subject to certain exceptions… a person is deemed to have a marketable record title to any interest in land if that person has an unbroken chain of title of record to such interest for forty years or more.” It was undisputed that Houston has had a forty-year unbroken chain of record title to the disputed property.  Therefore, in order for Lake View to avoid having its interest in the property extinguished by the Act it must prove that it falls within one of the identified exceptions. 

The exception to the Act relevant to this case is set out in Iowa Code 614.32(1).  In a previous case the Iowa Supreme Court determined that the applicability of the exception depends on the answers to three questions:  (1) whether the interest in the disputed property is inherent in the “muniments of title” (the legal instruments through which title to land passes)  forming the landowner’s chain of record title;  (2) whether the interest was created prior to the landowner’s root of title; and  (3) whether the deeds specifically identify the record title transaction that created the interest. 

Lake View’s interest in the property arose prior to Houston’s 1964 warranty deed, thereby answering the second question in favor of the city.  However, the Court found that neither the first nor third questions could be resolved for the city.  The Court  found that because plats are not “deeds, wills or otherwise instruments through which title to land passes,” the city’s interest was not inherent in a minument of title.  Furthermore, because Houston’s 1964 deed did not specifically identify the plats upon which the city depended to illustrate the creation of its interest, neither was the third requirement of section 614.32 satisfied.  The Court concluded, therefore, that Lake View’s interest was extinguished under the Marketable Recort Title Act, and dismissed Lake View’s petition to quiet title.

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