FRANK J TOMECEK JR V ANDREW LUCIAN BAVAS
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STATE OF MICHIGAN
COURT OF APPEALS
FRANK J. TOMECEK, JR., and JANIS H.
TOMECEK,
FOR PUBLICATION
July 3, 2007
9:15 a.m.
Plaintiffs/Counter-DefendantsAppellees/Cross-Appellants,
v
ANDREW LUCIAN BAVAS, JOYCE BAVAS,
INEZ HILDEGARD BAVAS, STANLEY
FRANCIS STASCH, JULIE STASCH, MARTHA
STASCH, PATRICIA M. CURTNER, TIMOTHY
V. MCGREE, PETER A. STRATIGOS, ALICE M.
STRATIGOS, and PAMELA KRUEGAR,
Defendants/Counter-PlaintiffsAppellants/Cross-Appellees,
and
DEVEREAUX BOWLY, JR., MICHAEL L. JONES,
LAURA L. AVERY, JULIA E. PIETRAS, DAVID
N. DERBYSHIRE, ELLEN R. LA FOUNTAIN,
JONATHAN RODGERS, ROYAL KENNEDY
RODGERS, LEE STAHL, III, and SUSAN STAHL,
Defendants-Appellants/CrossAppellees,
and
INDIANA MICHIGAN POWER COMPANY, d/b/a
AMERICAN ELECTRIC POWER COMPANY,
INC., MICHIGAN DEPARTMENT OF LABOR
AND ECONOMIC GROWTH, and BERRIEN
COUNTY DRAIN COMMISSIONER,
Defendants-Appellees,
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No. 258907
Berrien Circuit Court
LC No. 02-003707-CH
and
DANIEL JOHNSON, SCOTT LOESS, KATHLEEN
LOESS, JANE HENKLE, RICHARD CRAGG,
LOIS ZYER, ARTHUR C. MERTZ REVOCABLE
TRUST, PETER LEVY, BENITA LEVY,
LAKESIDE PROPERTY OWNERS, CHIKAMING
TOWNSHIP, ROBERT FORKER, JR., NEW
BUFFALO SAVINGS BANK, FIFTH THIRD
BANK, SHORELINE BANK, SEMCO ENERGY,
INC, SEMCO ENERGY GAS COMPANY, and SBC
AMERITECH CORPORATION,
Official Reported Version
Defendants.
Before: Zahra, P.J., and Hoekstra and Owens, JJ.
ZAHRA, P.J. (dissenting).
I respectfully dissent. Contrary to the conclusions reached by the majority, I conclude
that the Land Division Act, MCL 560.101 et seq., does not permit a court to change substantive
private property rights through the plat-revision process. Further, I conclude that plaintiffs are
not entitled to an easement by necessity, because they have access to the land through an existing
drive easement, that they are free to enjoy it in the same manner as their predecessors always
have, and that they acquired their interest subject to a restrictive agreement—which agreement
would be all but nullified under the majority's opinion. Therefore, I would reverse the trial
court's decision to the extent that it used the Land Division Act to alter the parties' substantive
property interests. I would also affirm the trial court's determination that plaintiffs do not have
an easement by necessity and that the easement in question is a drive easement limited to that
use. I would remand for entry of an order granting defendants' motion for summary disposition.
I. The Trial Court's Decision
The trial court granted plaintiffs' motion for summary disposition delineating the extent
of the central drive easement as platted. The court explained that a declaration of the extent of
plaintiffs' rights in the platted easement was necessary in order to guide plaintiffs' future conduct
and preserve their legal rights. The trial court then concluded that the platted "drive easement"
was unambiguous. It entitled plaintiffs to use the easement as "a [right of] way which grants a
right of passage over land." However, the trial court refused to establish an easement by
necessity for public utilities, thus granting defendants' motion for summary disposition on that
part of the complaint. Finally, the trial court considered whether plaintiffs were entitled to
revision of the plat pursuant to MCL 560.221 and MCL 560.226(1). The trial court noted that
plaintiffs had relied on Feller v Sylvan Twp, unpublished opinion per curiam of the Court of
Appeals, issued January 7, 2000 (Docket No. 212624), in their motion for summary disposition
"for the proposition that the court shall proceed to alter or vacate, correct or revise, the plat or
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part thereof, unless there is a reasonable objection."1 The trial court ultimately concluded that
plaintiffs met the burden necessary, such that a revision of the plat, to include a utility easement
coexistent with the central drive easement for the benefit of Lot 2, was warranted. The trial
court observed that defendants "have already run utility lines under their own [south] drive
easement" and, therefore, it found plaintiffs' argument, that defendants could not reasonably
object to plaintiffs' request to amend or revise the plat to allow plaintiffs to run utility lines under
the central drive easement, to be "very compelling." Further, citing Yonker v Oceana Co Rd
Comm, 17 Mich App 436; 169 NW2d 669 (1969), the trial court also stated that defendants had
not
submitted any admissible evidence which would support a reasonable objection to
[p]laintiffs' request to revise the plat, nor have they offered any admissible
evidence of any reasonable objection which would be of any value to the public.
All of the objections asserted by [d]efendants relate [only] to private concerns and
involve purely private interests.
The trial court thus granted plaintiffs' motion for summary disposition, ruling that plaintiffs "may
revise the plat to include a utility easement over the central drive easement for the benefit of Lot
2."
II. Analysis
On appeal, defendants argue that the trial court erred by allowing plaintiffs to acquire an
interest in property through the plat amendment process under the Land Division Act. The
majority agrees with the trial court, although for different reasons. Whereas the trial court relied
on Feller and Yonker, as well as defendants' own conduct with respect to use of their south drive
easement, the majority relies on its interpretation of the language of the statute. I conclude that
both analyses are erroneous.
A. The Plat-Amendment Process
1. Rules of Statutory Construction
The primary goal of statutory interpretation is to ascertain and give effect to the
Legislature's intent as expressed by the language of the statute. Neal v Wilkes, 470 Mich 661,
665; 685 NW2d 648 (2004). When determining intent, a court must look first at the language of
the statute. If the language is clear and unambiguous, judicial construction is not permitted.
Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998). Unless defined in the
statute, every word or phrase used should be given its plain and ordinary meaning, considering
1
This Court adopted the "reasonable objection" standard in In re Gondek, 69 Mich App 73; 244
NW2d 361 (1976), which was also cited by the trial court, with respect to the property interests
at issue in that case. The majority addresses the trial court's determination with respect to this
issue; however, because I conclude that the Land Division Act did not grant the trial court the
authority to change the substantive property interests at issue in this case, this opinion will not
address whether defendants needed to raise a reasonable objection to the petition.
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the context in which the words are used. Lewis v LeGrow, 258 Mich App 175, 183; 670 NW2d
675 (2003). The court may consult a dictionary to determine the ordinary meaning of undefined
words in the statute. Id. Additionally, when interpreting statutes, every word, phrase, and clause
must be given effect, and an interpretation that would render any part of a statute surplusage or
nugatory should be avoided. Grimes v Dep't of Transportation, 475 Mich 72, 89; 715 NW2d
275 (2006).
2. The Land Division Act Does Not Authorize Changes in Land Interests Through
the Plat-Revision Process
The key provision of the act at issue here, MCL 560.221, provides: "The circuit court
may, as provided in sections 222 to 229[2] vacate, correct, or revise all or a part of a recorded
plat." The trial court adopted the whole of MCL 560.221 as a judicial fiat to alter substantive
property rights; the majority goes further by analyzing the words "vacate," "correct," and
"revise" to authorize a change in the parties' substantive property interests. However, both
analyses fail to note that the statute merely authorizes a change in "all or a part of a recorded
plat."
The word "plat" is defined in the act as "a map or chart of a subdivision of land." MCL
560.102(a). This definition, together with a review of the other uses of the word "plat" in the act
(see Yaldo, supra at 346), leaves no doubt that a plat is merely a two-dimensional description of
physical property interests in some specific place; or, as the majority itself states: "The
provisions of the Land Division Act indicate that a plat filed with a municipality is an official
description of the subdivided parcel represented by the plat and the lots therein." Ante at ___
(emphasis added). Indeed, the majority appears confused when it continues by stating: "First,
the requirements of MCL 560.135 through 560.141 ensure that the map of the subdivision filed
with the final plat accurately reflects the division of the property in the parcel." Ante at ___
(emphasis added). The words "description," "map," and "reflects," as used by the majority, are
consistent with my conclusion that a plat is a map and not, by itself, a determination of
substantive property interests. Moreover, the majority's notion that a "map of the subdivision
filed with the final plat" indicates that the plat is something other than and in addition to a map
of the subdivision (e.g., "filed with"), which by the terms of the statute it is not.
Additionally, the majority did not engage in analyzing the word "plat" as it is used
throughout the statute. Had it done so, it would have found numerous examples within the act
that support my conclusion.
MCL 560.103(3) states: "A survey and plat shall be made when any amendment,
correction, alteration or revision of a recorded plat is ordered by a circuit court." If the statutory
provisions at issue in this case stand for the proposition that a circuit court may change the
2
MCL 560.226(1) provides, in pertinent part: "Upon trial and hearing of the action, the court
may order a recorded plat or any part of it to be vacated, corrected, or revised . . . ."
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substantive property rights of landowners, then a "survey" in order to make a new plat would be
superfluous because the court would have already determined the changed boundaries.
MCL 560.105 conditions the approval of a final or preliminary plat, in part, on
compliance with
(d) The rules of the state transportation department relating to provisions
for the safety of entrance upon and departure from the abutting state trunk line
highways or connecting streets and relating to the provisions of drainage as
required by the department's then currently published standards and
specifications.
* * *
(f) The rules of the department of environmental quality for the
determination and establishment of floodplain areas of rivers, streams, creeks, or
lakes, as provided in this act, as published in the state administrative code.
These provisions indicate that a plat must contain certain markings to show where the state has
established roads, drains, and floodplains, i.e., where they exist on a map, not whether a
landowner has property rights in them. Moreover, interests in property would be subject to
approval of various state agencies—making them arbiters of property interests.
MCL 560.206(1), concerning reconciliation of boundaries within plat, states: "The
surveyor making the plat shall reconcile any discrepancies that may be revealed, so that the plat
as certified to the governing body shall be in conformity with the records of the register of deeds
as nearly as is practicable." (Emphasis added.)
If plats were determinations of substantive property interests, then MCL 560.206(1)
would eviscerate settled property law because property interests would no longer be subject to
precise definition but would, instead, be defined as "nearly as is practicable." This cannot be so.
Property law—most notably a determination of the true hairline between neighboring interests—
is at its core a zero-sum proposition, in which the loss by one is the gain of another if neither can
have more than the constant sum of both. The language of MCL 560.206(1) contemplates
acceptable gray areas. No determination of substantive property interests would permit such a
nebulous result. Interpreting a plat to be the equivalent of a map, as this Court is obligated to do
under the statutory definition of the word "plat," a map may be marginally imprecise yet still
serviceable by putting purchasers on notice of the approximate location of interests.
MCL 560.212 also makes it clear that a plat is nothing more than a description of
preexisting land interests. It states, in pertinent part:
Reference to any land, as it appears on a recorded assessor's plat is
sufficient for purposes of assessment and taxation. Conveyance may be made by
reference to the plat and shall be as effective to pass title to the land so described
as it would be if the premises had been described by metes and bounds. The plat
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or record thereof shall be received in evidence in all courts and places as correctly
describing the several parcels of land therein designated. [Emphasis added.]
Besides the recurring references in MCL 560.212 to a plat as merely a description of
interests in land, analysis of other language within the provision supports this conclusion. First,
the language "metes and bounds" refers to a description of land. See Cramer v Ballard, 315
Mich 496, 500; 24 NW2d 80 (1946). The term "metes and bounds" is also a legal, rather than an
informal, description of land and is the oldest method of land description, dating to colonial
America. 14 Powell, Real Property, § 81A.05[2][a] and [b]. But a description of land is
generally not used as a means of determining rights in interests of the land. 14 Powell, §
81A.05[1][b].3 See also Zurcher v Herveat, 238 Mich App 267, 282; 605 NW2d 329 (1999), in
which this Court recognized that an adequate description of the land is but an essential part,
among several, of a contract for the sale of land. So, rather than dictating that a conveyance took
place, the plat represents merely an adequate description of land—thus fitting the rest of the
language of MCL 560.212 that compels all courts to receive a plat as evidence of a particular
property interest. Such evidence would be persuasive, but so would a recorded deed, or a
mortgage, or other parts of a contract, or some other written instrument purporting to determine
the interests at stake in a case. Allowing the trial court here to use a mere description of property
interests to change substantive property interests would render all but useless other related
written instruments introduced into evidence.
I also disagree with the majority opinion's application of the word "revise," which it uses
as its chief means of supporting the conclusion that the statute gives a trial court plenary
authority to alter substantive property rights.4 On the contrary, I do not find any portion of the
3
"The description of the land should not generally contain a statement of the type of estate or
interest that is being conveyed by the deed. (In other words, it should not include language
describing an estate such as a fee simple or remainder, or another interest such as an easement or
license.)" 14 Powell, § 81A.05[1][b].
4
Specifically, the majority contends:
"Revise" is defined as "to amend or alter" or "to alter (something written
or printed), in order to correct, improve or update" by Random House Webster's
College Dictionary (2000) and as "[t]o go over a thing for the purpose of
amending, correcting, rearranging, or otherwise improving it" by Black's Law
Dictionary (6th ed). Defendants' interpretation of the trial court's authority under
the act, specifically that it could only correct the plat to depict preexisting
substantive property rights, would be persuasive only if the act afforded the court
the authority to vacate or correct a plat. Defendants' interpretation ignores the
term "revise" in the statute and renders the use of that term surplusage or
nugatory. This is impermissible. See Grimes [v Dep't of Transportation, 475
Mich 72, 89; 715 NW2d 275 (2006)]. By affording a trial court the authority to
"revise" a plat, the plain language of the Land Division Act permits a trial court to
act beyond merely correcting errors. Instead, MCL 560.226(1) allows a trial
court to order the alteration of a plat to relinquish an interest, to remove errors or
faults from the plat, or to amend, improve, or update it. Therefore, defendants'
(continued…)
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statute to be surplusage or rendered nugatory by my proposed interpretation. "Revise" means "to
amend or alter" or "to alter . . . in order to correct, improve or update," Random House Webster's
College Dictionary (2000), or "[t]o go over a thing for the purpose of amending, correcting,
rearranging, or otherwise improving it[.]" Black's Law Dictionary (5th ed). Given these
definitions, the statute allows the court to "revise" a plat so that it reflects a change in the
underlying interests, even those arising other than by mistake, such as by abandonment of an
easement or acquisition of an interest by adverse possession or acquiescence (in which case the
revision would be to "update" the plat, as under the Random House definition) or where an
easement by necessity can be established ("amending" it, as under the Black's Law definition).
In any event, there is in this case no underlying change in interests—whether by conveyance,
abandonment, mistake, etc.—that would allow the court to alter the plat to reflect that change.
Finally, given the restrictive covenant that exists in this case, I am troubled by the
majority's conclusion that the Land Division Act allows a circuit court to change substantive
property rights through the plat-amendment process. Plaintiffs do not dispute that they had
notice of the restrictive agreement—it was signed on December 10, 1974, by Jane H. Henkle
(plaintiff Janice H. Tomecek's mother and plaintiffs' predecessor in interest) and notarized. In
fact, Henkle signed the restrictive agreement on the same day she signed the plat, and both
documents were recorded with the Berrien County Register of Deeds and given the same liber
and page number. "Under Michigan law, a covenant constitutes a contract, created by the parties
with the intent to enhance the value of property." Hickory Pointe Homeowners Ass'n v Smyk,
262 Mich App 512, 515; 686 NW2d 506 (2004), citing Terrien v Zwit, 467 Mich 56, 71; 648
NW2d 602 (2002). "When interpreting restrictive covenants, therefore, when the intent of the
parties is clearly ascertainable, courts must give effect to the instrument as a whole." Hickory
Pointe Homeowners, supra at 515-516, citing Cooper v Kovan, 349 Mich 520, 527; 84 NW2d
859 (1957). Thus, the majority's interpretation of the powers granted by the statute place it
directly in conflict when, as in the case here, otherwise enforceable restrictive agreements exist,
which covenants are nullified by such use of the act.
3. The Trial Court's Reliance Is Misplaced
I also do not find persuasive those cases
determination. In Feller, this Court did not find it
determine whether the act gives courts the ability
amending the plat. In Feller, the plaintiffs asked
relocate a road. The plaintiffs submitted
the trial court cited and relied on for its
necessary to engage in statutory analysis to
to change substantive property interests by
the trial court to use the act to vacate and
documentary evidence of the agreement . . . which gave defendants access to their
easement from the relocated Ridge Road. Lack of access to the easement was the
basis of defendants' objection to the vacation and relocation of Ridge Road. Thus,
(…continued)
assertion that the trial court was precluded from considering plaintiffs' petition for
revision of the plat and their limited construction of the trial court's authority
under the Land Division Act lack merit. [Ante at ___.]
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plaintiffs had shown . . . that the basis for defendants' objection had been
eliminated. [Feller, supra, slip op at 2.]
Further, the Court in Feller noted that the easement itself—the defendants' substantive property
interest—was otherwise unaffected by changing the plat. Id. at 3. In this case, defendants'
substantive interest would be affected by changing the plat. Therefore, any reliance by the trial
court on Feller, even if it were binding on this Court, is misplaced.
Similarly, Yonker involved an attempt by the plaintiffs in that case to vacate a county
road. The road had been dedicated to the public and accepted by the county when the area was
platted. A "dedication, gift or grant" of land vests a fee simple interest in the donee. MCL
560.253(1).5 Moreover, the deeds of the plaintiffs—private landowners whose property abutted
the road—"were made specifically subject to or excepted the road. The deeds to the land not
subdivided[6] were made 'subject to highway or roadway, if any.'" Yonker, supra at 440. As
such, no substantive private property interests were at stake as they are in this case.
Notwithstanding that Yonker was decided under the predecessor of the Land Division Act, it is
irrelevant here because the trial court used it for the rule that a defendant's reasonable opposition
to a change in a plat must also be for a "public purpose." Here, the question is whether a circuit
court may change substantive private property interests by changing a plat.
I conclude that, in order to change a plat under MCL 560.221, the trial court would have
first had to determine that plaintiffs prevailed on a claim to change their substantive property
interests in the drive easement, e.g., abandonment, necessity, mutual mistake in the conveyance,
etc. In the absence of such a determination, the trial court should have concluded that it had no
power to use the act to effect a change in such interests.
B. Plaintiffs Are Not Entitled to an Easement by Necessity
Plaintiffs claim on cross-appeal, as they did in the trial court, (1) that they are entitled to
an easement by necessity because the original grantors intended that the owners of Lot 2 would
be able to build a house there, (2) that other jurisdictions and authorities have granted or would
grant similar easements for modern utility use, (3) that Michigan's jurisprudence should evolve
5
MCL 560.253(1) provides:
When a plat is certified, signed, acknowledged and recorded as prescribed
in this act, every dedication, gift or grant to the public or any person, society or
corporation marked or noted as such on the plat shall be deemed sufficient
conveyance to vest the fee simple of all parcels of land so marked and noted, and
shall be considered a general warranty against the donors, their heirs and assigns
to the donees for their use for the purposes therein expressed and no other.
See also Martin v Beldean, 469 Mich 541, 542; 677 NW2d 312 (2004).
6
Part of the road was outside the plat.
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along the same lines as that of other jurisdictions, and (4) that defendants would bear no burden
by such a grant.
This Court reviews for clear error a trial court's determinations relating to the extent of a
party's rights under an easement. Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40;
700 NW2d 364 (2005). However, this Court reviews de novo a trial court's determination
regarding summary disposition. Id. Easements are, generally, limited to a specific purpose.
Dep't of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378-379; 699
NW2d 272 (2005).
Only if the language granting the easement is ambiguous may a court use extrinsic
evidence to determine the scope of the easement. Blackhawk, supra, at 48-49. Further: "The 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."
Unverzagt v Miller, 306 Mich 260, 265; 10 NW2d 849 (1943).
The original grantors' intent, as expressed in the putative conveyances of 1978 and 1984,
is irrelevant here because the language establishing the easement is unambiguous. The plat
labels the easement at issue in this case "Drive Easement" and gives its dimensions. Further, the
"Proprietor's Certificate" on the plat states, in pertinent part, that "the public utility easements are
private easements and that all other easements are for the uses shown on the plat . . . ."
Michigan law recognizes that an easement by necessity may arise when a landowner has
subdivided his or her property but has left himself or herself landlocked. Chapdelaine v
Sochocki, 247 Mich App 167, 172-173; 635 NW2d 339 (2001). In Chapdelaine, this Court also
determined that such an easement would be granted for access to the property unless the
conveyance between the parties indicated their intent not to do so. Id. at 173.
In this case, plaintiffs are not landlocked—they still have access to Lot 2 by the drive
easement. Therefore, because it is not necessary to relieve plaintiffs from being landlocked, no
such easement can arise.
Alternatively, plaintiffs argue, and the majority agrees, that Michigan should adopt what
plaintiffs refer to as a more modern approach to easements by necessity under 1 Restatement
Property, 3d, Servitudes, § 2.15, p 202,7 which reads:
7
More specifically, the trial court cited comment d to this section, which provides, in part:
[T]he increasing dependence in recent years on electricity and telephone
service, delivered through overland cables, justify [sic] the conclusion that
implied servitudes by necessity will be recognized for those purposes. Whether
access for other utilities and services has also become necessary to reasonable
enjoyment of property depends on the nature and location of the property and
normal land uses in the community. [1 Restatement Property, 3d, Servitudes, §
2.15, comment d, p 208.]
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A conveyance that would otherwise deprive the land conveyed to the
grantee, or land retained by the grantor, of rights necessary to reasonable
enjoyment of the land implies the creation of a servitude granting or reserving
such rights, unless the language or circumstances of the conveyance clearly
indicate that the parties intended to deprive the property of those rights.
Our Supreme Court, in Carmody-Lahti, supra at 379 n 42, rejected an overly broad
reading of a similar passage in the Restatement. Although Carmody-Lahti involved a railroad
easement, which the Court distinguished from other types of easements, the Court observed that
easements serve a particular purpose even though the "manner, frequency, and intensity"8 of the
particular purpose might change from time to time, which change would allow the dominant
estate to be reasonably enjoyed. Id. Following Carmody-Lahti, I conclude that easements in
Michigan may change by some degree, but they must retain the particular purpose for which they
were created. In my opinion, the majority impermissibly changes the particular purpose of the
drive easement in this case to include various utilities and sewer service.
Further, the so-called necessity in this case would not exist but for the restrictive
agreement that plaintiffs had full knowledge of before acquiring their interest in the land. Put
another way, plaintiffs now seek an easement by necessity for a situation that they, by way of
their predecessors, created. If the restriction against building on Lot 2 did not exist, and
plaintiffs could build a home using a well and a septic field, then a sewer easement would not be
a necessity. In essence, the majority's creation of a new rule eviscerates an existing contract
agreed to by plaintiffs.
For the foregoing reasons, I would reverse the trial court's determination that the Land
Division Act permits a court to change substantive property rights through the plat-amendment
process and would affirm the trial court's conclusions that the drive easement is limited to a right
of passage and that plaintiffs are not owed an easement by necessity.
/s/ Brian K. Zahra
8
See 1 Restatement Property, 3d, Servitudes, § 4.10, p 592.
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