RICK KLEINER V ROSCOMMON TWP
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STATE OF MICHIGAN
COURT OF APPEALS
RICK KLEINER and MIKE BOMMARITO,
UNPUBLISHED
February 12, 2004
Plaintiffs-Appellees,
v
No. 244053
Roscommon Circuit Court
LC No. 01-722794-CH
MICHAEL WACHOWICZ,
Defendant-Appellant
and
ROSCOMMON TOWNSHIP, ROSCOMMON
COUNTY ROAD COMMISSION,
DEPARTMENT OF NATURAL RESOURCES,
ROBERT RIEDEL, JOHN SOPER, JACQUELYN
REA and JAMES FAIRCLOTH,
Defendants.
RICK KLEINER and MIKE BOMMARITO,
Plaintiffs-Appellees,
v
No. 244328
Roscommon Circuit Court
LC No. 01-722794-CH
JAMES FAIRCLOTH,
Defendant-Appellant,
and
ROSCOMMON TOWNSHIP, ROSCOMMON
COUNTY ROAD COMMISSION,
DEPARTMENT OF NATURAL RESOURCES,
ROBERT RIEDEL, JOHN SOPER, JACQUELYN
REA and MICHAEL WACHOWICZ,
Defendants.
Before: Schuette, P.J., and Meter and Owens, JJ.
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PER CURIAM.
Plaintiffs’ motion for summary disposition under MCR 2.116(C)(9) was treated as a
motion under MCR 2.116(C)(10) and was granted. In Docket No. 244053, defendant Michael
Wachowicz appeals as of right. In Docket No. 244328, defendant James Faircloth appeals as of
right. This Court consolidated the appeals on November 27, 2002. We affirm. These appeals
are being decided without oral argument pursuant to MCR 7.214(E).
This case concerns the Hubbard Street and Wells Street road ends in the Houghton
Heights Subdivision. Plaintiffs own lakefront property adjacent to these streets and objected to
defendant’s use of the road end extensions into the lake to erect docks and permanent mooring
structures, including boat hoists, and their use of the road ends for recreational activities,
including picnicking, sunbathing and lounging. Based on Jacobs v Lyon Twp (After Remand),
199 Mich App 667; 502 NW2d 382 (1993), the trial court held that these uses exceeded the
scope of the dedication of the plat, which was “to the use of the public.”
Appellants assert (1) that Jacobs was wrongly decide; (2) that it was incumbent upon
plaintiffs to show that the platter’s intent, when dedicating a street to “the use of the public,” was
to forbid the complained of uses; and (3) that the trial court erred in holding that it was
incumbent upon defendants to show that the platter in this case intended something different than
the platter at issue in Jacobs. These issues were addressed in Higgins Lake Property Ass’n v
Gerrish Twp, 255 Mich App 83; 662 NW2d 387 (2003). There, this Court held that the
dedicator’s intent in Jacobs could not be imputed to all dedicators, that a factual determination of
the dedicator’s intent is required in each case, but that factual similarities with Jacobs would not
be ignored. The Court discerned no difference between the dedication in Jacobs and the
dedication in Higgins Lake, and held that given the presumption that the dedication was for
access to the water only, the defendants would bear the burden of establishing a contrary intent.
In this case, defendants did not meet this burden. Therefore, summary disposition was properly
granted to plaintiffs.
Affirmed.
/s/ Bill Schuette
/s/ Patrick M. Meter
/s/ Donald S. Owens
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