ANTHONY TURNER V SOUTH TWIN LAKE RESORT INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY TURNER, ANN TURNER, RUDY
HOWARD, a/k/a RUBY HOWARD and OKEY
HOWARD,
UNPUBLISHED
March 17, 2000
Plaintiffs/CounterdefendantsAppellees,
and
WILLIAM R. BERRY, JR., MELISSA WEGNER,
RONALD D. VANZANDT and LAURIE A. DAVIS,
Joined Party Plaintiffs-Appellees,
v
No. 211381
Lenawee Circuit Court
LC No. 96-007082-CH
SOUTH TWIN LAKE RESORT, INC.,
Defendant/Counterplaintiff-Appellant.
and
ERIC V. SLUSHER, DIANA LYNN SLUSHER,
ROBERT E. SLUSHER, KATHRYN K. SLUSHER,
MATTHEW C. SLUSHER and KATHY J.
SLUSHER,
Defendants-Appellants.
Before: Murphy, P.J., and Hood and Fitzgerald, JJ.
PER CURIAM.
-1
In this easement and zoning case, defendants appeal as of right the order (1) enjoining
defendants from improving or maintaining the easement, (2) establishing a governing body to oversee
maintenance and improvements of the easement, (3) apportioning maintenance cost of the easement to
defendants, and (4) determining that defendants’ use of their conference center is a local zoning
ordinance violation. We affirm in part and reverse in part.
The Lutheran Outdoor & Retreat Ministry of Michigan owned the Tecumseh Woods Lutheran
Camp in Tipton, Michigan. The camp contained a private dirt road that joined with the county road.
The property was divided into seven different parcels and offered for sale at auction. Parcels one, five,
six and seven contained a private road that was recorded as an easement for a common driveway. All
parcels were zoned commercial-recreational (CR) at the time of their sale. At the time of trial, however,
only two parcels were zoned CR, including defendants’ parcel, and the other two parcels were rezoned
for agriculture and residential use. Defendants purchased parcel seven, which is a sixty-nine acre parcel
at the end of the easement, and plaintiffs own the other parcels adjacent to the private road.
Defendants formed a family-owned corporation known as South Twin Lake Resort, Inc.
Defendants’ parcel contains five cabins that are two-bedroom duplexes, a thirty-two by seventy foot
lodge (conference center), and an outdoor worship area (amphitheater). The resort offers swimming,
boat rental, hiking, volleyball, horseshoes, canoes, bonfires, and a playground. The resort has seven
rental units, each unit accommodating up to eight people. The conference center has a capacity of 260
persons, and is rented for different occasions.
Plaintiffs filed suit complaining about defendants’ maintenance of the private road and their
operation of the conference center. Following a two-day bench trial, the trial court found that
defendants’ operation of the conference center was in violation of the Franklin Township zoning
ordinance and enjoined defendants from unilaterally maintaining or improving the private road. The
court also awarded the Turners $1,200 for damage done to their property as a result of defendants’
grading of the private road.
Defendants first argue that the trial court erred when it enjoined them from maintaining and
improving the easement. We agree. In cases involving equity, this Court’s review is de novo. Walker
v Bennett, 111 Mich App 40, 45; 315 NW2d 142 (1981). However, this Court reviews for clear
error the findings of fact supporting the trial court’s decision. Webb v Smith, 224 Mich App 203, 210;
568 NW2d 378 (1997).
An easement is the right to use the land of another for a specified purpose. Bowen v Buck &
Fur Hunting Club, 217 Mich App 191, 192; 550 NW2d 850 (1996). “An easement does not
displace the general possession of the land by its owner, but merely grants the holder of the easement
qualified possession only to the extent necessary for enjoyment of the rights conferred by the easement.”
Schadewald v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997). The land served or benefited
by an appurtenant easement is the dominant tenement, and the land burdened by an appurtenant
easement is the servient tenement. Id. In the present case, all five parcels are both dominant and
-2
servient. Each of the parties uses the private road over the easement as their means of ingress and
egress to their property.
This Court, in Lakeside Associates v Toski Sands, 131 Mich App 292; 346 NW2d 92
(1983), explained the relative rights of a dominant and servient tenement:
1. That the conveyance of a right of way gives to the grantee not only a right to
an unobstructed passage at all times over defendant's land, but also such rights as are
incident or necessary to the enjoyment of such right of passage.
2. The owner of the way, where its limits are defined, has not only the right of a
free passage over the traveled part, but also to a free passage on such portions of the
way as he thinks proper or necessary.
3. The owner of the fee subject to an easement may rightfully use the land for
any purpose not inconsistent with the rights of the owner of the easement.
4. The rights of the owner of the easement are paramount, to the extent of the
grant, to those of the owner of the soil.
5. The owner of the soil is under no obligation to repair the way, as that duty
belongs to the party for whose benefit it is constructed.
6. What may be considered a proper and reasonable use by the owner of the
fee, as distinguished from an unreasonable and improper use, as well as what may be
necessary to plaintiff's beneficial use and enjoyment, are questions of fact to be
determined by the trial court or jury. [Lakeside Associates, supra at 299-300.]
See also Harr v Coolbaugh, 337 Mich 158; 59 NW2d 132 (1953) (an owner of a servient estate may
make any use of the premises that is not inconsistent with the easement).
The owner of the easement, not the servient estate, has a duty to maintain the easement in a safe
condition to prevent injuries to third parties. Kesslering v Chesapeake & Ohio Railway, 437 F Supp
267 (ED Mich, 1977); Morrow v Boldt, 203 Mich App 324; 512 NW2d 83 (1994). “The party who
enjoys the easement is entitled to maintain it so that it is capable of the use for which it was given. That
party, however, is not entitled to make such drastic changes so as to increase the burden of the
easement over the property involved.” Carlton v Warner, 46 Mich App 60, 62; 207 NW2d 465
(1973). In this case, the trial court incorrectly enjoined defendants from exercising their right to maintain
their easement over plaintiffs’ property. The trial court may determine what reasonable improvement
and repairs are required, but denying defendants the right to make even reasonable maintenance and
improvements is inequitable. See id.
Defendants also argue that the trial court erred by creating a governing body, comprised of the
easement’s adjacent landowners, to determine the maintenance and improvements to be made to the
easement. We agree. As stated above, a dominant owner has the right t make reasonable
o
-3
improvements and maintenance to their easement. Although the establishment of a governing body to
determine issues of maintenance and improvements of the easement may provide the court with a long
term solution, it does not ensure equity. Here, four of the five voting members of the governing body
are plaintiffs, and two of those members own property that is zoned differently than defendants’
property. The trial court’s solution, although creative, cannot ensure that the governing body will
approve reasonable maintenance and improvements proposed by defendants. Therefore, we reverse
that part of the order enjoining defendants from maintaining and improving the easement, as well as that
part of the order establishing a governing body, and remand to the lower court for a determination of
what reasonable maintenance and improvements defendants may make.
Defendants next assert that the trial court erred by apportioning sixty percent of the cost of
maintenance of the easement to defendants. We disagree. “Maintenance costs of an easement used
jointly by both the dominant and servient owners are to be paid in proportion to each party’s use.”
Bowen, supra at 194. Here, evidence was presented that defendants own the property furthest from
the county road and operate a resort on their property. Based on this evidence, we cannot conclude
that the trial court clearly erred in finding that defendants’ proportionate use of the road is sixty percent.1
Furthermore, we find that the trial court’s damage award of $1,200 to the Turners was not clearly
erroneous.. In rendering its decision to award damages to the Turners, the court, in essence,
determined that defendants’ maintenance of the private road was too burdensome on the servient
tenement. Henkle v Goldenson, 263 Mich 140, 143; 248 NW 574 (1933).
Defendants also claim that the trial court incorrectly determined that defendants’ operation of
their conference center violated the local zoning ordinance.2 Review of zoning cases is de novo, but we
accord great weight to the findings of the trial court because of its opportunity to see and hear the
witnesses. We will not upset the trial court’s determination unless our review of the record convinces us
that we would have reached a different result. Talcott v City of Midland, 150 Mich App 143, 146;
387 NW2d 845 (1985). See also Macenas v Michiana, 433 Mich 380; 446 NW2d 102 (1989).
The rules of statutory construction apply also to ordinances. Gora v Ferndale, 456 Mich 704,
711; 576 NW2d 141 (1998). In construing a statute, provisions of the statute must be read in the
context of the entire statute so as to produce a harmonious whole. Weems v Chrysler Corp, 448 Mich
679, 699-700; 533 NW2d 287 (1995); Fremont Twp v McGarvie, 164 Mich App 611, 615; 417
NW2d 560 (1987). This Court, in Fremont Twp, supra, explained the method of interpreting a zoning
ordinance.
The underlying principle of the proper construction of a zoning ordinance is to discover
and give effect to the intent of the lawmaker. Bangor Twp v Spresny, 143 Mich App
177, 179; 371 NW2d 517 (1985). When interpreting the language of an ordinance to
determine the extent of a restriction upon the use of the property, the language must be
interpreted, where doubt exists, in favor of the property owner. Id. at 614.]
The Franklin Township zoning ordinance divides property into several different uses. Of
particular importance in this case is the CR district. CR-zoned property “is intended for those areas
oriented towards outdoor recreation uses and at the same time interested in the preservation of the
-4
natural features of the land.”3 Franklin Township zoning ordinance §§ 12.02, 13.01. The permitted
principle uses allowed in the CR district are:
1.
Boat launching facilities, marinas, including the sale of gasoline, oils and
accessory parts, service of boats and motors, docking and berthing space and
supporting facilities to dry dock and store boats and motors when not in use.
2.
Public and private parks, playgrounds, picnic areas and beaches.
3.
Establishments containing indoor tennis courts, handball courts, swimming
pools, gymnasiums, and health clubs.
4.
Indoor ice skating and roller skating rinks.
5.
Ski lodges and resorts.
6.
Restaurants, only in conjunction with the principle recreational use.
7.
Accessory buildings and uses customarily incidental to the above Permitted
Principle Uses. [Franklin Township zoning ordinance § 13.02.]
The ordinance specifically states that “[a]ny uses not expressly permitted are prohibited.” Franklin
Township zoning ordinance § 13.02.
The trial court found that the conference center was the principle or core business of the
property “under the guise of a resort.” Defendants advertised the property as a separate banquet hall
and not as a resort, and offered catering service in the center. The hall accommodated approximately
two hundred sixty people, whereas the cabins accommodated only fifty-six people. Defendants
acknowledged that the conference center is used only sparingly by cabin occupants. Although
defendants claimed that the cabin rentals generate more income than the conference center, defendants
failed to produce actual records to support their claim. Under these circumstances, we cannot conclude
that we would have reached a different result than did the trial court. Accordingly, we agree with the
trial court’s conclusion that the conference center is in violation of the zoning ordinance.4
Defendants argue in the alternative that their use of the conference center is an accessory use of
the permitted principle use of “a resort.” However, in light of our conclusion that the principle use of the
property was a conference center, this argument is without merit. We note, however, that even if we
were to conclude that a resort is the principle use of the property, we would reject defendants’
argument. An accessory use must be “customarily incident” to the principle use as a resort. The intent
of commercial-recreational property is for “those areas that are oriented towards recreational uses” and
“the preservation of natural features of the land.” See Franklin Township zoning ordinance § 13.01.
The conference center is used for weddings, proms, company picnics, anniversary parties, golf outings,
seminars, and retreats. The uses for which defendants are using the conference center are not
“customarily incident” to outdoor activities and natural preservation.
-5
Affirmed in part and reversed in part.
/s/ William B. Murphy
/s/ Harold Hood
/s/ E. Thomas Fitzgerald
1
The trial court noted that, if circumstances changed, defendants could seek changes to the
apportionment of costs.
2
We note that at oral argument on this matter the parties represented that the ordinance was recently
amended. Any amendment, however, is not relevant to our resolution of this issue.
3
In contrast, the permitted principal uses of property zoned C-1 include “theaters, dance halls,
assembly halls or other similar places of assembly.”
4
The trial court ordered that the conference center “shall be used only by persons who stay at the
resort and their legitimate guests. There shall be no advertisements for Defendants’ property as a
banquet hall. . . .”
-6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
