PROTO-CAM INC V 940 MONROE LLC
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STATE OF MICHIGAN
COURT OF APPEALS
PROTO-CAM INCORPORATED and TEN NINE
CORPORATION,
UNPUBLISHED
December 16, 2004
Plaintiffs-CounterdefendantsAppellees,
v
No. 251387
Kent Circuit Court
LC No. 00-008231-CZ
940 MONROE LLC and PIONEER
INCORPORATED,
Defendants-CounterplaintiffsAppellants.
Before: Hoekstra, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendants appeal from the trial court’s judgment granting plaintiffs permanent
injunctive relief and damages for trespass. This case involves an easement granted to plaintiff
Proto-Cam (“plaintiff” herein) by Charlevoix Club III, Inc. The trial court held that this
easement was an exclusive easement denying even the grantor and its successors and assigns
from using the easement. We affirm.
Proto-Cam was granted an easement over a portion of vacated Walbridge Street in Grand
Rapids by Charlevoix Club. Defendants 940 Monroe and Pioneer are successors to Charlevoix
Club.
In June 1994, Charlevoix Club sought a rezoning of its property from light industrial to
commercial. Proto-Cam feared that the increased traffic on Walbridge Street would interfere
with its industrial operations and objected to the re-zoning at three different hearings before the
board of zoning appeals. The board ultimately granted Charlevoix Club’s request with the
condition that Walbridge Street not be used by the Charlevoix Club “for client or employee
parking or for any uses connected to their occupancy or their use of the building.” To effectuate
this condition, Charlevoix Club granted Proto-Cam an easement over Walbridge Street. The
easement was drafted by Charlevoix Club’s attorney, Robert Wardrop, and signed by the Club’s
secretary and treasurer, Michael Webb, on January 16, 1995.
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After the easement was signed, Charlevoix Club gave William Tingley, president of
Proto-Cam, advance notice before using the easement. Walbridge Street was vacated by the City
of Grand Rapids in 1998. From that time forward, Proto-Cam maintained Walbridge Street.
Problems arose when defendants’ predecessor-in-interest used Walbridge Street for its
construction activities. Plaintiff requested that this use of its easement stop. When defendants
persisted in using the street, plaintiff filed a complaint for injunctive relief. Plaintiff sought a
temporary restraining order and a preliminary injunction to prevent defendants from using
Walbridge Street. The trial court denied plaintiff’s motion. It permitted defendants to drive on
Walbridge Street, but enjoined them from parking on the street.
Defendants first contend that the trial court erred in considering extrinsic evidence in
interpreting the grant of easement. The specific language at issue is as follows:
1.
Grant of Easement. Grantor grants to Grantee an exclusive
easement for ingress, egress and parking over Parcel E.
2.
Use of Parcel E. Grantor and Grantee intend that the usage of
Parcel E shall be exclusively reserved for Grantee for the purposes of ingress,
egress and parking. Parcel E shall not be used for any other purpose other than as
set forth herein. Neither Grantor nor Grantee shall erect any buildings or other
structures on Parcel E and Grantor shall not interfere with Grantee’s use of
Parcel E for the purposes set forth herein.
We review the trial court’s decision to admit and consider extrinsic evidence for an abuse
of discretion. Chmielewski v Xermac, Inc, 457 Mich 593, 613-614; 580 NW2d 817 (1998). The
trial court did not abuse its discretion in considering extrinsic evidence of the grantor’s intent.
Extrinsic evidence may be considered when, after examining the text of the easement, a court
determines that the easement is ambiguous. Little v Kin, 468 Mich 699, 700; 664 NW2d 749
(2003).
The trial court found the text of the 1995 grant of easement to be ambiguous. The court
stated that the word “exclusive,” as found in the 1995 easement, could have three possible
meanings: (1) that plaintiff can only use the easement for ingress, egress, and parking, (2) that
the grantor agrees not to grant an easement to another party for ingress, egress, and parking, or
(3) that use for such purposes by anyone other than plaintiff, including use by the grantor, is
excluded.
This finding is consistent with the Idaho Supreme Court’s holding in Latham v Garner,
105 Idaho 854; 673 P2d 1048 (1983), which, though not binding, is instructive. The court found
that the use of the phrase “exclusively for their use” in an easement “lends itself, without
contortion, to a number of interpretations.” Id. at 858. We agree with the Idaho Supreme Court
and with the trial court in the present case that the easement in question was ambiguous.
Therefore, the trial court was correct in considering extrinsic evidence to determine the intent of
the original parties to the easement in using the word “exclusive.”
We review the trial court’s interpretation of the term “exclusive” de novo. Morley v
Automobile Club of Michigan, 458 Mich 459, 465; 581 NW2d 237 (1998).
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The trial court examined each of the pertinent passages of the easement to determine
which of the three possible interpretations of “exclusive” appeared most likely. The court found
that paragraph 2 of the easement quoted above is most consistent with the third possible
interpretation – the interpretation advocated by plaintiffs.
The language of that section strongly supports plaintiffs’ assertion – that the easement is
for the use of plaintiff only – especially when viewed in light of the extrinsic evidence presented
by plaintiff and considered by the court.
The court found several pieces of extrinsic evidence particularly compelling. Michael
Webb, the signer of the easement, testified that the easement was intended to implement the
terms and conditions of the variance and that he always gave plaintiff notice before using the
easement. Additionally, Webb testified regarding a plan his company had for the B & G
building. His company wanted to renovate the building and use the north lot for parking. To
access this lot, visitors would use Walbridge west of the railroad right of way. To ensure that
plaintiff’s easement was not disturbed, Webb’s company planned to block off Walbridge east of
the railroad right of way. Thus, Webb’s conduct demonstrates an understanding of plaintiff’s
exclusive rights that is consistent with plaintiff’s assertion that its rights excluded the use of the
grantor and its successors and assigns.
The trial court also found the circumstances leading to the grant of easement by
Charlevoix Club to be demonstrative of the grantor’s intent. Charlevoix Club sought rezoning
from light industrial to commercial over plaintiff’s objections. The City of Grand Rapids
ultimately granted Charlevoix Club’s variance request, but the variance specifically excluded the
Charlevoix Club from using Walbridge Street “for client or employee parking or for any uses
connected to their occupancy or their use of the building.” At trial, defendants admitted that the
easement was granted to comply with the limitations in the city’s variance. Moreover, several
letters written by Wardrop indicate an intent to comply with the city’s limitations. In October
1994, Wardrop wrote a letter to plaintiff’s attorney expressing his client’s intent to abide by the
limitations in the variance. Subsequently, on November 9, 1994, Wardrop wrote the city
planning department to say that his client intended to carry out the intent of the variance. Two
months later, the grant of easement was presented to plaintiff. In a December 30, 1994, letter to
city commissioner George Heartwell, Wardrop wrote: “The owners [Charlevoix Club] have
unconditionally granted Proto-Cam an easement for ingress, egress and use over that portion of
vacated Walbridge Street adjacent to the fitness center from Ottawa Avenue to 32 feet west of
the railroad tracks. This property will become useless to its owners and is dedicated to use by
Proto-Cam.”
Defendants are correct in asserting, and the trial court noted, that exclusive easements are
disfavored by the law. The Idaho Supreme Court noted in Latham, supra at 856, “Because an
exclusive grant in effect strips the servient estate owner of the right to use his land for certain
purposes, thus limiting his fee, exclusive easements are not generally favored by the courts.” A
predisposition against exclusive easements does not, however, prevent courts from finding their
existence. Defendants argue that use of the term “exclusive,” alone, is insufficient to exclude the
fee owner of the servient estate from reasonable use of the easement. This is not, however, an
instance in which use of the term “exclusive” is the only evidence of intent. The text of the
easement itself specifically restricts the grantor from interfering with the grantee’s use and
reserves the easement’s use to the grantee. Furthermore, as noted, there was extrinsic evidence
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of intent to make the easement exclusive. The trial court properly concluded that, despite the
law’s disfavor of exclusive easements, the 1995 easement was indeed exclusive.
Next, defendants contend that the trial court erred in awarding damages for trespass
because the court’s interpretation of “exclusive” was erroneous. We review the trial court’s
determination of damages following a bench trial for clear error. Alan Custom Homes, Inc v
Krol, 256 Mich App 505, 513; 667 NW2d 379 (2003). The trial court did not err in awarding
plaintiff damages in the amount of $8,900 for defendants’ repeated use of the easement. The
court ordered defendants not to park on plaintiff’s easement. Defendants repeatedly violated that
order. Moreover, the trial court properly concluded that the easement was exclusive and,
therefore, deprived the grantor of all rights to use the easement. As a result, defendants’ repeated
use of the easement was trespass. The trial court did not err in awarding plaintiff damages.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
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