BERRIEN CNTY BD OF RD COMMRS V DURWOOD D'AGOSTINO
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STATE OF MICHIGAN
COURT OF APPEALS
BERRIEN COUNTY BOARD OF ROAD
COMMISSIONERS,
UNPUBLISHED
July 1, 2010
Plaintiff-Appellee,
v
No. 288950
Berrien Circuit Court
LC No. 2007-000419-AV
DURWOOD D'AGOSTINO and WOODLAND
DEVELOPMENT LLC,
Defendants-Appellees.
Before: MARKEY, C.J., and ZAHRA, and GLEICHER, JJ.
PER CURIAM.
This is a trespass action involving a property dispute over a parcel of littoral land on
Singer Lake, which is located in Lake Township, Berrien County. This Court granted
defendants’ application for leave to appeal an order entered by the circuit court, which reversed a
portion of a district court order summarily declaring that defendants held fee title to the littoral
property, subject to the right-of-way of Singer Lake Road and the associated 66-foot strip of
property the fee title of which plaintiff holds. We reverse the circuit court’s order and reinstate
the decision of the district court.
I. BASIC FACTS AND PROCEEDINGS
Defendant D’Agostino is a principal in defendant Woodland Development, LLC.
Defendant Woodland Development is the record titleholder of a parcel of real property that
borders on Singer Lake. By warranty deed dated December 26, 1911, Chirlottie M. Field
granted Lake Township a fee interest in a 66-foot wide strip of land for highway purposes. The
1911 warranty deed given by Field to Lake Township conveys:
A strip of land for highway, situated in E. ½ of Sec. 13 town 6, South of
Range 19 West, all in Township of Lake County of Berrien & State of Mich. Said
Highway to be 66 ft. wide-33 ft. each side of the following described center line.
Said Center line commencing at a point on W. line of E. ½ of S.E. ¼ of
Sec. 13, 24 rds. S. of the N.W. corner of E. ½ of S.E. ¼ of Sec 13, Thence
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extending N. 63 degrees 15 minutes E. 400 ft. Thence N. 21 degrees, 30 minutes
E. 149 ft. Easterly line of road. [sic] is along Westerly side of Singer Lake.
This strip of land created by this deed runs through the property owned by defendants,
along the southern and then eastern boundaries of the parcel and along Singer Lake. The
location of this 66-foot strip essentially carves from defendants’ parcel a small irregular-shaped
piece of land that extends from the strip to the lake at southeast corner of defendants’ parcel.
The ownership of the northern portion of this irregular-shaped piece of land is at issue.
By resolution dated March 20, 1936, plaintiff took jurisdiction and control of the
roadway and accepted the roadway into the county road system, pursuant to the McNitt Act,
1931 PA 130. The roadway is commonly known as Singer Lake Road or the Singer Lake spur.
Plaintiff maintains a public access boat ramp on Singer Lake, near where the roadway terminates
on the northeastern portion of defendants’ property and where the 66-foot width of the roadway
extends into Singer Lake.
According to defendants, in late 2006 or early 2007, and in reliance on the 1911 deed,
plaintiff asserted ownership over a portion of the small irregular-shaped piece of land that
extends from the roadway to the lake at the southeast corner of defendants’ parcel. Defendants
disagreed with plaintiff’s interpretation of the 1911 deed and placed eight concrete barriers on
the lake side of the road to prevent trespass by plaintiff or the public.
By letter dated February 1, 2007, plaintiff informed defendants that the concrete barriers
encroached on a public highway and directed defendants to remove those barriers. The letter
provides in part:
It has been determined by the Board of County Road Commissioners of
the County of Berrien that your eight concrete barriers located approximately 33
feet easterly of the centerline of the pavement of Singer Lake Road constitutes an
encroachment . . . and, as such, all these objects MUST BE REMOVED. The
Easterly right of way line of Singer Lake Road in the vicinity of your concrete
barriers is the shoreline of Singer Lake. The right of way of Singer Lake Road in
the vicinity of the encroachment is approximately 100 feet wide. [Defendants’ Ex
3, p 1.]
Defendants refused to remove the barriers on the ground that the barriers were not located
in the right-of-way of the road, but on defendants’ property.
On March 21, 2007, plaintiff commenced the instant trespass action against defendants in
the Berrien District Court. Plaintiff moved for summary disposition pursuant to MCR
2.116(C)(9) and (10) and defendants sought summary disposition under MCR 2.116(I).
The district court entertained arguments on the motions. The central question raised by
the parties for resolution was: Did the 1911 deed reflect Field’s intent to convey to Lake
Township a right-of-way that extended to the edge of the lake? Plaintiff contended that the deed
did reflect such an intent. Defendants responded that the deed reflected only an intent to convey
a 66-foot-wide strip of land for roadway use.
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The district court granted summary disposition in favor of defendants, opining:
But again, perhaps the court even can decide this under MCR 2.116(C)(8)
or (9), since really both sides actually say that it is the language of the deed that
controls, as that is giving its clear meaning, and the case law and legal
commentaries, treatises, that tell us how to interpret the language used in a deed to
determine what in fact the intent of the grantor was.
The court notes that the deed does not talk about public access to the lake.
The deed talks about highway, even though it uses terms – the term fee simple.
It does not in any point say to the water’s edge. It does not say. It does
not say to the lake. It does not use any of this language that is used in the case –
the cases cited by the plaintiffs, for the proposition that the court should interpret
this as language saying to the lake, or to the water. It doesn’t say that.
It says, a strip of land for highway – and I’m going to only read the
pertinent part – a strip of land for highway, said highway to be 66 feet wide, dash,
33 feet each side of the following described centerline.
And then we have the meets and bounds descriptions of the centerline,
which is reflected in the diagram that both counsel have represented to the court
as being accurate based upon the survey, and then concluding easterly line of road
is along westerly side of Singer Lake.
It doesn’t say to Singer Lake. It does not say to the water. It does not say
to the edge of the water or any language that would indicate that the whole
purpose of this was to provide public access all along that length of highway.
And based upon the authority cited by both sides, the court finds that this
is not littoral land and is instead land along side the lake.
And for that reason, I think that the defendant has the better argument. I
think that based upon cases such as Michigan Department of Natural Resources v
Carmody Lottie Real Estate, 472 Mich 359 at 370, talking about the court needs
to take the plain language of the deed for purpose of giving affect to the parties
intent as manifested in the language in the instrument.
And the language of the deed unambiguously conveys the strip of land for
a 66 foot wide highway extending 33 feet on either line of a particularly described
centerline, of the plain and ordinary meaning of the word along would not
necessarily be apparent to the reader of the deed as meaning terminating at the
lake or going up to the lake or down to the water.
And so just using the plain Webster’s new universal unabridged dictionary
second edition definition, along indicates that it is a preposition meaning, quote,
“by the length of, by the side of, as the ship sailed along the coast.”
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As indicated in the Thies[ v Holland, 424 Mich. 282, 293, 380 N.W.2d
463 (1985)] case involving a roadway, which terminates at the edge of a body of
water, those cases are treated differently than those involving a roadway, which
runs parallel to the shore.
As in Meridian Township[ v Palmer, 279 Mich 586; 273 NW2d 277
(1937)], the evidence presented by the parties does not demonstrate that the public
had any interest beyond an easement of passage over the 66 foot strip constituting
the rose – the road.
Because I find that the evidence indicates that there is no genuine issue of
material fact that the disputed area is not included within the public roadway, and
that defendants are therefore not obstructing a public roadway as alleged in
plaintiff’s complaint, the court is granting summary disposition in favor of the
defendant.
Plaintiff appealed the district court’s order to the Berrien Circuit Court. After arguments
were presented,1 the circuit court reversed the district court’s determination that defendants held
fee title to the littoral property and remanded the matter for entry of an order recognizing
plaintiff’s ownership of the littoral land. The circuit court did so on the following rationale:
Plaintiff appeals from an order granting summary disposition in
Defendant’s favor. In dispute is a warranty deed granted, in fee, in 1911. The
dispute principally concerns whether said deed conveys littoral land, and,
therefore concerns who holds title to a small sliver of land along Singer Lake.
The deed provides a metes and bounds description for a “strip of land for highway
. . . .” The description of the land conveyed concludes with the following:
“Easterly line of road if along Westerly side of Singer Lake.”
Presently there is a narrow strip of land between the measured easterly
side line of the 33 feet from center line description and the westerly side of the
waters edge of Singer Lake. Defendant asserts littoral land was never conveyed
and claims title to said narrow strip. Plaintiff asserts that littoral land was
conveyed and that the narrow strip is the result of the shoreline’s subsequent
recession.
The District Court, which granted summary disposition, in part, to both
Plaintiff and Defendant, (defendant brings no appeal) made no specific finding in
the order that entered as to whether the deed in issue was ambiguous or
unambiguous. The presumption taken by this Court from a reading of the Order
entered is that the Trial Court found the deed unambiguous (a reading of the
1
After conducting a hearing, the initial circuit court judge disqualified himself. The subsequent
circuit court judge however listened to the recording and entertained additional arguments at a
later hearing.
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transcript from the hearing of October 23, 2007, at page 43-44, supports such).
The Trial Court Order states, in pertinent part:
“That the phrase contained in the above-referenced deed “Easterly
line of road, is along Westerly side of Singer Lake” is for reference
purposes and does not grant any rights or ownership interest to
Plaintiff or Plaintiff’s predecessors in title to any property located
between the Easterly side of the 66 foot strip of land described in
Paragraph 1 above and the Westerly shore of Singer Lake.”
Said finding/order presupposes that the land conveyed in 1911, in fee, was not
littoral land. Such finding is not supported by the record before the Trial Court,
which heard the matter, on cross motions for summary disposition. If anything
said “reference” is not in regard to the road itself, but is in reference to the
Easterly line of road . . . .” (Emphasis added by circuit court).
“In Michigan the law is clear that where property abuts a shoreline, that
shoreline * * * is the boundary of the property notwithstanding its subsequently
advancement or recession.” Cutliff v Densmore, 354 Mich 586, p 590[; 93 NW2d
307)] (1958).
***
The lower court herein did not find the subject deed to be ambiguous. Nor
was there any finding that “a mistake exists.” This Court, in regard to both,
concurs. There is no doubt as to the meaning of the instrument. In Brucker v
McKinley Transport (On Rem[and])[,] 225 Mich App 442, p 448[; 571 NW2 548]
(1997), it was stated that, “If the contractual language is clear and unambiguous,
its meaning is a question of law.” In Gawrylak v Cowie, 350 Mich 679, p 683[;
86 NW2d 809] (1957), the court, quoting from 26 CJS, Deeds, as follows: “In
other words, it is the duty of the court to construe a deed as it is written, and if a
deed is clear and unambiguous, it is to be given effect according to its language,
for the intention and understanding of the parties must be deemed to be that which
the writing declares. The meaning of the words used, and not what the parties
may have intended by such language, is controlling.” In Klais v Danowski, 373
Mich 263, p 267[; 129 NW2d 414] (1964) it is stated that, “Where that lake
border then was, except as it may be ascertained from the description . . . .”
(Emphasis added by circuit court).
The lower court found the disputed language in the deed to be “for
reference purpose . . . .” Impliedly the lower court found such was a reference to
the general location of the road in relation to the general location of the lake. The
lower court erred in this regard. As stated in Gawrylak[ v Cowie, 350 Mich 679;
86 NW2d 809 (1957)] . . . “the . . . understanding of the parties must be deemed to
be that which the writing declares.” The subject language is in fact a specific
reference regarding the Easterly line of the road being along the Westerly side of
Singer Lake. Such evidencing, unambiguously, that the parties understanding
was that the subjected deeded land was in fact littoral land.
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Most telling is the parties’ reference in the deed not to the road, generally,
but specifically to the Easterly line of the road. Such does not describe a second
measurement so as to find the Easterly side of the road – but, instead, to convey
the parties understanding of the fact that such is littoral land. In Negaunee Iron
Co v Iron Cliffs Co, 134 Mich 264, p 279[; 96 NW2d 468)] (1903) the Court
stated, “Deeds are contracts, and, when Courts can ascertain from the deed itself
the intent of the grantor, the deed will be construed so as to give that intent effect .
. . .” In Bauman v Barendgrept, 251 Mich 66, p 69[; 699 NW2d 272] (1930) it
was stated that, “It is a settled rule in this State that, where there is no reservation
of them, riparian rights attach to lots bounded by natural watercourses.” See also
DNR v Carmody-Lahti, 472 Mich 359, p 370[; 699 NW2d 272] (2005).
However, consideration is also necessary as to the words “along” and
“side”. The Trial Court found that such disputed land was “land along side of the
lake”. (Lower Court transcript at p. 43) The Lower Court also stated that, “the
word along would not necessarily be apparent to the reader of the deed as
terminating at the late or going up to the lake, or down to the water.” (Lower
Court transcript at p. 49) The Lower Court erred as to both findings.
The Lower Court essentially re-drafted the deed so that the disputed
sentence “reads”, “Easterly line of road is along land along Westerly side of
Singer Lake”.
In White v Knickerbocker Ice Co., 254 NY 152, p 160; 172 NE 452, p. 455
(1930), it is stated, “This meaning of the word “side”, as used in descriptions of
this nature finds support in Land & Land Assn v Beardsley, 182 AD 550; 170
NYS 523 (1918), where the words used were “along the road and North side of
the lake to a Birch.” The Court said, “This objection calls for a consideration of
the sense in which the word “side” is used. Assuming that the portion of the lake
in question is its Northerly side, that side would extend to the center of the lake.”
In White, [254 NY 152] at page 157, it is stated that, “The conclusion to be drawn
from these cases appears to be that if the description runs the title along dry land
such as the bank or shore, there is an express restriction which excludes or
reserves title in the river or pond; whereas, if the boundary touches the water or is
along the water or by the water, and not dry land, the presumption remains that
title is carried to the center of the river or pond.”
“The deed’s subject reference that the “Easterly line of road is along
Westerly side of Singer Lake” leads, both factually and legally, to the inescapable
conclusion, as a matter of law, that the grantor’s intent was that the subject line is
not along dry land, but touches the water–making it littoral.
II. STANDARD OF REVIEW
This Court reviews de novo a trial judge’s decision to grant or deny summary disposition.
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
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III. ANALYSIS
We conclude that the circuit court erred in interpreting the language of the 1911 deed and
reversal is required.
In Dept of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 370-371;
699 NW2d 272 (2005), our Supreme Court stated that:
An inquiry into the scope of the interest conferred by a deed such as that at
issue here necessarily focuses on the deed’s plain language, and is guided by the
following principles:
(1) In construing a deed of conveyance[,] the first and fundamental inquiry
must be the intent of the parties as expressed in the language thereof; (2) in
arriving at the intent of the parties as expressed in the instrument, consideration
must be given to the whole [of the deed] and to each and every part of it; (3) no
language in the instrument may be needlessly rejected as meaningless, but, if
possible, all the language of a deed must be harmonized and construed so as to
make all of it meaningful; (4) the only purpose of rules of construction of
conveyances is to enable the court to reach the probable intent of the parties when
it is not otherwise ascertainable.
These four principles stand for a relatively simple proposition: our objective in
interpreting a deed is to give effect to the parties intent as manifested in the
language of the instrument.
The instrument’s granting clauses are a natural starting point for discerning the
parties’ intent. . . . [Id. (citations omitted).]
The first clause of the conveyance found in the 1911 deed reveals that the grantor
conveyed to the township a “strip of land for highway.” The deed describes the width of the
strip of land as 66 feet and demarcates the boundaries of that 66-foot width as consisting of 33
feet on either side of an exact center line, which is identified as a “line commencing at a point on
W. line of E. ½ of S.E. ¼ of Sec. 13, 24 rds. S. of the N.W. corner of E. ½ of S.E. ¼ of Sec 13,
Thence extending N. 63 degrees 15 minutes E. 400 ft. Thence N. 21 degrees, 30 minutes E. 149
ft.” This language is clear and unambiguous and expresses the grantor’s intent to convey an
interest a 66-foot wide strip of land. There is nothing in this language that expressly or impliedly
indicates that the grantor intended to convey any interest beyond this strip or to the edge of
Singer Lake.
Plaintiff relies heavily on language found in the second clause of the conveyance
providing that the “Easterly line of road. [sic] is along Westerly side of Singer Lake.”
Specifically, plaintiff contends that:
[Plaintiff] argues that a person surveying the centerline of the Spur would
not need a ‘point of reference telling him or her that the Spur is ‘near’ of ‘by’
Singer Lake; the Lake would have been visible from any point along the Spur’s
centerline. Therefore, there had to be another purpose for the language.
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[Plaintiff] contends that the ‘along Singer Lake’ language was intended to extend
the Spur’s eastern line to the shore of Singer Lake—hence the use of language
‘Easterly line of road. [sic] is along Westerly side of Singer Lake.’
There is authority for the proposition that “[a] grant of land ‘along the shore of’ or by equivalent
words or other description, bounded by a natural watercourse carries title to the middle line of
the lake or stream,” essentially littoral rights. 25 Mich Civ Jur, Water § 54, citing Bauman v
Barendregt, 251 Mich 67, 231 NW 70 (1930) (disapproved of on other grounds by, Thompson v
Enz, 379 Mich 667, 154 NW2d 473 (1967)); see also Hartz v Detroit, Plymouth & Northville Rs,
153 Mich 337, 339; 116 NW 1084 (1908) (“Where the boundary of the land conveyed was
described as ‘east by the pond’ (an artificial one), it was held that the grantee took to the middle
of the original stream the same as if no pond existed.”) and Booker v Wever, 42 Mich App 368,
375-376; 202 NW2d 439 (1972) (“courses and distances in a description in a deed yield to
natural and ascertainable objects such as the shoreline of the lake.”)
However, in all of the above cases, the phrase to “along the” was the only description of
that particular boundary in the deeds. In this case, the more definitive description in the deed
would be contradicted by interpreting the “along Westerly side of Singer Lake” as a specific
boundary.
Thus, this Court must reconcile the phrase, “along Westerly side of Singer Lake” with the
deed language conveying the 66-foot-wide strip and the location of the strip of land as revealed
in the property survey. A court is to harmonize the provisions of a deed, not construe them in
such a manner as to render a significant portion of the deed a nullity. Carmody-Lahti Real
Estate, Inc, 472 Mich at 370. In our view, this reconciliation may only be accomplished by
reinforcing the grantor’s intent to convey nothing more that the 66-foot width. The reference to
the easterly line of the road can reasonably be viewed as nothing more than a reference to a
general location of the eastern edge of the road repeated in lay terminology. The general
reference tends to reinforce the notion that the conveyed strip of land running northeast across
the southern portion of the subservient parcel does not dead-end at the water’s edge of Singer
Lake, but instead, bends as would an elbow of an arm and proceeds parallel to the lake at a
sharper north-northeast angle. Had the grantor intended the easterly line of the road to extend to
the water’s edge, the grantor would have either omitted the reference to the road’s eastern width
and/or expressly extended the southern line of the strip “to the lake” or “to the water’s edge” and
then the eastern line of the strip along the lake to the north-northeast. She did not do so. The
southern line of the road terminates well short of the water’s edge. Consequently, the eastern
line of the strip commences short of the water’s edge. To construe the language regarding the
easterly line of the road as conveying an interest to the water’s edge, as the circuit court did,
would be to construe the language in a manner not intended on the face of the deed and to render
completely null the language of the deed granting a 66-feet wide strip as measured 33 feet on
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either side of a specified and exact center line. The circuit court decision granting plaintiff
summary disposition should be reversed.
Reversed and remanded for reinstatement of the district court’s decision. Defendants
may tax costs. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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