IN RE LAKE LEVEL FOR BAMBI LAKE

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STATE OF MICHIGAN COURT OF APPEALS IN RE LAKE LEVEL FOR BAMBI LAKE. SHIAWASSEE COUNTY, UNPUBLISHED September 28, 2004 Petitioner-Appellee, v No. 244794 Shiawassee Circuit Court LC No. 00-005032-CZ BAMBI LAKE ASSOCIATION, Respondent-Appellee, and WILLIAM R. YEE, Respondent-Appellant. Before: Hoekstra, P.J., and Cooper and Kelly, JJ. PER CURIAM. Respondent Dr. Stephen Yee appeals as of right in propria persona from a bench trial judgment setting the level of Bambi Lake, on which he resides, at 800.67 feet above sea level pursuant to a petition filed by the Shiawassee County Board of Commissioners (the “county board”) under Part 307 of the Natural Resources and Environmental Protection Act (NREPA).1 We affirm. Beginning in 1994, the level of Bambi Lake allegedly began to rise, flooding portions of Dr. Yee’s property and causing damage to his basement floor. Dr. Yee filed three separate suits seeking monetary damages for trespass and injunctive relief to require the Bambi Lake Association (the “association”) to maintain the surface level of Bambi Lake at 799 feet above sea level and prevent the county board from filing a petition pursuant to Part 307 of the NREPA to establish the lake’s level over that elevation.2 A history of this dispute appears in Yee v 1 MCL 324.30701 et seq. 2 Dr. Yee filed his suits in the Shiawassee Circuit Court. After the assigned judge recused (continued…) -1- Shiawassee Co Bd of Comm’rs.3 However, we note that the trial court dismissed Dr. Yee’s suits because the Cummings Dam construction permit issued pursuant to the dam construction approval act (DCAA) did not establish a legally enforceable lake surface level and because the trial court lacked subject matter jurisdiction to establish the normal level of Bambi Lake as Part 307 of the NREPA required the action to be initiated by the county board.4 Following this dismissal, the association petitioned the county board to initiate an action to establish the normal surface level of Bambi Lake. The county board commissioned the Spicer Group to conduct a preliminary engineering study to determine the historic level of the lake and examine the effects of continuing to maintain the lake at that level. The report indicated that Bambi Lake would benefit from being maintained at its historic surface level of 800.67 feet above sea level. Accordingly, the county attorney filed a petition on June 13, 2000, with the Shiawassee Circuit Court to establish the normal level of Bambi Lake at 800.67 feet.5 Dr. Yee was permitted to intervene in the action. Following a five-day bench trial in June of 2002, held two weeks after this Court issued its opinion in Yee, the trial court established the level of Bambi Lake consistent with the county board’s petition. This appeal followed. I. Subject Matter Jurisdiction Dr. Yee challenges the trial court’s subject matter jurisdiction to establish the normal level of Bambi Lake, which is private, under Part 307 of the NREPA, as he claims the statute applies only to public lakes. Dr. Yee also contends that applying the statute to a private lake amounts to an unconstitutional taking of private property for a nonpublic purpose. We review questions of subject matter jurisdiction de novo.6 We also review questions of constitutional law de novo.7 In Yee, this Court rejected Dr. Yee’s identical contentions, finding that the definition of “inland lake” in MCL 324.30701(f) does not distinguish between public and private lakes.8 Furthermore, establishing the normal surface level of a private lake does not necessarily amount (…continued) himself, the State Court Administrative Office (SCAO) reassigned the cases to Judge Judith Fullerton of the Genesee Circuit Court. 3 Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379; 651 NW2d 756 (2002), lv den 468 Mich 852, cert den 124 S Ct 538; 157 L Ed 2d 409 (2003). This opinion resolved the consolidated appeals in Docket Nos. 226612, 226613, and 226614. 4 Id. at 386-387. 5 The assigned judge again recused himself and the case was reassigned to Judge Randy L. Tahvonen of the Shiawassee Circuit Court after Judge Fullerton rejected a SCAO assignment. Judge Tahvonen denied Dr. Yee’s motion to transfer this case to Judge Fullerton and this Court denied his motion to file an interlocutory appeal. In re Lake Level for Bambi Lake, unpublished order of the Court of Appeals, entered June 19, 2001 (Docket No. 233567). 6 Yee, supra at 393. 7 People v Hill, 257 Mich App 126, 149; 667 NW2d 78 (2003). 8 Yee, supra at 400-401. -2- to an unconstitutional taking of private property for a nonpublic purpose as the determination is made for the benefit of the public health, safety and welfare and the conservation of the state’s natural resources.9 Regardless of the fact that Dr. Yee’s application for leave to appeal to the Michigan Supreme Court was pending at the time of the lower court trial, the Shiawassee Circuit Court, as well as this Court, are bound by that published opinion.10 Therefore, we again reject Dr. Yee’s arguments. Furthermore, as the county board and the association properly brought the current action under the procedures outlined in Part 307 of the NREPA,11 we find that the trial court had subject matter jurisdiction to establish the normal level of Bambi Lake. MCL 324.30702(1) provides in pertinent part: The county board of a county in which an inland lake is located . . . shall within 45 days following receipt of a petition to the board of 2/3 of the owners of lands abutting the inland lake, initiate action to take the necessary steps to cause to be determined the normal level of the inland lake.[12] To facilitate the board’s decision to initiate this action, and the court’s ultimate determination, the county board may commission an engineering study to evaluate the effects of setting the lake level at a recommended level.13 Once the county board has determined that an action should be initiated to establish a normal lake level, it must direct the county attorney to file an action. The action should seek the establishment of a specific lake level and the creation of a special assessment district to maintain that level.14 Once a hearing on the matter is set, extensive publication is required to inform the public as the interests of all affected parties are relevant to the determination.15 Consistent with the statute and the dictates of Yee,16 two-thirds of the residents along Bambi Lake—the association—petitioned the county board to initiate this proceeding. The county board directed the drain commissioner to hire the Spicer Group to survey the lake and conduct a preliminary study considering the requisite factors in MCL 324.30707(4). The proper notice was published and a member of the public appeared at the trial and was allowed to testify. 9 Id. 10 MCR 7.215(C)(2). 11 See Yee, supra at 396, citing MCL 324.30702-.30704. 12 Id. at 396-397, quoting MCL 324.30702(1). 13 Id. at 397, citing MCL 324.30703(1). 14 Id., quoting MCL 324.30704(1). 15 MCL 324.30707. 16 See Yee, supra at 398. -3- Accordingly, the trial court properly determined that it had subject matter jurisdiction over the instant proceeding.17 II. Great Weight of the Evidence Dr. Yee contends that the trial court’s determination to set the normal level of Bambi Lake at 800.67 feet above sea level was against the great weight of the evidence. We review a claim that a verdict rendered after a bench trial is against the great weight of the evidence under the clearly erroneous standard.18 A trial court’s finding is clearly erroneous when this Court, after reviewing the entire record, is “left with the definite and firm conviction that a mistake has been made.”19 However, we defer to the trial court’s determination of witness credibility.20 Pursuant to MCL 324.30707, the trial court must consider specific factors in establishing the normal surface level of an inland lake. (4) In a determination of the normal level of an inland lake, the court shall consider all of the following: (a) Past lake level records, including the ordinary high-water mark and seasonal fluctuations. (b) The location of septic tanks, drain fields, sea walls, docks, and other pertinent physical features. (c) Government surveys and reports. (d) The hydrology of the watershed. (e) Downstream flow requirements and impacts on downstream riparians. (f) Fisheries and wildlife habitat protection and enhancement. (g) Upstream drainage. (h) Rights of riparians. 17 We decline to review Dr. Yee’s claimed errors in the previous cases before the Genesee Circuit Court and in the previous published opinion of this Court. We may only consider the case on which this appeal is based—the 2000 petition before the Shiawassee Circuit Court. Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001), citing MCR 7.203(A)(1), People v Anderson, 209 Mich App 527, 538; 531 NW2d 780 (1995). Furthermore, we may not second-guess the Michigan Supreme Court’s denial of Dr. Yee’s application for leave to appeal the prior opinion of this Court. MCR 7.301(A)(2). 18 Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637, 651; 662 NW2d 424 (2003). 19 Id. at 652. 20 Id. -4- (i) Testimony and evidence offered by all interested persons. (j) Other pertinent facts and circumstances.[21] From a review of the entire record, it is clear that the trial court properly determined that the normal surface level of Bambi Lake should be set at 800.67 feet above sea level. The trial court determined from the deposition of Louis Homola and the testimony of residents on Bambi Lake that the lake’s surface level had been maintained with all the stop logs placed in the weir structure since 1970. Although various government inspections and surveys calculated differing elevations for the weir structure, the Spicer Group’s calculation was comparable to those numbers.22 Accordingly, the record evidence supports the trial court’s determination that the historic surface level of Bambi Lake was 800.67 feet above sea level. Furthermore, Dr. Yee failed to present any evidence to refute expert testimony that the watershed environment, wildlife, and upstream and downstream owners would benefit from maintaining Bambi Lake at this elevation. Although Dr. Yee presented extensive photographic evidence that the lake’s level rises after a heavy rain, he failed to demonstrate that groundwater rose to a detrimental level or that an increased lake level actually caused the alleged damage to his property. III. Motion to Transfer Dr. Yee contends that the trial court improperly denied his motion to transfer the county board’s petition to Judge Fullerton of the Genesee Circuit Court pursuant to MCR 8.111(D) as the petition arose from the same transaction or occurrence as his previously dismissed suits. Dr. Yee’s contention represents a question of law which we review de novo.23 MCR 8.111 governs the assignment of cases. MCR 8.111(D) controls the assignment of cases arising out of the same transaction or occurrence as follows: Subject to subrule 8.110(C), (1) if one of two or more actions arising out of the same transaction or occurrence has been assigned to a judge, the other actions must be assigned to that judge; 21 MCL 324.30707(4). 22 Although the original designs for the dam indicated that the elevation of the top of the weir structure was to be 799 feet above sea level, an inspection report produced in 1980 pursuant to the National Dam Safety Program found that the actual construction of the dam deviated from the plans with the top of the weir structure and stop logs at 800.5 feet above sea level. A report completed in 1998 set this elevation at 801.04 feet above sea level, and the Spicer Group study at 800.67 feet. 23 See People v Rich, 172 Mich App 494, 496; 432 NW2d 352 (1988). -5- (2) if an action arises out of the same transaction or occurrence as a civil action previously dismissed or transferred, the action must be assigned to the judge to whom the earlier action was assigned[.][24] To be categorized as arising from the same transaction or occurrence for purposes of MCR 8.111(D), two cases must arise from “identical events leading to the other.”25 Although two cases include similar legal issues, it does not necessarily mean that they arose out of the same transaction.26 This case does not arise from the same transaction or occurrence as Dr. Yee’s previous actions before the Genesee Circuit Court. In the previous cases, Dr. Yee sought monetary damages for trespass and property damage and injunctive relief to prevent the level of Bambi Lake from being raised over 799 feet. The events compelling Dr. Yee to file suit were the alleged raising of the lake level, improper control of the weir structure and flooding of his property. The current action was the only action properly brought by the county board to establish the normal level of Bambi Lake pursuant to statute. The event leading to the action was the petition of the association to set a normal lake level. Furthermore, even if we were to find that these actions arose from the same transaction or occurrence, Dr. Yee failed to allege that he was prejudiced as a result of Judge Tahvonen hearing the current matter.27 Accordingly, relief would be unwarranted. IV. Property Rights by Deed Dr. Yee claims that he took a property interest by deed to enjoy dry land to the meander line appearing on survey maps, which places the level of Bambi Lake at 799 feet above sea level. Dr. Yee’s warranty deed describes the eastern border of his property as a “meander line,” and indicates that the line is “for descriptive purposes only.” We review the language of a contract or deed de novo to determine if it is ambiguous.28 A deed describing a boundary as the water’s edge is ambiguous as the named boundary fluctuates with the water level.29 When the terms of a contract or deed are ambiguous, the trier of fact must determine the intentions of the parties upon entering into the contract.30 24 MCR 8.111(D)(1)-(2). 25 Ross v Onyx Oil & Gas Corp, 128 Mich App 660, 669; 341 NW2d 783 (1983), quoting Armco Steel Corp v Dep’t of Treasury, 111 Mich App 426, 437; 315 NW2d 158 (1981). 26 Id. 27 People v McCline, 442 Mich 127, 133-134; 499 NW2d 341 (1993). 28 Port Huron Educ Ass’n v Port Huron Area School Dist, 452 Mich 309, 323; 550 NW2d 228 (1996). 29 Weimer v Gilbert, 7 Mich App 207, 212; 151 NW2d 348 (1967). 30 UAW-GM Human Resources Ctr v KSL Recreation Corp, 228 Mich App 486, 491; 597 NW2d 411 (1998). -6- Dr. Yee contends that Mr. Cummings, in conveying the parcel to his predecessor in interest, intended the property to run to the meander line. However, “[m]eander lines were established by surveyors to determine acreage and value of property, not to determine a strict boundary.”31 Although a map may include the location of a meander line, this line does not define a riparian owner’s property rights. Rather, the “‘title of the riparian owner follows the shore line under what has been graphically called “a moveable freehold”’”32 As a riparian owner with “a moveable freehold,” Dr. Yee’s title extends to the shore line, which is higher after rainfall and lower during drought. Accordingly, Dr. Yee does not have a right by deed to have the level of Bambi Lake set at 799 feet above sea level. V. Dam Construction Permit Dr. Yee asserts that the dam construction permit granted to Forrest Cummings in 1970 sets the legal level of Bambi Lake at 799 feet above sea level. Whether permits issued under the DCAA can establish a normal lake level is an issue of statutory construction that we review de novo.33 However, this Court already rejected Dr. Yee’s identical contention in Yee as follows: [I]t is clear that the provisions of the act were intended simply to provide for a method of regulating the construction of dams in this state in order to ensure their structural integrity. Although this goal would necessarily require consideration and approval of proposed impoundment surface areas and levels, nothing in the act indicates that these were intended to establish an enforceable lake level.[34] That the Legislature did not intend for the DCAA to create legally enforceable lake surface levels is further shown by the amendment of the act in July of 1970 “to require successful permit applicants to petition for the establishment of a legal lake level under the Inland Lake Level Act of 1961 (ILLA).”35 Once again, we are bound by the precedent set in this Court’s previous opinion and Dr. Yee is barred from relitigating this issue. However, the trial court did consider the permit and application as evidence of the historical level of Bambi Lake. The trial court properly considered the dam permit, along with the other calculations of the lake’s surface elevation in government inspections and surveys, and found the permit to be inconclusive regarding the actual normal level of Bambi Lake. 31 Glass v Goeckel, 262 Mich App 29, 34 n 3; 683 NW2d 719 (2004), citing Whitaker v McBride, 197 US 510, 512; 25 S Ct 530; 49 L Ed 857 (1905). 32 Peterman v Dep’t of Natural Resources, 446 Mich 177, 192; 521 NW2d 499 (1994), quoting Hilt v Weber, 252 Mich 198, 219; 233 NW 159 (1930). 33 Yee, supra at 393. 34 Id. at 394. 35 Id. at 394-395, quoting MCL 281.61 et seq., repealed by 1994 PA 451, § 90103. -7- VI. Right to Jury Trial Dr. Yee claims that the county board, by seeking to set the level of Bambi Lake at 800.67 feet above sea level, knew that a portion of his property would be flooded. He contends that the county board was required to initiate condemnation proceedings under these circumstances, and by failing to do so, the county board denied Dr. Yee his statutory right to a jury trial under Part 307 of the NREPA. Whether Dr. Yee had a right to a jury trial pursuant to Part 307 of the NREPA is a question of law which we review de novo.36 In civil cases, the right to a jury trial is permissive only.37 The Michigan Constitution provides that “The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.”38 As the right to jury trial remains, parties only have this right in circumstances where it existed prior to 1963.39 Part 307 of the NREPA is silent regarding a party’s general right to a jury trial in a proceeding to determine the normal level of an inland lake. However, if a county board determines that its petition will require the condemnation of private property, then the county board must proceed consistent with the uniform condemnation procedures act (UCPA).40 Pursuant to UCPA, the court reviews the necessity of condemning property,41 but the aggrieved party has the right to jury trial on the issue of just compensation.42 The county board was not required to condemn a portion of Dr. Yee’s property, however, in filing this petition. The petition sought to set the level of Bambi Lake at 800.67 feet above sea level, the historic level of the lake. As the actual level of the lake was to remain where it historically had been, Dr. Yee would not lose additional property in the process. Dr. Yee was not entitled to a jury trial under the statute’s explicit mandate to follow the UCPA. The question remaining is whether he would be entitled to a jury trial in an action to set 36 Anzaldua v Band, 457 Mich 530, 533; 578 NW2d 306 (1998). 37 Marshall Lasser, PC v George, 252 Mich App 104, 106; 661 NW2d 158 (2002). 38 Const 1963, art 1, § 14 (emphasis added). 39 Phillips v Mirac, Inc, 470 Mich 415, 425; ___ NW2d ___ (2004); Anzaldua v Band, 216 Mich App 561, 564; 550 NW2d 554 (1996), aff’d 457 Mich 530 (1998). 40 MCL 324.30710. See also MCL 213.51-.77 41 Kalamazoo v KTS Indus, Inc, ___ Mich App ___; ___ NW2d ___ (Docket No. 251199, issued July 8, 2004), slip op at 9-10. 42 MCL 213.54. -8- a normal lake level prior to 1963. However, Dr. Yee failed to argue or brief this position, and therefore, it is deemed abandoned.43 Affirmed. /s/ Joel P. Hoekstra /s/ Jessica R. Cooper /s/ Kirsten Frank Kelly 43 Yee, supra at 406. Had Dr. Yee properly argued this issue, we would find that he retained no right to a jury trial for this cause of action. When the Legislature creates a cause of action without indicating if it contains the right to a jury trial, this Court must determine if a parallel common-law action existed possessing the right to a jury trial prior to 1963. The right to a jury trial existed in legal actions, but not in equitable actions. Furthermore, the right does not exist in actions that did not exist before the creation of the statute, as statutory is the opposite of common-law by definition. The right to seek the establishment of a normal lake level did not exist at common-law; it was first created with the enactment of 1911 PA 202. As this cause of action is a statutory creation without parallel in the common-law, the statute itself must create the right to a jury trial. Part 307 of the NREPA is silent on the issue, and the courts may not read a right into a statute which its plain language does not create. -9-

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