BLACKHAWK DEVELOPMENT CORP V VILLAGE OF DEXTER
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 13, 2005
BLACKHAWK DEVELOPMENT CORPORATION
and DEXTER CROSSING, L.L.C.,
Plaintiffs-Appellants,
v
No. 126036
VILLAGE OF DEXTER and DEXTER DEVELOPMENT,
Defendants-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
Plaintiffs sought leave to appeal from the Court of
Appeals
decision
affirming
summary
disposition
Dexter Development.
to
the
trial
defendants
court’s
village
of
grant
Dexter
of
and
Rather than grant leave to appeal, we
reverse the judgment of the Court of Appeals and remand
this case to the trial court for further proceedings.
I.
This
case
requires
INTRODUCTION
us
to
examine
the
scope
of
an
easement granted by a private party to a public entity.
Specifically, we must determine whether allowing a private
property
owner
amenities
granted
on
to
to
construct
property
a
access
subject
municipality
to
for
roads
an
the
and
easement
express
related
that
was
purpose
of
relocating and improving a public road is within the scope
of that easement.
Because there is no evidence in the
record that the proposed developments fall within the scope
of the express easement, we hold that the trial court erred
by holding otherwise.
Court
of
Appeals
Thus, we reverse the decision of the
and
remand
this
case
for
further
Dexter
ordered
proceedings.
II.
In
1990,
defendant
BACKGROUND
village
of
approximately one acre of a portion of land owned by the
Kingsley Trust, which was administered by John Kingsley,
condemned.
The village intended to use the land to improve
Dan Hoey Road, which was, at the time, a gravel road that
intersected with Dexter-Ann Arbor Road in an unsafe manner.
The village planned to pave and widen Dan Hoey Road, as
well as move it slightly south.
In lieu of condemning the land, the village and the
Kingsley Trust entered into a settlement agreement through
which
the
trust
granted
the
village
an
portion of approximately one acre in size.
easement
to
a
The settlement
agreement stated that the trust would transfer “an easement
2
for public roadway purposes . . . .”
The easement grant
read that the trust granted “an easement for the purposes
of relocating, establishing, opening and improving Dan Hoey
Road . . . .”
The village relocated Dan Hoey Road and completed its
project, but the project did not consume the entire area
subject to the easement.
burdened
parcel
Corporation,
plaintiff
property.1
to
which
Dexter
Eventually, the trust sold the
plaintiff
then
Blackhawk
developed
Crossing,
L.L.C.,
a
Development
commercial
on
a
portion
complex,
of
the
The portion subject to the easement was not
developed.
Thereafter,
defendant
Dexter
John
Kingsley,
Development,
through
purchased
his
corporation,
additional
land
that adjoined the old Dan Hoey Road but was separated from
the new Dan Hoey Road by land subject to the easement.
Kingsley then submitted a proposal for developing his land
to the village.
However, Kingsley’s plan included using
portions that were subject to the village’s easement for
the purpose of constructing access drives, building a pond,
and making other developments on that parcel.
1
For convenience, the singular “plaintiff” will refer
to Blackhawk Development Corporation.
3
The village informed Kingsley that he would have to
buy
the
affected
development,
offers.
but
land
before
plaintiff
it
would
rejected
approve
Kingsley’s
the
purchase
Consequently, Kingsley’s attorney advised Kingsley
to revise his proposal by removing from the plans affecting
plaintiff’s parcel anything that could be construed as a
“private”
development,
utilities,
but
sidewalks,
leaving
and
developments
access
roads.
such
as
Kingsley
resubmitted his revised plan and proposed to “dedicate” the
developments
on
public use.
the
affected
parcel
to
the
village
for
In other words, Kingsley proposed to create
purportedly
which
the
“public”
village
developments
could
then
on
justify
plaintiff’s
by
way
land,
of
its
easement.
The village authorized the proposal, giving Kingsley
permission
to
construct
developments
on
the
subject
property, including two access roads, light poles, trees,
landscaping, pond grading, sidewalks, pipes, conduit, sewer
lines, and water lines.
land
subject
to
the
The access roads would use the
easement
to
transect
plaintiff’s
property and connect Kingsley’s property to the new Dan
Hoey
Road.
As
part
of
their
agreement,
indemnified the village against legal action.
4
Kingsley
Neither the village nor Kingsley informed plaintiff of
their arrangement, leaving plaintiff to discover it when
construction began.
After plaintiff’s objections to the
village and to Kingsley proved unsuccessful, plaintiff sued
for injunctive relief, declaratory judgment, and trespass.
Among the facts that emerged during discovery were the
following.
In a memorandum addressing the matter, village
zoning officer Janet Keller wrote that because Kingsley’s
land was “landlocked,” the village might be “in jeopardy”
if it did not approve the access road.
Kingsley, however,
acknowledged that his land was not landlocked because of
two ingress and egress points at Dexter-Ann Arbor Road.
Further, Kingsley testified that he could have built his
commercial development without using the land covered by
the easement, but that he never submitted plans that did
not
include
land
covered
by
the
easement.
He
also
testified that the access drives served no other purpose
than access to the commercial development and that he only
built the west driveway because he believed the village
required it.
Zoning officer Keller testified that the village did
not request either road, but after reviewing where Kingsley
proposed to place the roads, the village asked Kingsley to
align the center road with an opposing road to form a four-
5
way intersection.
Keller stated that the village was never
presented with a plan that did not include the roads and
that she did not know why the development could not proceed
without them.
Keller testified that the access roads were
not an “improvement” to Dan Hoey Road.
However, both she
and other village officials agreed that the access roads
contributed to the safety of the area and that Kingsley’s
development as a whole contributed to the general public
good.
Evidence
from
the
village
planner
showed
that
the
access roads did not meet public road standards and that
the entrances were designed to meet commercial standards.
Moreover, the village attorney testified that when Dan Hoey
Road was realigned in 1990, all four of the purposes stated
in the easement grant, “relocating, establishing, opening,
and improving Dan Hoey Road,” were fulfilled.
the
testimony,
village
officials
had
no
According to
intention
to
further utilize the easement in the foreseeable future.
Defendants
moved
for
summary
disposition
under
MCR
2.116(C)(10),2 arguing that the proposed developments were
within
the
scope
of
the
village’s
2
easement
because
the
Defendant Dexter Development filed the initial motion
and supporting brief, and defendant village of Dexter filed
a concurring statement.
6
access
roads
promoted
public
safety
and
welfare.
Defendants also argued that the utilities were permissible
because
the
encompass
permissible
more
than
uses
mere
of
a
public
surface
road
travel.
easement
Further,
defendants contended that the use of the land covered by
the
easement
would
serve
primarily
public,
rather
than
private, purposes.
The trial court granted defendants’ motion for summary
disposition, ruling that the terms “roadway purposes” in
the settlement agreement and “improvement” in the actual
easement grant were ambiguous.
However, it found that the
developments benefited the public and were thus within the
scope of the easement.
Plaintiffs appealed the trial court’s ruling.
In a
split decision, the Court of Appeals majority held that the
trial
court
reached
wrong reason.
the
correct
result,
albeit
for
the
Blackhawk Dev Corp v Village of Dexter,
unpublished opinion per curiam of the Court of Appeals,
issued January 27, 2004 (Docket No. 240790).
The majority
held that the language at issue was not ambiguous, but that
the
proposed
developments
were
within
the
easement because they benefited the public.
scope
of
the
Notably, the
Court of Appeals examined the language of both the easement
grant and the settlement agreement.
7
The dissenting judge
agreed that there was no ambiguity in the language, but he
believed that the changes were not “improvements” to Dan
Hoey
Road
and,
thus,
were
outside
of
the
reconsideration
was
Plaintiffs’
denied,
and
plaintiffs
Court.
In lieu of granting plaintiffs’ application for
to
appeal,
application.
for
scope
easement.
leave
motion
the
sought
we
leave
ordered
to
oral
appeal
in
argument
this
on
the
471 Mich 905 (2004).
III.
STANDARD OF REVIEW
The extent of a party’s rights under an easement is a
question
those
of
facts
Miller,
306
fact,
is
and
a
reviewed
Mich
260,
trial
for
266;
court’s
clear
10
determination
error.
NW2d
849
of
Unverzagt
(1943),
v
citing
Harvey v Crane, 85 Mich 316, 322; 48 NW 582 (1891).
A
trial court’s dispositional ruling on equitable matters,
however, is subject to review de novo.
394 Mich 375, 383; 230 NW2d 529 (1975).
Stachnik v Winkel,
The decision to
grant or deny summary disposition is also reviewed de novo.
Stewart v Michigan, 471 Mich 692, 696; 692 NW2d 376 (2004).
IV.
This
whether
case
Dexter
presents
ANALYSIS
the
Development’s
straightforward
desired
question
developments
within the scope of the village of Dexter’s easement.
fall
The
inquiry does not center, as defendants seem to suggest, on
8
whether defendants’ proposed developments afford the public
at large some general benefit.
Further, the analysis of
this
the
issue
is
not
affected
by
fact
that
a
private
developer instituted the proposed developments.
Rather,
this Court must analyze simply whether the developments are
within the scope of the granted easement.
The existence of an easement necessitates a thoughtful
balancing
of
the
grantor’s
property
rights
and
grantee’s privilege to burden the grantor’s estate.
while
the
easement
holder’s
rights
are
the
And
ultimately
“‘“paramount . . . to those of the owner of the soil,”’”
the
latter’s
rights
are
subordinate
stated in the easement grant.
only
to
the
extent
Cantieny v Friebe, 341 Mich
143, 146; 67 NW2d 102 (1954), quoting Hasselbring v Koepke,
263 Mich 466, 475; 248 NW 869 (1933), quoting Harvey, supra
at 322.
Consequently, “[t]he use of an easement must be
confined strictly to the purposes for which it was granted
or reserved.”
Delaney v Pond, 350 Mich 685, 687; 86 NW2d
816 (1957).
A fundamental principle of easement law is that the
easement holder—here, the village—cannot “make improvements
to the servient estate if such improvements are unnecessary
for the effective use of the easement or they unreasonably
burden the servient tenement.”
9
Little v Kin, 468 Mich 699,
701; 664 NW2d 749 (2003), citing Crew’s Die Casting Corp v
Davidow,
369
Mich
541;
120
NW2d
238
(1963),
Unverzagt,
supra at 265, and Mumrow v Riddle, 67 Mich App 693, 700;
242
NW2d
489
(1976).
Stated
differently,
“‘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.’”
Unverzagt, supra at 265, quoting 9 RCL, p 784.
And “[t]he use exercised by the holders of the easement
must be reasonably necessary and convenient to the proper
enjoyment
of
the
easement,
with
as
possible to the fee owner of the land.”
From
whether
these
the
village’s
principles
proposed
effective
developments
are
evolves
developments
use
of
its
necessary,
burden
as
Id.
a
are
two-step
inquiry:
necessary
for
the
if
the
easement
whether
burden plaintiffs’ servient estate.
little
and,
they
Id.
unreasonably
Of course, the
need to answer the second question is obviated where the
first question is answered in the negative.
The
answers
to
these
inquiries
originate
language or express reservations of the grant.
266-267.
in
the
See id. at
The task of determining the parties’ intent and
interpreting the limiting language is strictly confined to
the “four corners of the instrument” granting the easement.
10
Hasselbring, supra at 477.
granting
instrument
is
Only where the language in the
ambiguous
may
this
Court
examine
evidence extrinsic to the document to determine the meaning
within it.
Little, supra at 700.
Thus,
language
our
of
first
the
task
granting
is
to
determine
instrument
is
whether
ambiguous.
the
The
instrument states that the grantor grants to the village of
Dexter
“an
easement
for
the
purposes
of
relocating,
establishing, opening and improving Dan Hoey Road in the
Village of Dexter, Washtenaw County, Michigan . . . .”
only
document
incorporated
by
reference
is
the
The
document
that sets forth the legal description of the land subject
to the easement.
the
language,
As such, our interpretation focuses on
“relocating,
establishing,
improving Dan Hoey Road . . . .”
opening
and
The parties seem to agree
that out of the four terms, the term “improving” is of
paramount relevance.3
There is nothing technical or unique about the word
“improving” in this context that would require us to rely
on anything other than its common sense meaning.
question
is
not
so
much
3
whether
defendant
But the
Dexter
Notably,
defendants
do
not
argue
that
the
developments purport to “open” Dan Hoey Road, which
undermines the dissent’s attempt to argue otherwise.
11
Development
has
proposed
“improvements”
in
the
sense
of
developments that help “improve” something, for certainly
these developments could be considered “improvements” in
the general sense of the word.
The more refined question
is whether the developments “improve” Dan Hoey Road.4
close
examination
of
the
record
reveals
no
A
evidence
supporting defendants’ claim that the proposed developments
are within the scope of the express easement.
According to zoning officer Keller, Kingsley’s revised
development plan included two access roads across the land
covered by the easement, and sidewalks, utilities, trees,
and “general public improvements” on that land.
Clearly,
the access roads served to connect the commercial complex
to Dan Hoey Road rather than to complement Dan Hoey Road
itself.
The utility, water, and sewer lines served to
connect Kingsley’s development to main utility, water, and
4
The dissent reads too much into the comment that the
installations could, on some general level, be considered
“improvements.” See post at 5-6. If the debate were truly
over
whether
roads,
sidewalks,
and
grading
are
“improvements,” certainly there would be as many countering
views as supportive ones.
But our task is not simply to
determine
whether
the
proposed
installations
are
“improvements,” but whether, as we clearly state, the
installations improve Dan Hoey Road.
Likewise, dictionary
definitions of “improvement” do nothing to resolve whether
sidewalks, utilities, and lighting improve Dan Hoey Road,
so the dissent’s citation of the dictionary is ineffective.
See post at 5.
12
sewer
lines.
The
sidewalks
and
lighting
on
the
land
covered by the easement were not sidewalks and lighting for
Dan Hoey Road, but sidewalks and lighting for the private
commerce center and surrounding area.
developments
improving
Dan
could
Hoey
be
said
Road.5
to
be
Without
Not one of these
for
the
question,
purpose
of
Kingsley’s
planned use of the land covered by the easement served the
5
Kingsley claims he believed that the village
“required” one of the access roads on his site plan, but
the evidence shows only that the village asked Kingsley to
align the road–which appeared on Kingsley’s original site
plan and every one thereafter–with an opposing road so as
to create a four-way intersection. Indeed, village zoning
officer Keller could point to nothing that required the
road, and she testified that Kingsley’s two other access
roads by way of Dexter-Ann Arbor Road were sufficient for
ingress and egress purposes.
As such, to the extent
defendant Dexter Development argues that public safety
reasons compelled its use of the land subject to the
easement, we find that argument unpersuasive.
Moreover, the fact that Kingsley offered to dedicate
the developments to the public does not change the
analysis. See post at 3 n 1. While it is of course true
that the village can open streets, install sidewalks, and
landscape, see post at 10, that says nothing about whether
a village can undertake those projects under an easement it
holds.
Regardless of who initiates the project, the
analysis is the same.
For example, had the village
endeavored to construct these developments, we would
conduct the same analysis conducted in this case to
determine whether the proposed developments are within the
easement’s scope.
It is unclear why the dissent insists
that our analysis hinges on who proposed the developments
and on subjective motivations. See post at 9-11.
13
exclusive purpose of furthering and enhancing his private
complex.6
6
The dissent proffers that Unverzagt, supra, supports
its conclusion that consistent with the parties’ intent,
the proposed developments here are reasonably necessary to
improve and open Dan Hoey Road.
Post at 6-8.
In
Unverzagt,
this
Court
resolved
the
question
of
reasonableness of use against the grantor of an easement
where the question was whether the grantor could preclude
the easement holders’ invitees from using the easement to
deliver goods to the easement holders.
This Court held
that use by the invitees was incidental and necessary.
Unverzagt, supra at 265-266.
The dissent’s simplistic comparison disregards several
critical differences between Unverzagt and the case at
hand.
First and foremost, the village holds the easement
in question here, not Dexter Development.
Thus, the
commercial traffic will not serve the easement holder as
the delivery traffic did in Unverzagt.
In that sense
alone, the commercial traffic is not “incidental” to the
easement.
Moreover, this Court crafted its opinion in
Unverzagt restrictively:
This does not mean that any and all invitees
of a cottage owner may have the right to use the
streets.
To so hold, would mean that a cottage
owner might invite the use of the streets by
conventions, picnics, assemblies in general.
Such use would defeat the purpose as well as the
desires of all parties.
Nor do we go to the
extent of holding that hawkers and peddlers of
goods, wares and merchandise may use the private
streets in the park for their own purposes, even
at the invitation of cottage owners.
[Id. at
266.]
Thus, this Court clearly recognized, as we must here,
that permitted easement use is not unlimited but must
conform to the purposes set forth by the parties in the
easement grant.
14
Critical
testified
to
our
that
“improvements”
the
to
analysis
proposed
Dan
Hoey
is
that
access
Road
and
village
roads
that
agents
were
none
not
of
the
proposed developments was necessary with regard to Dan Hoey
Road.
Village zoning officer Keller testified that the
village
had
proposed
no
reason
to
developments.
construct
Clearly,
the
any
of
Kingsley’s
evidence
fails
to
establish that the proposed developments fell within the
scope
of
easement
Road.
the
for
the
village’s
express
limited
purpose
property
of
interest—an
improving
Dan
Hoey
In fact, the developments are so clearly unrelated
to “improving” Dan Hoey Road–in both concept and physical
proximity–that they cannot be said to fall within the scope
of the village’s easement, which was secured to improve not
Further, the dissent cursorily concludes, without
record support or analysis, that “landscaping and drainage
ponds reasonably could improve Dan Hoey Road . . . ,” and
“[a]ccess drives and sidewalks would ‘improve’ and ‘open’
the road . . . .” Post at 6, 7 n 5. We disagree. First,
Dan Hoey Road was already “opened,” according to the
village. Second, the dissent asserts that landscaping and
drainage
ponds
“control[]
rainwater
runoff,
thereby
enhancing the safety and life of the road.”
Post at 6.
Limiting the amount of vehicles on Dan Hoey Road might
enhance the safety and life of the road as well, but not
every conceivable effect on Dan Hoey Road renders it an
“improvement.” We decline to read the word “improve” that
broadly.
15
the general surrounding area and corporate development, but
Dan Hoey Road itself.7
Where the rights to an easement are conveyed by grant,
neither
party
can
party’s consent.8
alter
the
easement
without
the
other
Douglas v Jordan, 232 Mich 283, 287; 205
7
Despite defendant Dexter Development’s heavy emphasis
on its theory that the two access roads across the land
covered by the easement are necessary for the general
safety of the area, we need not address that contention.
Officer Keller testified that having only one access point
into Kingsley’s development created additional traffic
concerns on Dexter-Ann Arbor Road.
However, the need to
alleviate traffic or congestion concerns on Dexter-Ann
Arbor Road does not broaden the scope of the village’s
easement.
Further, the mere fact that the village asked
Kingsley to alter his plan to align one of the access roads
with an opposing road does not speak to whether the access
road was for the purpose of improving Dan Hoey Road. Thus,
the public safety arguments advanced by Dexter Development
are misplaced.
8
We have no quarrel with the proposition that an
easement is a permanent interest in land, see post at 13,
and we do not hold otherwise.
But the permanency of the
grant does not control or even speak to the way in which
the easement may be used.
The dissent states that
plaintiffs “may not be heard to complain that Dexter
Development’s proposed uses involve more land than was in
service.”
Id.
But again, the dissent misses a finer
point. Plaintiff complains not about geography, but about
purpose. The dissent finds that the easement “contains no
language preventing use of an increased amount of the land
encompassed within it.” Id. As such, it concludes that it
can “infer that the parties intended to allow the area used
in the easement to expand to maintain the easement’s
utility.” Id.
The dissent reads its cited Restatement passage too
loosely.
See post at 13-14.
The Restatement does not
allow for haphazard inferences of parties’ intent.
It
states, “The determination [of an easement’s scope] is
16
NW 52 (1925), citing Powers v Harlow, 53 Mich 507; 19 NW
257 (1884).
authorized
When the village, as the dominant estate,
developments
on
the
servient
land
for
the
benefit of another parcel of land, the village improperly
altered the easement without plaintiff’s consent.
doing,
the
village
materially
increased
the
By so
burden
on
plaintiff’s servient estate by imposing new burdens that
were not contemplated at the time of the easement grant,
contrary
to
general
easement
principles.9
See
Delaney,
primarily one of fact, based on inferences that may be
drawn from the language and circumstances, but the outcome
in any particular case may be affected by the level of
generality with which the purpose is defined.”
1
Restatement of Property, 3d, § 4.10, comment d, p 595. The
comment goes on to explain that, for instance, if an
easement grants “access,” the word “access” may be
interpreted more broadly than if the words “ingress and
egress to people and vehicles” had been used. Thus, rather
than permitting a court to guess, the Restatement advises
that where words are more general, the intent will be
determined accordingly. Here, the task is made simpler by
the fact that we need not determine what the parties meant
by the general word “improve,” but rather what they meant
by the more specific parameter “improve Dan Hoey Road.”
The phrase “improve Dan Hoey Road” is self-limiting and
must be given its ordinary meaning.
We disagree that the
fact that the phrase was not further elaborated on permits
unlimited use of the burdened land.
9
The dissent somewhat puzzlingly concludes that the
developments fall within the scope of the easement because
where there were once four residential driveways, there
would now be “only” two commercial access roads.
Post at
12.
Ignoring for a moment that the proposed access road
across the parcel subject to the easement does nothing to
improve Dan Hoey Road, it is difficult to understand how
one would conclude that a burden lessens, rather than
17
supra at 687; Barbaresos v Casaszar, 325 Mich 1; 37 NW2d
689 (1949).
of
The easement was not procured for the benefit
Kingsley’s
property,
nor
was
it
procured
for
developments unrelated to Dan Hoey Road that may arise in
the future.
This is not to say that once the village
relocated Dan Hoey Road, it had no further rights to impose
further developments in relation to the road.
But while
the village’s easement is unlimited in duration, it is not
unlimited in scope.
Thus, the village was and remains
obliged to ensure that any use of the land covered by the
easement strictly comports with the purpose of the easement
as originally granted:
relocating, establishing, opening,
and improving Dan Hoey Road.
Defendants argue that our inquiry regarding the scope
of the easement should extend to the language found in the
increases, when in lieu of four residential driveways,
there are instead two roads to a large commercial complex.
Not only is the dissent’s conclusion odd, it is also devoid
of record support.
Another strange conclusion by the
dissent is that because plaintiff was unable to build on
the parcel, “Blackhawk’s quiet enjoyment of the parcel
would not be impermissibly disturbed by increased traffic
whether on the new access drives or on several lanes of
through traffic.”
Post at 12
The fact that plaintiff
could not develop its parcel seems to us to doubly support
a conclusion that where that parcel is commercially
developed by a commercial neighbor, quiet enjoyment is
vastly disturbed.
And the fact that plaintiffs did not
“question” the easement when they purchased their land does
not extinguish their right to contest improper uses of the
easement.
18
settlement agreement that was reached between Kingsley, as
a predecessor in interest to the servient estate, and the
village.
The settlement agreement referred to the easement
as one for “public roadway purposes.”
Defendants argue
that
of
this
beyond
language
general
broadens
private
the
scope
easement
references a “public roadway.”
the
principles
easement
because
it
The effect, according to
defendants, is essentially that the land subject to the
easement can be used for any purpose the village desires as
long as the purpose can be said to confer some general
benefit to the public.
access
roads,
generally
Thus, defendants argue, because the
utilities,
benefit
the
sidewalks,
public
and
as
a
commerce
whole,
center
they
are
permissible uses of the land covered by the easement.
It is true that “[i]f the text of the easement is
ambiguous,
trial
extrinsic
court
easement.”
in
evidence
order
to
may
be
determine
Little, supra at 700.
considered
the
scope
by
the
of
the
It is also true that
where an ambiguity exists, “the courts will try to arrive
at the intention of the parties and in accordance therewith
. . . .”
Farabaugh v Rhode, 305 Mich 234, 240; 9 NW2d 562
(1943).
However,
considering
extrinsic
evidence
in
the
absence of ambiguous language is “clearly inconsistent with
the
well-established
principles
19
of
legal
interpretation
. . . and is thus incorrect.”
We
find
limiting
nothing
ambiguous
language.
considering
Thus,
language
Little, supra at 700 n 2.
about
the
the
extrinsic
easement
trial
to
court
the
grant’s
erred
express
by
easement
grant.
As a corollary, defendants further argue that because
a
public
entity
holds
the
easement,
the
scope
of
permissible uses is broader, and the easement can be used
for any public purpose.
For this proposition, defendants
rely on Eyde Bros Dev Co v Eaton Co Drain Comm’r, 427 Mich
271; 398 NW2d 297 (1986), and
Village of Grosse Pointe
Shores v Ayres, 254 Mich 58; 235 NW 829 (1931).
We held in
Eyde that “a public easement in a highway dedicated by user
is not limited to surface travel, but includes those uses,
such as the installation of sewers, contemplated to be in
the public interest and for the public benefit.”
supra at 286.
Court
Grosse
of
But as correctly noted by the dissenting
Appeals
Pointe
Eyde,
judge
Shores
in
this
involved
case,
“a
neither
situation
Eyde
nor
where
the
proposed improvements ran across or under land that was
owned
in
fee
simple
by
a
private
party
and
was
established as, or being used as, a public roadway.”
op at 2.
not
Slip
Rather, those cases, at most, stand for the
proposition that an easement for roadway purposes includes
20
all appropriate purposes to which roads and streets are
actually devoted, provided that they occur on or under the
surface of the roadway itself.10
This comports with the
statutory grant for the laying of utilities “upon, over,
across, or under” public roads.
However,
stated
in
as
this
the
See MCL 247.183(1).
dissenting
case,
“the
Court
of
Appeals
‘improvements’
judge
sought
by
defendants do not merely affect the surface or subsurface
of Dan Hoey Road,” but they also affect the unimproved
portion of plaintiff’s property that was subject to the
easement.
simple
Slip op at 2.
property
to
a
Plaintiffs have not dedicated fee
public
entity
for
a
public
road.
Rather, the village holds a more limited property interest—
an express easement for the express purpose of improving
Dan Hoey Road, and nothing else.
10
That a public entity
In Grosse Pointe Shores, supra at 64, we first
rejected, as a matter of public policy, certain conditions
that the defendants had attached to their dedication of
land
for
roadway
purposes
that
would
have
placed
restrictions on the installation of sidewalks, utilities,
and sewer lines and on paving or widening the road. After
finding the conditions invalid, we outlined what types of
improvements
to
a
highway
dedicated
by
user
were
permissible. We noted that the improvements at issue were
“in territory which had been and continued to be part of
the street.” (Emphasis added.) In Eyde, supra at 296, we
addressed the “issue of compensation for new uses of public
easements within streets dedicated by statute.”
(Emphasis
added.)
Thus, improvements made pursuant to a public
easement are limited to those uses that fall within the
right-of-way of the roadway itself.
21
holds an easement and the easement is for a public road
transforms neither the nature nor the scope of the granted
easement, contrary to the dissent’s attempt to do so.
post at 5-6.
See
“Public interest” and “public benefit” are
not valid reasons to allow the municipality to obtain more
property rights than were granted.
Thus, both Eyde and
Grosse Pointe Shores are inapplicable.
V.
CONCLUSION
The express language of the easement grant in this
case is not ambiguous, and there is no evidence in the
record that the proposed developments were within the scope
of
the
easement.
As
such,
the
village
improperly
authorized the use of its easement for purposes that were
unrelated to the improvement of Dan Hoey Road.
For these
reasons, we reverse the judgment of the Court of Appeals
and remand this case for further proceedings.
On remand,
the trial court should enter a declaratory judgment and
grant injunctive relief in plaintiffs’ favor and conduct
further
damages.
proceedings
on
plaintiffs’
claim
for
We do not retain jurisdiction.
Michael F. Cavanagh
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
22
trespass
S T A T E
O F
M I C H I G A N
SUPREME COURT
BLACKHAWK DEVELOPMENT CORPORATION
and DEXTER CROSSING, L.L.C.,
Plaintiffs-Appellants,
v
No. 126036
VILLAGE OF DEXTER and DEXTER DEVELOPMENT,
Defendants-Appellees.
_______________________________
YOUNG, J. (concurring).
I
fully
concur
with
the
majority
opinion.
I
write
separately, however, in response to the dissent’s contrary
assertion, to emphasize that the majority opinion does not
suggest that John Kingsley’s motivations are dispositive of
the
village’s
provides
information
a
motivations.
complete
for
the
The
majority
recitation
purpose
of
of
opinion
the
providing
merely
background
a
full
understanding of the transaction. Because he is a third
party who enjoys no cognizable interest in the property
burdened by the easement, Kingsley’s purposes in proposing,
initiating, designing, or financing the improvements to the
easement are absolutely irrelevant in determining whether
the
easement
holder
may
lawfully
make
the
proposed
developments to the easement.
Thus, as a threshold matter, the easement holder must
assert that the proposed improvements to the easement are
within
the
scope
of
the
easement.
Secondly,
the
developments to the easement must be objectively congruent
with the purpose permitted in the easement. In this case,
the scope of the easement is to “improv[e] Dan Hoey Road
. . . .” The village does not maintain that the purpose
behind the proposed developments is to “improve Dan Hoey
Road.”
Because
showing
that
the
the
village
failed
developments
to
were
make
the
initiated
initial
for
the
purpose of improving Dan Hoey Road, there is no basis to
conclude
within
that
the
the
scope
desired
of
the
developments
easement.
are
Thus,
objectively
the
proposed
developments are outside the scope of the easement as a
matter of law.
Robert P. Young, Jr.
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
BLACKHAWK DEVELOPMENT CORPORATION,
a Michigan corporation, and
DEXTER CROSSING, LLC, a Michigan
limited liability company,
Plaintiffs-Appellants,
v
No. 126036
VILLAGE OF DEXTER and
DEXTER DEVELOPMENT,
Defendants-Appellees.
_______________________________
KELLY, J. (dissenting).
Defendant village of Dexter obtained the easement that
is under scrutiny in this case to improve Dan Hoey Road.
Defendant Dexter Development proposed to install utility
lines, street lighting, sidewalks, and landscaping on the
property subject to the easement and dedicate them to the
village.
It also proposed to widen one private access
drive on the property and consolidate into one three other
private access drives that connect Dan Hoey Road with the
adjacent private parcel.
The majority holds that these projects are not within
the scope of the easement.
erroneously
relies
projects.
But
on
the
the
To reach this conclusion, it
subjective
motivation
should
motivation
be
for
irrelevant
the
in
determining whether a proposed use lies within the scope of
an easement.
Because I believe that the projects in question open
and improve Dan Hoey Road, they fall within the scope of
the easement.
trial
court
Hence, I would affirm the decisions of the
and
the
Court
of
Appeals
in
favor
of
defendants.
FACTUAL BACKGROUND
The village obtained an “easement for the purposes of
relocating, establishing, opening and improving Dan Hoey
Road” from Dexter Development, which owned the land.
The
village used the easement to relocate the road to the south
and to widen it.
The property to the north of the road had been divided
into four parcels.
Each had direct access to the old road.
To create access for them to the new Dan Hoey Road, the
village installed four new access drives.
The old and the
new roads together with the old and new access drives are
on
the
land
that
is
subject
Development did not object.
to
the
easement.
Dexter
Moreover, plaintiff Blackhawk
Development had not objected to continued use of the drives
when it bought the land over which the easement runs.
Dexter Development later acquired the four parcels to
the north of the road in the hope of developing them.
2
It
wished to have three of the four access roads consolidated
into
one,
the
fourth
widened,
and
street
lighting,
landscaping, sidewalks, and underground utilities installed
on
the
easement
property.
Eventually,
it
obtained
a
license from the village to make the improvements on the
easement property itself.
In its brief, Dexter Development
indicated that it promised to dedicate the improvements to
public use.1
Plaintiff Blackhawk Development, which had refused to
sell
to
Dexter
Development
the
parcel
over
which
the
easement runs, filed suit to enjoin construction of the
improvements.
Plaintiffs contended that the projects were
not to improve Dan Hoey Road.
ANY PROPOSED USE OF AN EASEMENT IS REQURIED TO BE
WITHIN THE EASEMENT’S SCOPE
The
purpose
of
an
easement
is
determined
by
the
parties and ascertained by applying principles similar to
those used when contracts are construed.
Property, 3d, § 4.1, comment d, p 499 (2000).
1 Restatement
The terms of
the easement conveyance are given their ordinary meaning in
light of the surrounding circumstances.
1
Newaygo Mfg Co v
I do not represent that Dexter Development or its
owner acted as the village’s agent.
Ante at 13 n 5.
Rather, Dexter Development attempted to do what the village
could have done with the intention of dedicating the
improvements to the public.
3
Chicago & W M R Co, 64 Mich 114, 122-123; 30 NW 910 (1887);
25 Am Jur 2d, § 18, p 516, § 73, p 571; 1 Restatement
Property, 3d, § 4.1, comment d, p 499.
is
not
enumerated
in
the
If a specific use
easement
conveyance,
the
surrounding circumstances may be considered to ascertain
the
intent
of
the
parties.
Newaygo
at
122-123,
1
Restatement Property, 3d, § 4.10, comment a, p 592, and
comment d, p 595.
See also Thies v Howland, 424 Mich 282,
293; 380 NW2d 463 (1985).
The majority agrees with the principle enunciated by
this Court in Unverzagt v Miller2 that “‘[t]he use exercised
by the holders of the easement must be reasonably necessary
and convenient to the proper enjoyment of the easement,
with as little burden as possible to the fee owner of the
land.’”
Ante at 10, quoting Unverzagt at 265.
In Unverzagt, the defendant granted the plaintiffs an
easement to use the private streets of the subdivision to
gain access to their cottages.
merchants
to
be
able
to
The plaintiffs wanted local
deliver
goods
to
them.
The
defendant claimed that the easement did not permit others,
not social guests of the plaintiffs, to use the streets
without the defendant’s permission.
2
306 Mich 260; 10 NW2d 849 (1943).
4
This Court held that the condition laid down by the
defendant
unreasonably
plaintiffs.
reasonably
restricted
the
right
of
the
The proper test, we ruled, is whether it was
necessary
for
the
use
and
enjoyment
of
the
easement that plaintiffs could invite nonsocial guests to
use
the
private
streets.
We
held
that
holders
of
the
easement had the right to use it limited only by what was
necessary to and reasonable in its use.
This included
allowing nonsocial guests to make deliveries over it.
did not include use by the general public.
It
Unverzagt at
265-267.
In this case, the easement is “for . . . opening and
improving
Dan
Hoey
Road.”
Sidewalks,
utilities
lighting systems are improvements to highways.
Dictionary (6th ed), p 757.
contrary,3
the
majority
and
Black’s Law
Despite implications to the
opinion
concedes
that
Development’s proposed projects are improvements.
Dexter
Ante at
12.4
3
Ante at 13 n 5, 15 n 6.
4
See also Warren v Grand Haven, 30 Mich 24, 27-28
(1874)
(dedication
of
land
to
a
roadway
includes
constructing sewers), Village of Grosse Pointe Shores v
Ayres, 254 Mich 58, 64; 235 NW 829 (1931) (sewer, water,
gas,
lighting,
and
telephone
systems
are
highway
improvements).
5
It is readily apparent that landscaping and drainage
ponds reasonably could improve Dan Hoey Road by controlling
rainwater runoff, thereby enhancing the safety and life of
the road.
Access drives and sidewalks would “improve” and
“open” the road by facilitating public access to and from
it by vehicles and pedestrians on the north.
Dexter
Development
permission
to
By granting
install
these
improvements, the village authorized the improvement and
opening of Dan Hoey Road.
The majority opinion’s factual comparison of this case
with Unverzagt shows that there are limits to Unverzagt’s
application here.
Ante at 14 n 6.
The easement in that
case was private and the issue concerned use of an easement
by
invited
guests
of
the
easement
holders.
Here,
the
easement is held by a government entity and is for a road
used by the general public.
An easement to improve and
open a public road is by its terms more expansive than an
easement to access a private road.
The Court’s decision in Unverzagt to prohibit general
public use was necessary to fulfill the parties’ intentions
to create a private easement to allow access to certain
cottages.
The ruling disallowed use of the easement for
purposes other than access, such as picnics, because they
would defeat the purpose of the easement.
6
In the case before us, the property owner granted an
easement for public purposes to a governmental entity.
parties
intended
to
create
an
easement
that
The
inherently
encompassed broader uses than those allowed in Unverzagt.5
The surrounding circumstances confirm that the parties
who created the easement intended that it could be used for
projects such as those proposed by Dexter Development.
grantor’s
view
of
the
scope
of
the
easement
is
The
more
persuasive of the scope than the view of a later purchaser
of the burdened estate.
Crew’s Die Casting Corp v Davidow,
369 Mich 541, 546; 120 NW2d 238 (1963).6
A party may not
unilaterally change the scope of an easement once conveyed.
5
The majority’s discussion of Eyde Bros Dev Co v Eaton
Co Drain Comm’r, 427 Mich 271; 398 NW2d 297 (1986), and
Ayres, supra, does not support its determination of the
scope of this easement.
Ayres involved an express grant
and Eyde Bros involved a highway created for public use.
Both easements were geographically limited to the roadways
involved.
In this case, there is no requirement that the
proposed improvements be on or under the existing roadway.
This easement explicitly encompasses a much larger area.
As in Ayres, the improvements would be on the portion
subject to the easement, and they would directly affect the
road. They would open it in the case of the access drives
and improve it in the case of the lighting, sidewalks,
driveways, and landscaping.
6
See also Schumacher v Dep’t of Natural Resources, 256
Mich App 103, 107; 663 NW2d 921 (2003), citing Tobias v
Dailey, 196 Ariz 418, 421; 998 P2d 1091 (Ariz App, 2000);
Tungsten Holdings, Inc v Kimberlin, 298 Mont 176, 182; 994
P2d 1114 (2000); Thompson v Whinnery, 895 P2d 537, 541-542
& n 8 (Colo, 1995).
7
Schadewald
v
Brulé,
225
Mich
App
26,
36;
570
NW2d
788
(1997), citing Douglas v Jordan, 232 Mich 283, 287; 205 NW
52
(1925).
See
also
Schumacher
v
Dep’t
of
Natural
Resources, 256 Mich App 103, 106; 663 NW2d 921 (2003).
The village obtained an easement over the whole parcel
rather than merely over the new roadbed.
The Court of
Appeals wrote that the village’s attorney testified
the crescent-shaped piece of land . . . was meant
to be used to provide rights of way to the north
residences that were separated from the road.
[Unpublished opinion per curiam of the Court of
Appeals, issued January 27, 2004 (Docket No.
240790).]
Dexter Development was owned by the grantor of the
easement.
he
His failure to object to the access drives when
granted
created
it
the
easement
understood
suggests
that
that
opening
the
the
parties
road
who
included
building access roads.
The majority opinion fails to take proper account of
the factual circumstances of this case.
I would hold that,
because Dexter Development’s activities will improve and
open
Dan
Hoey
Road,
they
are
within
the
scope
of
the
easement.
THE SUBJECTIVE MOTIVATION TO USE AN EASEMENT IS
IRRELEVANT
Motive, in the strict sense, is distinct from purpose.
Motive has been described as the desire that prompts a
8
person
to
act,
obtained.
whereas
purpose
is
the
result
to
be
Hudson v American Oil Co, 152 F Supp 757, 770
(ED Va, 1957).
Courts do not normally inquire into the
motive behind the exercise of a right.
Burke v Smith, 69
Mich 380, 388; 37 NW 838 (1888).
The majority opinion asserts that its analysis does
not consider that these improvements were initiated by a
private
developer.
subsequent
focus
Ante
on
the
at
fact
9.
But
that
the
the
majority’s
improvements
in
question are being proposed at the behest of a private
developer
belies
this
assertion.
The
opinion
states,
“[Dexter Development’s] planned use of the land covered by
the easement served the exclusive purpose of furthering and
enhancing [its] private complex.”
Ante
at 13-14.
The
majority asserts that defendant Dexter Development sought
to use the village’s easement to accomplish something it
could not accomplish otherwise.
These
considerations
examination
of
the
terms
are
of
Ante at 4.
improper.
the
The
conveyance
Court’s
and
the
surrounding circumstances should be an objective inquiry.
The subjective motivations of the interested parties are
irrelevant.
The
pertinent
question
is
whether
the
improvements fulfill the easement’s purpose to improve and
open
Dan
Hoey
Road.
The
village
9
is
not
obligated
to
justify its motives, as the majority and concurrence seem
to require.
Also, the fact that Dexter Development rather than the
village is arguing for the improvements is not remarkable.
Dexter Development agreed to indemnify the village against
legal
action
arising
from
the
proposed
improvements.
Hence, it is to be expected that Dexter Development would
advance
the
legal
arguments
supporting
the
proposed
improvements in place of the village.
When
viewed
objectively,
the
purpose
improvements is to open and improve the road.
of
the
The fact
that a developer seeks to implement them rather than the
village has no legal relevance.
undertaken
by
the
village
Villages may open streets.
The improvements could be
directly,
at
MCL 67.12.
its
discretion.
They may install
sidewalks or require property owners to install them.
67.8.
They may also landscape.
MCL
MCL 67.21.
Moreover, the village was not required to have made a
decision to further improve and open Dan Hoey Road before a
developer requested it, as the majority implies.
6.
Ante at
It could decide to install landscaping and sidewalks
for aesthetic reasons at any time.
Also, it could decide
at any time to install the improvements in question to
10
enhance
the
road’s
safety,
longevity,
and
utility
as
a
transportation artery.
Justice
reference
Young
to
in
his
that
authority
concurrence
the
village
asserts
has
without
an
initial
burden to show that the proposed improvements are within
the
scope
of
the
easement.
Such
a
burden
contradicts
standard practice that puts the onus on the party making a
claim
to
articulate
2.116(c)(8).
plaintiffs
and
substantiate
it.
See
MCR
In this case, the burden rightfully is on
to
assert
and
show
that
the
improvements exceed the scope of the easement.
proposed
Stewart v
Hunt, 303 Mich 161, 163; 5 NW2d 737 (1942).
Justice Young appears to be suggesting as well that
the village has the initial burden of showing that the
underlying motivation for the improvements is consistent
with the scope of the easement.
belies
his
concurring
This is inaccurate, and it
argument
that
the
parties’
motivations are irrelevant to the disposition of the case.
THE PROPOSED USES DO NOT
UNREASONABLY BURDEN THE SERVIENT ESTATE
This Court has held that, where broad language in an
easement
permits
uses
not
stated,
those
uses
must
not
impose an additional or increased burden on the servient
estate.
Crew’s Die Casting Corp, supra at 546, quoting
11
Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957).
In
this case, the access drives and related improvements do
not increase the burden.
They fit squarely within the
scope of what the parties intended.
access
drives,
there
would
be
Where there were four
only
two.
They
would
consolidate the traffic running over the access drives.
Plaintiffs’ burden would not increase by virtue of the
fact
that
the
access
drives
would
service
development rather than four residences.
held
that,
generally
speaking,
a
mere
a
commercial
This Court has
increase
in
the
number of persons using an unlimited right-of-way to which
land
is
subject
is
not
an
unlawful
additional
burden.
Henkle v Goldenson, 263 Mich 140, 143; 248 NW 574 (1933).
In theory, Dan Hoey Road could be opened to encompass
several lanes of through traffic over the entire parcel.
If so opened, the increased traffic would not necessarily
exceed the scope of this unlimited easement to open the
road.
Under
the
village’s
zoning
requirements,
Blackhawk
could not build on the parcel.
Blackhawk’s quiet enjoyment
of
impermissibly
the
parcel
would
not
be
disturbed
by
increased traffic whether on the new access drives or on
several lanes of through traffic.
12
Plaintiffs may not be heard to complain that Dexter
Development’s
previously
proposed
was
in
uses
service.
An
permanent interest in land.
4.1,
comment
preventing
b,
use
involve
p
498.
of
an
easement
land
is
than
normally
a
1 Restatement Property, 3d, §
This
one
contains
increased
encompassed within it.
more
amount
no
of
language
the
land
Thus, I infer that the parties
intended to allow the area used in the easement to expand
over
time
to
maintain
the
easement’s
utility.
1
Restatement Property, 3d, § 4.10, p 592.
Plaintiffs should have expected that improvements of
the
kind
contemplated
future day.
could
be
installed
at
some
They may not be heard to complain that that
day has come.
not
here
understand
They have no grounds to assert that they did
the
broad
created the easement.
intention
of
the
parties
who
They had record notice that the
easement was in part to open and improve the road.
Plaintiffs had inquiry notice of access drives for the
use of the property owners to the north, and they never
questioned their propriety when they acquired the property.
Although there were no distinct easements in the record for
each driveway, plaintiffs had to know that the easement
included access drives.
13
The
effect
servient
estate
situation
between
in
of
in
the
this
Delaney,
private
proposed
case
can
supra.
parties
improvements
be
There,
for
lake
on
the
with
the
easement
was
compared
the
access.
The
Court
correctly held that
[a] principle which underlies the use of all
easements is that the owner of an easement cannot
materially increase the burden of it upon the
servient estate or impose thereon a new and
additional burden. See 17A Am Jur, Easements, §
115, p 723. [Delaney at 687.]
Mooring boats and sunbathing were not inherent in providing
access to the lake, and they increased the burden on the
servient
estates.
Id.
By
contrast,
here
the
proposed
improvements open Dan Hoey Road and improve it, and they do
not increase the burden on the servient estate.
CONCLUSION
It is irrelevant in this case that Dexter Development
is
a
private
developer.
Its
proposed
projects
are
compatible with the purpose of and fall within the scope of
the easement, which is to open and improve Dan Hoey Road.
The actions of the parties who created the easement confirm
this.
Moreover, Dexter Development’s proposed improvements
do not unreasonably burden plaintiffs’ estate.
14
I would affirm the decisions of the Court of Appeals
and
of
the
trial
court.
Dexter
Development’s
projects are within the scope of the easement.
Marilyn Kelly
15
proposed
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