Lakeway easement interpreted as providing access, not a park

by Victoria Heldt

Bedford, et. al., v. Joan Yvonne Rogers, Joan Yvonne Rogers Trust
(Michigan Court of Appeals, April 17, 2012)

The long list of plaintiffs in this case is comprised of property owners within the Glen Eyrie subdivision located on Crystal Lake.  The plat (recorded in 1920) and the parties’ deeds established a 100-foot wide strip of land designated as the “lakeway” between the plaintiffs’ property and the edge of Crystal Lake.  The lots do not extend all the way to the water.  The lakeway was to be “dedicated to the common use of property owners in Glen Eyrie plat.”  Sometime after 1920, Crystal Lake Drive was constructed parallel to, and partially within, the lakeway.  Surveys done in 2001 and 2010 indicated that the border separating the property owners’ lots and the lakeway is located near the center line of Crystal Lake Drive.

Historically, some of the property owners built boathouses or storage units in the lakeway.  When Rogers purchased her lot in 1987 a 20 x 28-foot boathouse was built in the lakeway in front of her property.  In September 2009 she applied to the township for a permit to build a new 28 x 34-foot boathouse to replace the existing one.  The township granted the permit and Rogers began construction in October 2009.  The new “boathouse” was to include running water, heat, toilet facilities, a kitchenette, a workshop, and a second floor cupola.

As Rogers’ construction was in its early stages, the plaintiffs wrote a letter through an attorney asking Rogers to cease construction since the lakeway was reserved for the common use of property owners.  Rogers refused to stop the construction.  In December 2009 the Lake Township Zoning Administrator wrote her a letter stating the building violated the township’s zoning ordinance since it “includes substantial space designated by the Building Department as living quarters” and issued a stop work order.  Rogers appealed the administrator’s opinion and, in April 2010, the Board of Appeals voted that the boathouse constructed should be “allowed as a compatible non-commercial recreational facility.”  The Board did place certain conditions on the property that included the removal of certain residential features (e.g. a tub, shower, and certain fixed kitchen appliances).

In trial court, the plaintiffs filed a request for summary disposition citing trespass and nuisance.  They argued that the plat dedication granted property owners an “irrevocable easement over the lakeway property and prevented defendant from exclusively using the portion of the lakeway in front of her lot by constructing a new structure that expanded the footprint of the old boathouse.”  Rogers also filed for summary disposition, arguing she owned the portion of the lakeway in front of her property and had the right to make use of it.  The court noted that a tacit agreement existed among land owners that 100% of the lakeway was not dedicated for common use since most property owners built boathouses for personal use.  History supported that claim since most of the structures had existed for over 40 years.  The court acknowledged that the expansion of this boathouse by several feet would not further prevent other land owners from using and enjoying the lakeway.  It determined the expansion should be allowed.

On appeal the Court of Appeals first noted that a use under a plat dedication must be within the scope of the dedication and must not interfere with the owners’ use and enjoyment of the property.  In this case, the plaintiffs interpreted the plat dedication to create a park for common use by the lot owners.  This Court of Appeals disagreed.  The dedication stated that “the drive, court, spring road and lakeway” were dedicated for common use.  When interpreting language like this, it is in accordance with precedent to treat word groups in a list as having related meanings.  The drive, court, and spring road are all used as right-of-ways (access) for lot owners to travel to, from, and within the plat, not as a park (which implied open space without obstructions).  The Court stated that the lakeway is to be considered similar; i.e., as a right-of-way.  The Court further noted that the term “lakeway” suggests it should be used as a right-of-way rather than a park (since the word “way” is found within the term.)

Subsequently, the Court determined that “the scope of the dedication created an easement within the lakeway for common use of lot owners of the land as a right-of-way that allows lot owners to use the lakeway in the same manner as the drive, court, and spring road.”  Since Crystal Drive, which runs through the lakeway, satisfies the purpose of a right-of-way providing access, there is no need to prohibit obstructions such as boathouses from the lakeway.   The Court determined that the slightly larger boathouse would not prevent residents from using and enjoying the lakeway for its purpose as right-of-way any more so than the previous boathouse did.  Thus, it affirmed the trial court’s decision.

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.

Iowa C.A. adjudicates easement rights of Mississippi River frontage owners

by Gary Taylor

Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)

Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.

In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River.  The property was bisected by railroad tracks.  Three years later they subdivided the property into 17 lots.  Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17.  The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:

“Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg’s Subdivision, to Mississippi River, and use of riverfront adjacent thereto.”

The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:

“Grantors further agree that no buildings of any type shall be allowed on said Lot 17.  Permission granted to grantees to install 3 docks for 3 boats on said Lot 17.” 

Eventually 3 docks were built with room for multiple boats.  Historically, both East Enders and West Enders docked boats at those docks. 

The Kelloggs sold Lot 17 in 1986.  In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability.  The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks.  The plan left two of the existing docks in place. 

Two East Enders brought suit to stop development of the new dock plan, arguing that only the  deeds of the East Enders granted permission for boat docks, and that the West Enders’ deeds granted no such rights.  The Court of Appeals disagreed.  The East Enders’ claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders’ easements rights.  The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected.  The granting of rights to East Enders to install “3 docks for three boats” did not give them rights to have their docks in a particular location on Lot 17.

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