GEORGE W DYBALL V WILLIAM LENNOX
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGE W. DYBALL and LINDA S. DYBALL,
Plaintiffs-Appellants,
v
UNPUBLISHED
November 18, 2003
APPROVED FOR
PUBLICATION
February 24, 2004
9:10 a.m.
No. 241296
Genesee Circuit Court
LC No. 01-071074-CH
WILLIAM LENNOX,
Defendant-Appellee.
Updated Copy
May 7, 2004
Before: O'Connell, P.J., and Jansen and Wilder, JJ.
PER CURIAM.
Plaintiffs appeal as of right from an order granting defendant's motion for summary
disposition and dismissing plaintiffs' claims. On appeal, plaintiffs argue that the trial court erred
because defendant's easement should be strictly construed as an easement for ingress and egress,
and not for other activity. We reverse and remand.
The Crane family owned a section of the land abutting Lake Fenton. The easement in
question was originally created in a September 1955 deed from Edith Crane to George Crane,
which provided in relevant part, "The Easterly 16 feet of the above-described premises being
reserved for the use of those parties, their heirs, assigns, and successors, owning lots in
Cranewood No. 1 Subdivision . . . for the purpose of ingress and egress to and from the premises
in which they may have an interest to the water's edge of Lake Fenton." In April 1960, the Crane
family deeded a parcel of that property to Sonia Newland and her husband. The deed was
recorded in May 1960, and included in the deed was this language: "[s]ubject to the easterly
16.0 feet being reserved for an easement for access to the lake for the [back] lot owners in
'Cranewood No. 1.'"
Newland granted part of the property to plaintiffs, making plaintiffs riparian owners of
property contiguous to Lake Fenton. Newland also deeded part of the property to defendant,
who is not a riparian owner, but was in Cranewood No. 1, which enjoys a dominant estate with
regard to the easement. An affidavit of Bonnie Mathis, a resident on Lake Fenton since before
1950, states that a dock could have been in place at the end of the easement since the 1950s.
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Defendant stated in an affidavit that he personally observed the dock starting in 1968.
According to Newland's deposition, defendant obtained permission from her to install a dock on
the property that she eventually sold to plaintiffs. Defendant claims that this is untrue. Since
1987, defendant has used the dock for mooring his boat.
Plaintiffs filed a complaint requesting a declaratory judgment setting forth limitations to
defendant's use of the easement and requesting a permanent injunction restraining defendant
from improper use. Specifically, plaintiffs alleged that defendant wrongfully abused the
easement and interfered with plaintiffs' quiet possession by installing and maintaining a dock,
using the premises for temporary storage of boating equipment, using the premises for
recreational purposes, and by attempting to exercise general dominion over the subject premises.
Plaintiffs filed a motion for summary disposition, pursuant MCR 2.116(B) and (C)(10),
requesting that the trial court grant a permanent injunction providing that defendant be ordered
to remove his dock from plaintiffs' property and be enjoined from further abuse of the easement,
and requested that the trial court declare the subject easement to be for ingress and egress only.
In addition, plaintiffs contended that access grants only the right of ingress and egress to the lake
and no other right. In response, defendant requested that the motion be denied because the
factual circumstances existing at the time the easement was created show the original grantor's
intent to include the use and placement of a dock at the end of the easement within the scope of
the easement. The trial court entered an order denying plaintiffs' motion for summary
disposition, finding that a genuine issue of material fact existed.
Subsequently, defendant filed a motion for summary disposition contending that the
factual circumstances existing at the time of the creation of the easement show the original
grantor's intent to include not only the right of ingress and egress, but also to include use and
placement of the dock located in Lake Fenton at the end of the easement. Defendant further
contended that the scope of an easement is defined by both the language of the easement and the
circumstances existing at the time of the creation of the easement. Defendant requested that the
trial court enter a judgment declaring the easement in question to include riparian rights for the
benefit of the dominant tenement holders and reflecting the right to continue the historical
placement of the dock at the end of the easement and that defendant has the right to store the
dock on the easement. In response, plaintiffs filed a position statement contending defendant's
motion should be denied because riparian rights only attach to riparian land and cannot be
conveyed separate from riparian land, and because easements should be construed according to
language within the four corners of the grant.
A hearing was held on defendant's motion for summary disposition. Defendant argued
that no material fact was in question because the creator of the easement intended the easement
holder to have use of the dock, which was there and was being used at the time the easement was
granted. Plaintiffs argued that the easement was limited to ingress and egress. The trial court
made the following findings:
I think the Little case that has recently come out, again, indicates to us that
we should consider not only the language but the surrounding circumstances. . . .
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[T]he Court believes the intent of the parties was to have a dock, not 10
docks, a dock. So the ruling of the Court today based on everything submitted is
that Mr. Lennox may have a dock at the end of the easement here. I'm not
prepared to go further and add on that he can store the dock, that he can have
picnic tables or anything else. But he does have an easement for ingress and
egress including, but not limited to the right to maintain the dock, have a boat on
the end of the dock, and use this during the seasons as is appropriate.
The trial court entered a judgment reflecting its findings that the intent of the original grantor of
the easement, Edith Crane, was to include riparian rights for the use by the dominant tenements
of the easement and that this was shown by the language of the reservation creating the easement
and the use and existence of a dock on the lake end of the easement at the time of the creation of
the easement. Therefore, the trial court entered a judgment that the easement was for ingress and
egress, and included riparian rights, not limited to the right to maintain a dock on the lake end of
the easement.
Plaintiffs' first issue on appeal is that because the language of the easement was
unambiguous the trial court should not have considered the circumstances existing at the time the
easement was granted in determining the intent of the grantor of the easement. We agree.
In Little v Kin, 249 Mich App 502, 507; 644 NW2d 375 (2002) (Little I), this Court
provided the applicable standard of review:
The extent of a party's rights under an easement is a question of fact for
the trial court, which we review for clear error. Dobie v Morrison, 227 Mich App
536, 541-542; 575 NW2d 817 (1998). However, we review de novo a trial court's
decision regarding a motion for summary disposition in a declaratory judgment
action. Michigan Educational Employees Mut Ins Co v Turow, 242 Mich App
112, 114; 617 NW2d 725 (2000); Dobie, supra at 538. We also review de novo a
trial court's rulings on equitable issues, including the grant of injunctive relief.
Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 9; 596 NW2d 620
(1999); Dobie, supra at 541-542.
This Court in Little I, supra at 511-512, indicated that the rights of nonriparian owners should be
determined by examining the language of the easement and the circumstances existing at the
time of the grant. In Little v Kin, 468 Mich 699; 664 NW2d 749 (2003) (Little II), our Supreme
Court affirmed Little I, supra, but noted that, when the language of the easement grant is plain
and unambiguous, a directive to consider circumstances existing at the time of the grant was
inconsistent with well-established principles of legal interpretation. Little II, supra at 700 n 2.
The Supreme Court provided that "[w]here the language of a legal instrument is plain and
unambiguous, it is to be enforced as written and no further inquiry is permitted." Id. at 700,
citing Gawrylak v Cowie, 350 Mich 679, 683; 86 NW2d 809 (1957). In addition, our Supreme
Court provided "[i]f the text of the easement is ambiguous, extrinsic evidence may be considered
by the trial court in order to determine the scope of the easement." Little II, supra.
Pursuant to Little II, supra, we must first examine whether the text of the easement grant
is unambiguous, because, if the text is unambiguous, the trial court erred in taking into account
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the circumstances existing at the time of the grant. The grant of the easement provides that it is
"for the purpose of ingress and egress to and from the premises in which they may have an
interest to the water's edge of Lake Fenton." A later deed in the chain of title conveys an
easement "for access to the lake for the [back] lot owners in 'Cranewood No. 1.'" Plaintiffs
contend that the plain language, clearly, does not grant defendant the right to construct or
maintain a dock or to permanently moor a boat. While defendant contends that the use of the
term "to the water's edge" creates an ambiguity regarding whether riparian rights were granted to
defendant because this is traditional phrasing for the creation of riparian rights, defendant cites
no applicable authority for this contention.1 We find that the easement grant is stated in plain
and unambiguous language and, thus, the trial court was not permitted to inquire into the
circumstances surrounding the grant of the easement or existing at the time the easement was
granted.
Erecting or maintaining a dock near the water's edge is a riparian or littoral right.2
McCardel v Smolen, 404 Mich 89, 94; 273 NW2d 3 (1978); Thom v Rasmussen, 136 Mich App
608, 612; 358 NW2d 569 (1984). "'[A] "riparian owner" is one whose land is bounded by a river
and "riparian rights" are special rights to make use of water in a waterway adjoining the owner's
property.'" Little I, supra at 504 n 2, quoting 78 Am Jur 2d, Waters, ยง 30. There is no dispute
that plaintiffs are riparian owners with riparian rights. And, there is no dispute that defendant's
rights with regard to the lake are those rights granted in the easement. Reservation of a right of
way for access does not give rise to riparian rights, but only a right of way. Thompson v Enz,
379 Mich 667, 685; 154 NW2d 473 (1967). "[W]hile full riparian rights and ownership may not
be severed from riparian land and transferred to nonriparian backlot owners, Michigan law
clearly allows the original owner of riparian property to grant an easement to backlot owners to
1
We note that defendant does cite Hilt v Weber, 252 Mich 198, 218; 233 NW 159 (1930), which
is not applicable to the present circumstances because it discusses language regarding the extent
of a purchaser's riparian rights, and not the scope of an easement. We also note that in
Hoisington v Parkes, unpublished opinion per curiam of the Court of Appeals, issued March 12,
1999 (Docket No. 204515), a panel of this Court determined that similar language, "ingress and
egress to and from the shore and water of Sand Lake," did not convey riparian rights. In
addition, in Miller v Petersen, unpublished opinion per curiam of the Court of Appeals, issued
December 27, 1989 (Docket No. 111358), a panel of this Court determined that an easement
given to backlot owners for access or ingress and egress "to a lake does not give rise to a right to
build a dock or permanently moor a boat at the end of that easement." We use these opinions as
a guide, and view them as persuasive, because of the limited case law, but note that unpublished
opinions are not binding under the rules of stare decisis. MCR 7.215(C)(1).
2
"Strictly speaking, land which includes or abuts a river is defined as riparian, while land which
includes or abuts a lake is defined as littoral." Thies v Howland, 424 Mich 282, 288 n 2; 380
NW2d 463 (1985), citing McCardel v Smolen, 404 Mich 89, 93 n 3; 273 NW2d 3 (1978).
Although, the easement in question involves land that abuts a lake, we will use the term
"riparian," which is often used, in court proceedings, to describe both land that abuts a river and
land that abuts a lake. See id.
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enjoy certain rights that are traditionally regarded as exclusively riparian." Little I, supra at 504505.
In Little I, supra, the dispute involved a riparian property owner and neighboring
nonriparian property "backlot" owners regarding the scope of the backlot owners' right to enjoy
the lake. Id. at 504. The original owner granted an easement to backlot owners with full riparian
rights, and the riparian property owners argued that they had superior rights in an attempt to limit
the nonriparian owners' use of the easement. Id. In Little I, supra, the easement was not limited
to ingress and egress, but rather provided "'for access to and use of the riparian rights to Pine
Lake.'" Id. at 505 (emphasis omitted). This Court determined that the trial court erred in ruling
as a matter of law that the defendant's rights were limited to access, and remanded to the trial
court to determine the scope of the easement. Id. at 514-516.3
In Delaney v Pond, 350 Mich 685, 686-687; 86 NW2d 816 (1957), our Supreme Court
addressed an easement that provided for access to a river and the shore of a lake. The Supreme
Court agreed with the lower court, which had stated:
"[T]he extent of the easement is limited by specific words to the right of
access . . . . This right of access is clearly intended to permit the plaintiffs to
exercise their right to enjoy the waters . . . . however, to enjoy the use of the
adjacent waters cannot logically be construed as a right to use the lands . . . for
purposes other than those related to the use of the water itself.
"[P]laintiffs do have an unrestricted right of access to the use of the waters
. . . for the purpose of swimming, fishing, bathing, wading and boating. It does
not follow that the plaintiffs have the right to sun bathe on the defendants'
property, for it cannot be said that sun bathing is a use of the adjacent waters, nor
can it be said that permanent mooring a boat is included in the right to fish and
boat. Obviously plaintiffs have the right to use the easement for the purpose of
carrying their boats to the waters of the river and lake, but they cannot store them
permanently on the easement way, nor attach them to stakes driven into the land."
[Id. at 687-688 (quoting the lower court opinion).]
In Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985), a twelve-foot section in front
of some frontlot property was dedicated as a "walk" that was for the use of all subdivision
owners, including the backlot owners. The "frontlot" owners sought to enjoin the backlot
owners from building a dock and the backlot owners argued that they were riparian owners as
coowners of the "walk." Id. at 286-288. The Thies Court summarized the law in the following
way:
3
As noted, the Supreme Court affirmed this case, but modified a directive of this Court with
regard to determining the scope of an easement. Little II, supra at 700 n 2.
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Persons who own an estate or have a possessory interest in riparian land
enjoy certain exclusive rights. These include the right to erect and maintain docks
along the owner's shore, and the right to anchor boats permanently off the owner's
shore. Nonriparian owners and members of the public who gain access to a
navigable waterbody have a right to use the surface of the water in a reasonable
manner for such activities as boating, fishing and swimming. An incident of the
public's right of navigation is the right to anchor boats temporarily. [Id. at 288
(citations omitted).]
But the Thies Court also noted that frontlot owners could not prevent the backlot owners from
erecting a dock or permanently anchoring their boats if these activities were within the scope of
the plat's dedication. Id. at 289. "The intent of the plattors must be determined from the
language they used and the surrounding circumstances." Id. at 293. The Thies Court
determined, upon examination of the plattor's intent, that the backlot owners had only an
easement interest, a dock was not within the scope of the dedication and, thus, the backlot
owners could not maintain a dock. Id. at 294-295.
We find that the plain and unambiguous language of the easement in question does not
grant defendant riparian rights and, as such, does not grant defendant the rights enjoyed by
riparian owners. Defendant's argument that the language "to the water's edge of Lake Fenton"
raises a question of fact regarding whether riparian rights were granted is misguided. The plain
language of the easement does not suggest that the right to maintain a dock is within the scope of
the easement. See Thom, supra at 612. The terms ingress and egress to the water's edge do not
show an intent to grant a right to construct and maintain a dock, a right typically reserved to
riparian owners. See Thies, supra at 294. Defendant's allowed use of the land, pursuant to the
easement, is clearly defined by the terms of the easement and must be confined to the plain and
unambiguous terms of the easement. The plain and unambiguous terms of the easement do not
grant the dominant estate the right to maintain a dock or permanently moor a boat. The trial
court, in making its determination, took into account the circumstances existing at the time of the
grant and, therefore, erred. See id. Even if the trial court was only interpreting the language of
the easement, its findings were clearly erroneous because nothing in the plain and unambiguous
language of the easement permits or grants defendant the right to erect and maintain a dock or to
permanently moor a boat at the end of the easement. See Little I, supra at 507. The easement
was created for access or ingress and egress to the lake and cannot be expanded. Consequently,
the trial court erred in granting summary disposition to defendant and denying plaintiffs' motion
to have the subject of the easement declared for access,4 and ingress and egress only.5
4
We note that access includes "a right to use the surface of the water in a reasonable manner for
such activities as boating, fishing and swimming," and a right to temporarily anchor boats.
Thies, supra at 288.
5
Because of our resolution, it is unnecessary to address plaintiffs' remaining issues on appeal.
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Peter D. O'Connell
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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