JAMES DEL GENIO V JACK A MYERSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JAMES DELGENIO, JACKIE DELGENIO, DICK
SCHMIDT, and JEAN SCHMIDT,
July 31, 1998
JACK A. MYERS, BETTY J. MYERS, LUIS G.
RAMIREZ, MARY L. RAMIREZ, MARK J.
WILSON, WILMA WILSON, MARK D. MATHIS,
and PEGGY A. MATHIS,
Allegan Circuit Court
LC No. 95-018866 CZ
Before: Sawyer, P.J., and Kelly and Smolenski, JJ.
Plaintiffs James Delgenio, Jackie Delgenio, Dick Schmidt and Jean Schmidt appeal as of right
from an order granting judgment in favor of defendants Jack A. Myers, Betty J. Myers, Luis G.
Ramirez, Mary L. Ramirez, Mark J. Wilson, Wilma Wilson, Mark D. Mathis and Peggy A. Mathis.
We reverse in part, affirm in part and remand.
In the 1960s, the Recreation Subdivision Corporation (hereinafter the corporation), as plattor,
established a subdivision abutting Hutchins Lake. The dedication of the plat and the restrictive covenant
referenced therein were recorded in August of 1964. The restrictive covenant provided that the owners
of lots one through seven and forty-one through fifty-one had a right-of-way over Outlot B for
purposes, inter alia, of access to the lake. From 1970 until the commencement of this suit, some back
aintained, for the majority of the time, at least one dock off the outlot. In 1995, plaintiffs,
owners of front lots seven and eight, filed the instant action contending that the dedication of the plat and
the restrictive covenant referenced therein did not afford the back-lotters the right to erect and maintain
a dock off the outlot. After a bench trial, the trial court ruled that the language of the dedication of the
plat and ¶ 11 of the recorded restrictive covenant afforded the owners of lots one through seven and
forty-one through fifty-one the right to erect and maintain a dock off Outlot B. The court further
ordered that such a dock had to be “erected and maintained in a reasonable manner so as to not
interfere with the use and enjoyment of the adjoining front lot owners’ property rights in Lot 7 and Lot
8.” Having determined that the “right to access” language of the dedication of the plat and ¶ 11 of the
restrictive covenant included the right to erect and maintain a dock, the trial court stated that it no longer
needed to determine whether the Myers had obtained a license to erect and maintain a dock or a
On appeal, plaintiffs claim that the trial court erred in determining that the Schmidts lacked
standing to assert that defendants’ use of outlot B was in violation of the provisions of the restrictive
covenant. We agree. This Court reviews de novo a trial court's decision in an equity action. City of
Holland v Manish Enterprises, 174 Mich App 509, 511; 436 NW2d 398 (1988). “However, we
attach great weight to the findings of the trial court and sustain those findings unless convinced that had
we heard the evidence in the first instance we would have been compelled to make findings contrary to
those actually made. In other words, we set aside the trial court's findings only where they are clearly
erroneous. If the trial court's findings of fact are not clearly erroneous, then we review the record de
novo to determine whether the equitable relief granted was appropriate i light of those facts.” West
Michigan Park Ass'n, Inc v Fogg, 158 Mich App 160, 171; 404 NW2d 644 (1987), citing Attorney
General v John A Biewer Co, Inc, 140 Mich App 1, 12-13; 363 NW2d 712 (1985).
Because ¶ 10 of the restrictive covenant grants subdivision lot owners the right to enforce “the
covenants” of the restrictive covenant and because this paragraph does not indicate that enforcement is
limited to the preceding paragraphs, i.e., ¶¶ 1-9, the Schmidts, as subdivision lot owners, may enforce ¶
11 of the restrictive covenant.
Plaintiffs further claim that the trial court clearly erred in finding that the general access easement
provided in the dedication of the plat and the restrictive covenant referenced therein included the right of
the lot owners referenced in ¶ 11 of the restrictive covenant to erect and maintain a dock off the outlot.
“[O]wners of land abutting any right of way which is contiguous to the water are presumed to
own the fee in the entire way, subject to the easement. . . . Thus, [the] plaintiffs are presumed to own
the fee in the walk running the front of their lots unless the plattors intended otherwise.” Thies v
Howland, 424 Mich 282, 293; 380 NW2d 463 (1985). Although the Myers’ property abuts the right
of way granted to them over Outlot B, which is contiguous to the water, the corporation, as the plattor
and grantor, through ¶ 11 of the restrictive covenant, reserved some interest in the fee to Outlot B.
Therefore, the Myers may not maintain their claim that they may erect a dock on the basis of riparian
ownership. Similarly, because the other defendants’ properties do not abut Outlot B, riparian rights do
not arise in their ownerships of their individual properties.
However, lot owners who do not enjoy riparian rights may still prevail on their claim to erect a
dock if such an activity falls within the scope of the plat’s dedication. Thies, supra at 289. Regardless
of the way’s course (i.e., parallel or perpendicular to the shoreline), the intent of the plattors in granting
the easement must be ascertained. See id. at 293 and Jacobs v Lyon Twp (After Remand), 199 Mich
App 667, 672; 502 NW2d 382 (1993).
Jack Myers testified that he, upon request, received from the corporation, as owner of the
outlot, a written assurance to erect and maintain a dock off the outlot. However, it is not logical to find
that the plattors, on the one hand, intended to grant to the grantees the added right of erecting and
maintaining a dock off Outlot B through the dedication of the plat and the restrictive covenant
referenced therein, but, subsequently, found it necessary to provide the Myers with an additional
document purporting to give them the already reserved and granted rights.
In addition, the testimony of Myron Sale, who had been involved in the determination of the
terms of the dedication, purporting that he had never told the back-lotters that their right-of-way to the
lake included a right to build a dock off Outlot B is also indicative that the plattors had not intended to
include a right to erect and maintain a dock off the outlot. Also, Sale’s testimony that the back lots
initially sold for less than half of the amount of the front lots is also indicative that the plattors did not
intend to grant the back-lotters the right to erect and maintain a dock off the outlot. Rather, given that
front lots one through seven are considerably smaller than the great majority of back lots forty-one
through fifty-one, but nonetheless cost twice as much strongly indicates that the plattors intended to
convey exclusive riparian rights to the front-lotters. See Thies, supra, 424 Mich 294 n 8.
While we acknowledge that the trial court found correctly that Sale, a former officer of the
corporation, had, at least, acquiesced to the building and maintenance of the Myers’ dock, this
acquiescence does not unequivocally reflect an intent to include a right to erect and maintain a dock in
the language of the dedication of the plat and the restrictive covenant referenced therein. Although such
a finding, by itself, would not be clearly erroneous, we note that the trial court did not take into account
any of the other surrounding circumstances in ascertaining the intent of the plattors in granting the
respective lot owners the general right of access to the lake. Therefore, based on all the surrounding
circumstances, we are convinced that if we had heard the evidence in the first instance, we would have
been compelled to make findings contrary to those actually made. Thus, the trial court clearly erred in
finding that the dedication of the plat and the restrictive covenant referenced therein provided the
grantees with a right to erect and maintain a dock off Outlot B.
Although the trial court did not address plaintiffs’ claim that those documents, likewise, did not
permit the lot owners to permanently moor boats off the submerged land next to the outlot, this Court
may properly consider it. See Carson Fischer Potts & Hyman v Hyman, 220 Mich App 116, 119;
559 NW2d 54 (1996). Because we determine that the plattors had not intended to grant the lot
owners the right to erect and maintain a dock off the outlot, it logically follows that they, likewise, did
not intend to extend the grantees the right to permanently moor boats off the submerged land next to the
Plaintiffs next claim that the trial court erred in not including additional orders defining the scope
of the easement right as part of its judgment. However, we hold that this issue is unpreserved because
plaintiffs failed to move for a clarification of the trial court’s order below.
Last, plaintiffs argue that if this Court concludes that the language of the dedication of the plat
and the restrictive covenant referenced therein does not evince an intent on the part of the plattors to
extend the lot owners the right to erect and maintain a dock off the outlot, we should make a dispositive
decision on the other issues raised by the evidence. We acknowledge that we may properly consider
an issue raised before the trial court and pursued on appeal although the trial court failed to rule on the
issue. See id. Here, in its opinion, the trial court stated that its disposition of the case, i.e., the dismissal
of plaintiffs’ claim with prejudice on the basis of the dedication of the plat and the restrictive covenant
referenced therein, did not require a determination as to defendants’ alternative claims that the Myers
had obtained a right to place a dock off the outlot through prescription or a license. Therefore, this
issue is properly before this Court.
Because the corporation, as grantor and owner of the servient estate, could not unilaterally
modify the scope of the easement by giving the Myers a license in direct contravention to the easement
rights contained in the dedication of the plat and the restrictive covenant referenced therein, the
corporation lacked the authority to give the Myers such a license. See Mumaugh v Diamond Lake
Area Cable TV Co, 183 Mich App 597, 606; 456 NW2d 425 (1990) (“[a] license is merely authority
or permission to do some act . . . upon the licensor’s land without having any permanent interest
Defendants, however, also argue that the Myers obtained an easement by prescription. A
prescriptive easement arises from a use of the servient estate which is open, notorious, adverse, and
continuous for a period of fifteen years. Goodall v Whitefish Hunting Club, 208 Mich App 642, 645;
528 NW2d 221 (1995). Here, the only issue is whether there was an adverse use spanning fifteen
continuous years. Because we have determined that the dedication of the plat and the restrictive
covenant referenced therein did not include the right to erect and maintain a dock off Outlot B, the
corporation could not unilaterally give permission to modify the scope of the easement. Schadewald v
Brule, 225 Mich App 26, 36; 570 NW2d 788 (1997). Therefore, the Myers’ use could not have been
permissive from the onset. Rather, the use was adverse to the interests of the front-lotters because the
dedication of the plat and the restrictive covenant referenced therein did not intend for back-lotters to
enjoy the riparian right of dock erection and maintenance. See Whitefish, supra at 645-646.
Because there existed conflicting evidence as to whether the Myers’ adverse use of the dock
had continued for the statutory period, we hold that this case should be remanded for a determination of
whether the Myers showed this by clear evidence. See Cheslek v Gillette, 66 Mich App 710, 714;
239 NW2d 721 (1976).
Although plaintiffs do not address the issue of estoppel, defendants do, having pleaded it as an
affirmative defense. Defendants again addressed this claim at trial. However, their theory under
promissory estoppel is untenable because the evidence adduced at trial did not show that plaintiffs made
any inducing promises to them. See Joerger v Gordon Food Service, Inc, 224 Mich App 167, 173;
568 NW2d 365 (1997).
As to the defense of equitable estoppel, this doctrine arises where “(1) a party by
representations, admissions, or silence, intentionally or negligently induces another party to believe facts;
(2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if
the first party is allowed to deny the existence of the facts.” In re Beglinger Trust, 221 Mich App
273, 276; 561 NW2d 130 (1997), citing Soltis v First of America Bank-Muskegon, 203 Mich App
435, 444; 513 NW2d 148 (1994).
Because the Mathises were aware of potential litigation as to the back-lotters exercise of the
disputed right before purchasing their property, they may not now persuasively argue that they had been
induced by plaintiffs’ intentional or negligent conduct to believe that they would affirmatively possess a
right to maintain a dock off the outlot.
Similarly, the Myers may also not avail themselves of this theory because plaintiffs, who
purchased their properties more than fifteen years after the Myers’ purchase of the lots and erection of
the dock, could not have induced the Myers, with their intentional or negligent conduct, to believe in
facts which would have been prejudicial to them.
The Wilsons, likewise, may not use this defense because Mark Wilson’s reliance upon the belief
that he could use a dock off the outlot was not justifiable. Wilson admitted that he had been aware that
he could not have erected a third dock off the outlot because of the limited space; instead, he “figured”
that he could sufficiently get along with the back-lotters who owned the docks to be able to share it.
Because it would not be reasonable to purchase a lot on the presumption that one’s personality would
ensure dock usage, we conclude that Wilson did not justifiably rely on the belief, induced by plaintiffs,
that dock usage would be guaranteed.
Likewise, Ramirez testified that he had merely presumed that he would be permitted to install a
dock at the outlot because of the right of access to the lake and existing docks. This reliance was not
reasonable or justifiable because the mere existence of the dock did not necessarily signal that the back
lotters owned the existing docks. Indeed, under ¶ 11 of the restrictive covenant, the plattors, i.e., the
corporation, could have erected and maintained the docks that Ramirez noticed off Outlot B.
Reversed in part, affirmed in part and remanded. We do not retain jurisdiction. No costs,
neither party having prevailed in full.
/s/ David H. Sawyer
/s/ Michael R. Smolenski
I concur in the result only.
/s/ Michael J. Kelly