DANIEL J IRVIN V VILLE-DU-LAC TOWNHOUSES CONDOMINIUM ASSOCIATION
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL J. IRVIN and CHARLENE B. IRVIN,
UNPUBLISHED
September 14, 2010
Plaintiffs-Appellants,
v
No. 291534
Macomb Circuit Court
LC No. 2007-003490-CH
VILLE-DU-LAC TOWNHOUSES
CONDOMINIUM ASSOCIATION,
Defendant-Appellee.
Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ.
PER CURIAM.
This property dispute involves the existence of an easement over roads for purposes of
ingress and egress in defendant Ville-Du-Lac Townhouses Condominium Association’s (the
Association) condominium complex. Plaintiffs Daniel and Charlene Irvin appeal as of right the
trial court’s judgment of no cause of action. We reverse and remand for entry of judgment for
the Irvins.
I. BASIC FACTS
This property dispute involves the Irvins’ undeveloped parcel of lakefront property
located in New Baltimore, Michigan. Lake St. Clair abuts the Irvins’ property to the South and
East. Another parcel of land, which the Irvins also own and on which a single family home sits,
abuts the Irvins’ property to the West. Properties that the Association and the Anchor Bay
Apartment Complex own border the Irvins’ property to the North. The Association’s property
abuts Jefferson Avenue, a public highway, at its northern border. Other than water access, the
Irvins’ property is accessible via the Association’s property, the Anchor Bay property, or the
property located to the West.
Hyman Gordon obtained the large plat of property between Lake St. Clair and Jefferson
Avenue in New Baltimore via a warranty deed in 1971. In 1973, Gordon planned to construct 40
condominium units on the northern portion of this property. Gordon recorded a master deed and
split the land into three parcels: the northern, front lot facing Jefferson Avenue, where he would
build the condos; the western lakefront lot; and the back lakefront lot. (The western lakefront lot
and the back lakefront lot, again, are currently the Irvins’ properties).
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The Master Deed provides in relevant part as follows:
10. The following easements are hereby created:
***
(c) There shall be an easement for ingress and egress over the roadways in the
condominium and also a twenty-foot wide easement for utilities along the
southwest perimeter of the condominium, said easements being for the benefit of
the owners, and their successors and assigns, of the land described in paragraph
3[1] above.[2]
Shortly after Gordon split the properties pursuant to the Master Deed, he conveyed the
parcels to the Michigan Condominium Corporation (MCC) via warranty deed subject to
“[e]asements and restrictions of record.” In 1975, the MCC conveyed both the western lakefront
lot and the back lakefront lot back to Gordon via quitclaim deed.3 In 1978, Gordon conveyed the
western lakefront lot and the back lakefront lot to the Archdiocese of Detroit via a warranty deed
“subject to easements of record.” The Archdiocese transferred title to Canton Homes, LLC, in
March 2006, via a warranty deed. Immediately after obtaining legal title, Canton Homes
conveyed the properties to the Irvins via a covenant deed.
In August 2007, the Irvins filed a complaint for declaratory judgment and other relief,
alleging that the Association interfered with their right to utilize an express easement over the
Association’s property for ingress and egress to the back lakefront lot. The Irvins wanted to
develop the back lakefront lot by placing a five-unit condominium development on it. The Irvins
alleged that they had a right to utilize the easement over the Association’s property to access
Jefferson Avenue. Specifically, the Irvins alleged that Gordon’s original Master Deed created an
express easement for the benefit of the owners and assigns of the back lakefront lot. The Irvins
asserted that the property’s chain of title reserved their right to the easement. The Irvins attached
an undated survey depicting the Irvins’ “property and the easement over [the Association’s]
property which were conveyed by the Archdiocese Deed.”
1
Paragraph 3 apparently contains a metes and bounds description of the three lots described
supra. Defendant does not dispute that plaintiffs’ two lakefront parcels of land constitute land
described in Paragraph 3 of the Master Deed.
2
Emphasis added.
3
The quitclaim deed provided that the transfer included:
easement of access, ingrees [sic] and egress to Jefferson Road, said easement shall
permit ingree [sic] and egress upon and over the existing road from Jefferson
Avenue to the above described land as set forth in [the Master Deed] . . . .
Together with any additional land if any is required to permit access from
Jefferson Avenue to said existing roadway and from existing roadway to the land
conveyed.
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The Association denied that the Master Deed created an easement appurtenant to the
Irvins’ property. The Association claimed that the Irvins did not have easement rights because
the condominium subdivision plan that Gordon attached to the Master Deed violated relevant
regulatory rules because it did not refer to any ingress/egress easement burdening the
condominium property. The Association acknowledged that the Master Deed created an
easement but argued that the easement was reserved “only for the purpose of expansion” of the
condominium development and that Gordon showed no intent to reserve an easement in favor of
an unrelated third-party. The Association noted that Gordon abandoned any plans for future
development when he conveyed the properties to the Archdiocese.
The Association also argued that the Irvins were not entitled to relief on the theory of
easement by necessity because the back lakefront lot was not landlocked; according to the
Association, the Irvins could access Jefferson Avenue via the western waterfront property, which
the Irvins also owned. Additionally, the Association argued that any easement reserved in the
Master Deed was invalid because the deed did not state with specificity the metes and bounds of
the easement. The Association further argued that the transactions subsequent to the recording
of the Master Deed were irrelevant and did not create an easement. The Association also
objected to the survey that the Irvins attached to their complaint.
Following a two-day bench trial, the trial court denied the Irvins’ request for relief and
entered a judgment of no cause of action. The trial court held, in pertinent part, as follows:
In this matter, the Court finds the language contained in the Master Deed
fails to create an express easement. For the easement to be sufficient it needed to
be more specific in writing in order to manifest a clear intent to create a servitude
on [the Association’s] property. Further, even if an easement was created by this
language, [the Irvins] have failed to demonstrate the alleged easement was created
at the location they request. The language of the Master Deed at paragraph 10(c)
indicates an easement over the roadways; however, it is evident a roadway does
not connect the two parcels at issue in this matter.
The Irvins now appeal.
II. EXPRESS EASEMENT APPURTENANT
A. STANDARD OF REVIEW
The Irvins contend that the trial court erred in finding that the Master Deed failed to
create an express easement appurtenant to their property. The trial court’s determination whether
the Irvins held an easement over the Association’s property involves a question of law that we
review de novo.4
4
Minerva Partners, LTD v First Passage, LLC, 274 Mich App 207, 218; 731 NW2d 472 (2007).
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B. LEGAL STANDARDS
“Michigan courts recognize two types of easements: easements appurtenant and
easements in gross.”5 “An appurtenant easement attaches to the land and is incapable of
existence apart from the land to which it is annexed.”6 And, an easement appurtenant “may pass
with the benefited property when the property is transferred.”7 A property owner can create an
easement appurtenant by “express grant, by reservation or exception, or by covenant or
agreement.”8 With respect to an easement by reservation:
An easement may be created by an express reservation in a document of
conveyance, as when, at the time a parcel of property is conveyed by its owner,
the owner reserves an easement over it for himself. To create an express grant or
reservation of an easement, there must be language in the instrument of
conveyance manifesting a clear intent to create the easement. It is not necessary
that the party reserving the easement right use any particular words as long as
the intent to claim an easement is apparent and it is described sufficiently so that
the easement and the parcel of land to which the right is attached can be
determined, using parol evidence if necessary.[9]
“An inquiry into the scope of the [property] interest conferred by a deed . . . necessarily focuses
on the deed’s plain language[.]”10 “[O]ur objective in interpreting a deed is to give effect to the
parties’ intent as manifested in the language of the instrument.”11
C. APPLYING THE STANDARDS
Here, Gordon conveyed an interest in property via the Master Deed to the Association.
Therefore, we must determine whether the Master Deed reserved an express easement
appurtenant to the Irvins’ property.
Paragraph 10(c) of the Master Deed provides as follows:
There shall be an easement for ingress and egress over the roadways in the
condominium . . . said easements being for the benefit of the owners, and their
successors and assigns, of the land described in paragraph 3 above.
5
Heydon v MediaOne, 275 Mich App 267, 270; 739 NW2d 373 (2007).
6
Id.
7
Id.
8
Id. (quotations omitted).
9
Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339 (2001) (internal citations
omitted) (emphasis added).
10
DNR v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 370; 699 NW2d 272 (2005).
11
Id.
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Neither party disputes that the Irvins own the property “described in paragraph 3” of the Master
Deed.
We conclude that the plain language of paragraph 10(c) of the Master Deed expressly
reserved an easement appurtenant to the owners, successors, and assigns of the Irvins’ property
for purposes of ingress and egress. Notably, contrary to the Association’s contention, there is no
language that ties the easement to further development of the condominium project.
Although the easement language does not delineate the precise location of the
easement—that is, there is no metes and bounds description—“[i]t is not necessary that the party
reserving the easement right use any particular words as long as the intent to claim an easement
is apparent and it is described sufficiently so that the easement and the parcel of land to which
the right is attached can be determined, using parol evidence if necessary.”12
Here, the Master Deed specifically sets forth the benefited parcel of land—“the land
described in paragraph 3”—and there is no dispute that the Irvins currently own that land.
Further, with respect to the easement, although the site plan does not depict it, we can determine
its location by reference to the plain language of the Master Deed and parol evidence.
Specifically, the Master Deed reserved the easement for ingress and egress over the “roadways”
of the Association’s property. Although the Master Deed does not define the term “roadways,”
where a deed does not define a term, this Court will interpret the term in accord with its
“commonly used meaning.”13 And, “under the doctrine of noscitur a sociis, we give a word or
phrase meaning by its context or setting.”14 The term “roadway” is defined in relevant part as
“the land over which a road is built . . . the part of a road over which vehicles travel . . .”; the
term “road” is defined as “a long, narrow stretch with a leveled or paved surface, made for
traveling by motor vehicle . . . etc.”15 According to testimony, surveys, and photographs
admitted at trial, the condominium has one main area that is not a parking area, is paved and
extends toward the Irvins’ waterfront property, and is utilized by motor vehicles for ingress and
egress to and from Jefferson Avenue. Applying the commonly used meanings of “road” and
“roadway” set forth above, we conclude that this paved area is a “roadway” for purposes of
determining the location of the easement.
Although this roadway over the Association’s property ends a short distance from the
Irvins’ property, we find that the Irvins’ easement rights necessarily incorporate the right to
extend the roadway and join the two parcels together. “It is an established principle that the
conveyance of an easement gives to the grantee all such rights as are incident or necessary to the
reasonable and proper enjoyment of the easement.”16 In addition, an easement holder can make
12
Chapdelaine, 247 Mich App at 170.
13
Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 215; 737
NW2d 670 (2007) (quotation omitted).
14
Id. (quotations omitted).
15
Random House Webster’s College Dictionary (1997).
16
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 41; 700 NW2d 364 (2005).
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improvements to the servient estate that are necessary “for the effective use of the easement” that
do not “unreasonably burden” the servient estate.17 Thus, extension of the Association’s
roadway to the Irvins’ property to connect both parcels is necessary for the “reasonable and
proper enjoyment” and effective use of the easement.18 If the Association’s roadway is not
connected to the Irvins’ property, there will be no way for the Irvins and their successors or
assigns to access Jefferson Avenue by vehicle without traversing the grassy area separating the
two properties. This would subvert Gordon’s intent in granting the easement rights.
Further, extending the roadway to connect the two parcels of property will not amount to
an “unreasonable burden.”19 There is only a short distance between the two properties, extension
of the roadway does not require interference with any of the Association’s residents’ use of their
property, and the extension does not require the removal or demolishment of any improvements
on the Association’s land. Although the roadway will come close to one of the Association’s
condominium units, that unit will not be overburdened by the extension, as evidence showed that
an excessive number of vehicles will not utilize the extension. Finally, as the owners of the
easement, the Irvins will be responsible for the upkeep and maintenance of the extended portion
of the roadway.20
In sum, we conclude that the Master Deed reserved an express easement appurtenant to
the Irvins’ property over the roadway on the Association’s land for purposes of ingress and
egress. This easement includes the right to extend the roadway to provide access to the Irvins’
property. The trial court clearly erred in holding otherwise.
We reverse and remand for entry of judgment for the Irvins consistent with this opinion.
We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ William C. Whitbeck
/s/ Karen Fort Hood
17
Id.
18
Id.
19
Id.
20
See Morrow v Boldt, 203 Mich App 324, 329; 512 NW2d 83 (1994) (“[I]t is the owner of the
easement . . . who has the duty to maintain the easement in a safe condition . . . .”).
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