LAKEWOOD HILLS V JADE PIG VENTURES-EGR LLC
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STATE OF MICHIGAN
COURT OF APPEALS
LAKEWOOD HILLS,
UNPUBLISHED
March 29, 2007
Plaintiff-Appellee,
v
JADE PIG VENTURES–EGR, L.L.C., and JADE
PIG VENTURES–RAMONA, L.L.C.,
No. 271197
Kent Circuit Court
LC No. 04-012561-CH
Defendants-Appellants.
Before: Sawyer, P.J., and Neff and White, JJ.
WHITE, J. (concurring in part and dissenting in part.)
I agree that the circuit court erred in concluding that the easement terminated upon the
demolition of the shopping center. I also agree that the uses deemed permitted by the majority
are within the grant. I write separately because I do not agree with some of the majority’s
additional observations.
Plaintiff commenced this action asserting that the easement had terminated because it was
no longer being used for ingress and egress to and from the Jacobson’s shopping center. Also at
issue was whether, if the easement had not terminated, the proposed uses for the rezoned
property are permitted under the easement, and whether if permitted, the uses would overburden
the easement. The circuit court answered the first question in the affirmative and did not reach
the second and third questions. The court erred in concluding that the easement had terminated.
The easement is broad in its grant of ingress and egress to and from the parcel forever. At best,
the easement is limited to ingress and egress to and from a shopping center. Because “shopping
center” is not limited to the shopping center originally built for Jacobson’s, the easement did not
terminate due to its purpose ceasing to exist, being abandoned or being impossible to
accomplish. Nor would a misuse of the easement result in its automatic termination. Rather, an
injunction limiting its use to its permissible scope would, if possible, be appropriate.
I would remand to the circuit court to determine the scope of the permissible use under
the easement. Although the parties both asserted that the easement is unambiguous, they argued
for differing interpretations. I conclude that the easement is ambiguous with regard to its scope.
The grant is broad, providing for a driveway over plaintiff’s premises for ingress and egress
between Lakeside Drive and defendant’s parcel, forever. The limiting language shows that the
parties to the easement agreement contemplated that a shopping center would be built on
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defendant’s parcel. The limiting language further states that the easement is “for pedestrian and
vehicular traffic to and from Second Party’s Shopping Center only. No through traffic shall be
allowed.” Plaintiff asserts that the plain language provides that the easement can only be used to
access and leave the shopping center built on defendant’s property, and that it does not allow
ingress and egress to and from any other structures on, or portion of, the Jacobson’s parcel.
Defendant argues that the limiting language is clearly focused on the use of the easement -- for
ingress and egress to the contemplated shopping center only, and not for through traffic -- and
that it was not intended to limit ingress and egress to and from other structures that might later be
built on the property. Both interpretations are reasonable. Under the circumstances, I would
remand with instructions to allow testimony, and to address the second and third issues as
identified by the circuit court in its opinion.
/s/ Helene N. White
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