ROBERT DOUGLAS V JANET HARTING
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT DOUGLAS and ROBERTA
DOUGLAS, Trustees of the DOUGLAS FAMILY
TRUST, and DENIS STEVENS, Trustee of the
ETHEL STEVENS REVOCABLE TRUST,
UNPUBLISHED
December 18, 2008
Plaintiffs-Appellees,
v
JANET HARTING, MICHAEL HILL, JOHN
DILWORTH, THOMAS SCHUMM, and DIDI
SCHUMM,
No. 277892
Livingston Circuit Court
LC No. 06-022350-CH
Defendants-Appellants.
Before: Hoekstra, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
Defendants appeal as of right from the trial court’s order granting plaintiffs’ motion for
summary disposition pursuant to MCR 2.116(C)(10). We conclude that the trial court properly
determined that plaintiffs had standing to challenge defendants’ use of the terminus of a public
alley (“Alley No. 3”). We also conclude the trial court did not err in finding plaintiffs
established that defendants’ use of the terminus of Alley No. 3 exceeded the public dedication.
However, we agree with defendants that plaintiffs failed to prove that defendants’ use of the
terminus of Alley No. 3 significantly harmed plaintiffs’ enjoyment of their property rights as to
establish a private nuisance. Thus, except as to the finding of private nuisance, we affirm the
trial court’s final order.
I. Basic Facts and Proceedings
This case arises from defendants’ use of a dock and boat hoist at the terminus of public
alley, Alley No. 3, that ends at the edge of Portage Lake in the Baughn Bluff subdivision in
Pinckney. Plaintiffs, the Douglas Family Trust and the Ethel Stevens Revocable Trust, own
lakefront lots adjacent to Alley No. 3. Defendants are owners of back lots in the subdivision;
their properties do not border Portage Lake. The subdivision plat states that “the streets and
alleys as shown on said plat are hereby dedicated to the use of the public.”
The dock at the terminus of Alley No. 3 has existed for many years, before many or all of
the parties involved in this action acquired their properties. Although none of the parties asserted
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who originally installed the dock, and none of the defendants claimed ownership of the dock,
defendants generally understood that the dock was available for area residents who wished to use
it, and that four families in the neighborhood, i.e., defendants, were the principal users.
Defendant John Dilworth installed and removed the boat hoist every year. Defendants generally
moored their boats to poles mounted along the edge of the lake at the terminus of Alley No. 3 at
the beginning of the season and left them there until the season’s end, and they would use the
boat hoist and dock throughout the boating season.
Plaintiffs never attempted to stop defendants from using the dock and boat hoist before
April 2006. Defendant Dilworth stated that plaintiff Denis Stevens gave him permission to enter
his property when he installed and removed the boat hoist.
In May 2005, this Court issued a decision in another case involving a different dock in
the same Baughn Bluff subdivision. In that case, Smith v Livingston Co Rd Comm, unpublished
opinion per curiam of the Court of Appeals, issued May 5, 2005 (Docket No. 251523), this Court
considered whether a dock at the end of Alley No. 5 in the Baughn Bluff subdivision was within
the scope of the plat’s dedication. The Court held that it was not, explaining:
In the instant case, the parties have presented no evidence regarding the
uses of Alley No. 5 at the time of its dedication. Thus, the trial court was left with
the presumption from Thies [v Howland, 424 Mich 295, 296; 380 NW2d 463
(1985)], that “the platter intended to give access to the water and permit the
building of structures to aid in that access.”
We note, however, that where such access is given to the public generally,
it is the governmental entity that has been deemed to have accepted the dedication
which, “on behalf of its citizens, is entitled to build [a dock] at the end of [the
alley] to aid the public’s access.” Id. at 295-296. Private docks are not
permissible. Higgins Lake [Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83,
104; 662 NW2d 387 (2003)]. Thus, although in such situations the public may
use the access point made available by the dedication to make use of the surface
of the water in such reasonable manners as boating, fishing, swimming, and the
temporary mooring of boats, . . . members of the public, including lot owners of
this subdivision, are not themselves entitled to erect docks for private use. Thies,
supra at 288; Higgins Lake, supra at 103-104. That right is reserved to the
governmental entity found to have accepted the dedication . . . . No individual or
group of individuals, whether members of the general public or subdivision lot
owners, may install a dock. That right and its attendant obligations falls to either
the governmental entity that has accepted the dedication of Alley No. 5, or the
subdivision lot owners as a whole. [Smith, supra, slip op at 7.]
After Smith was decided, plaintiffs’ attorney sent defendants a letter dated April 26, 2006,
that included a copy of this Court’s decision in Smith, informed defendants that they had no legal
right to maintain the dock and boat hoist at the terminus of Alley No. 3, and demanded that
defendants remove the dock and boat hoist, or legal action to compel removal would be taken.
After defendants failed to remove the dock and boat hoist, plaintiffs filed this action
alleging that the subdivision plat did not permit defendants to construct or use a private dock or
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boat hoist off any of the public alleys in the subdivision. Plaintiffs requested declaratory and
injunctive relief enjoining defendants from keeping the dock and boat hoist at the terminus of
Alley No. 3. Plaintiffs also asserted a claim for trespass, alleging that the boat hoist encroached
“approximately 3 feet onto submerged riparian land owned by the Douglas trust,” and interfered
“with the ability to pilot boats moored along the dock located off of the Douglas Trust Parcel.”
Additionally, plaintiffs alleged a claim for private nuisance, alleging that defendants disrupted
plaintiffs’ quiet use and enjoyment of their property by holding picnics, parties, and bonfires on
Alley No. 3 and the dock, by failing to remove dog droppings in the alley, and by interfering
with plaintiffs’ ability to pilot boats moored off their property. Plaintiffs also alleged that
defendants would remove the dock and boat hoist from the water and leave it on Alley No 3 and
the Douglas property during the winter, causing damage to the grass.
Defendants moved to dismiss plaintiffs’ complaint for lack of standing, alleging that only
the township had standing to bring an action for the allegedly improper use of a dock and boat
hoist adjacent to a public alley, and that plaintiffs lacked any personal or special interest related
to these activities. Plaintiffs responded that their property interests were impaired by defendants’
dock and boat hoist, and that the dock’s combined width was greater than the boundaries of
Alley No. 3, thus encroaching on the submerged land of the Douglas property. Plaintiffs
additionally asserted that defendants and their guests crossed the Stevens property without
permission when they used the dock and boat hoist. Further, plaintiffs argued that they had a
personal stake in this action because defendants’ use of the dock and boat hoist constituted a
private nuisance that interfered with plaintiffs’ enjoyment of their properties and diminished their
property values. The trial court denied defendants’ motion to dismiss.
The parties thereafter filed cross-motions for summary disposition under MCR
2.116(C)(10). Relying on defendants’ deposition testimony, plaintiffs asserted that there was no
genuine issue of material fact that defendants used a private dock and boat hoist at the end of
Alley No. 3 to permanently moor their boats throughout the boating season. Plaintiffs also
alleged that defendant Dilworth damaged the Douglas property when he drove over the lawn to
remove the boat hoist in 2006, and submitted a photograph depicting tire tracks across the lawn
in support of this claim.
Plaintiffs argued that they were entitled to equitable relief to prevent disruption of
plaintiffs’ use and enjoyment of their property and riparian rights. They also argued that
defendants’ entries onto the Stevens property’s lawn and the Douglas property’s submerged land
established a trespass, and that defendants’ use of the dock and boat hoist constituted a private
nuisance that diminished the use and enjoyment of their property. Plaintiffs did not present any
documentary evidence in support of their allegations that defendants held picnics or parties, or
built bonfires, in Alley No. 3.
Defendants argued in response that plaintiffs failed to establish an actual injury resulting
from defendants’ activities, and that their claims for declaratory and injunctive relief were based
solely on their position that defendants’ activity was illegal. They argued that plaintiffs were not
entitled to a private remedy for conduct that might be illegal, but which did not constitute a
trespass or private nuisance.
In their own motion for summary disposition, defendants argued that plaintiffs failed to
establish that defendants’ activities substantially interfered with plaintiffs’ property rights, and
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emphasized that there was no factual support for plaintiffs’ allegations that defendants or their
guests held picnics, bonfires, or parties on Alley No. 3 or the dock, other than defendant
Dilworth’s annual use of the dock to watch fireworks. Defendants also emphasized that it was
undisputed that the dock and boat hoist had been used for many years, without objection by
plaintiffs, and that Robert Douglas previously consented to Dilworth’s placement of the boat
hoist.
The trial court expressed its agreement with this Court’s decision in Smith, supra, noting
that it involved the same subdivision, and granted plaintiffs’ motion for summary disposition.
The court enjoined defendants from using, maintaining, or installing a dock or boat hoist in
Portage Lake at the terminus of Alley No. 3, and awarded plaintiffs damages of $1.00 each for
their claims of trespass and private nuisance.
II. Legal Analysis
Defendants argue that the trial court erred in granting summary disposition for plaintiffs
and in denying their own motion for summary disposition. Defendants primarily contend that
plaintiffs lacked standing to seek an injunction against their use of the dock and boat hoist on the
ground that such use is not authorized by the plat.
Plaintiff sought, in part, declaratory relief to determine the propriety of defendants’ use of
Alley No. 3. In regard to the issue of standing, it must be noted that “[t]he power to enter
declaratory judgments neither limits nor expands the subject matter jurisdiction of a court; the
court must have jurisdiction over the claims on which the plaintiff seeks relief.” Associated
Builders and Contractors, supra. Further, “[d]eclaratory judgments have the force and effect of,
and are reviewable as, final judgments.” MCR 2.605(E).” Thus, the question whether a party has
standing is a question of law that this Court reviews de novo. Higgins Lake, supra at 89.
To estalish standing, “[t]here must be an actual case in controversy, and the party seeking
relief must be an interested party.” Id. In other words, a party “must show that it has a
substantial interest that will be detrimentally affected in a manner distinct from that of the
citizenry at large.” Id. at 89-90, quoting Franklin Historic Dist Study Committee v Village of
Franklin, 241 Mich App 184, 187-188; 614 NW2d 703 (2000). The plaintiff “must demonstrate
an actual injury or likely chance of immediate injury that is different from that of the general
public.” Higgins Lake, supra at 90, quoting Franklin Historic Dist, supra.
The plaintiff in Higgins Lake, supra, was a nonprofit corporation comprised of lakefront
property owners seeking to restrict public use of “road ends,” i.e., the terminus of roads that
ended at the lake. Id. at 91. The plaintiff asserted “that the alleged overuse of, and concentration
of persons and watercraft, at the road ends is affecting its members’ enjoyment of the lake as
well as their property values.” Id. This Court noted that the plaintiff’s purpose was “to protect
the lake, the watershed, and the interests of its members,” and held that the plaintiff had
“standing to sue as a non-profit membership organization litigating to vindicate the interest of its
members.” This Court held that the plaintiff had standing to litigate the scope of the public
dedication in question and the permissibility of the defendants’ activities concerning riparian and
navigable rights. Plaintiffs’ situation here is analogous to the owners association in Higgins
Lake, supra. Instead of an association of lakefront property owners collectively litigating the
general use of road ends within a subdivision, plaintiffs are individual subdivision lot owners
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litigating the use of a particular alley that directly affects their property. Accordingly, we
conclude that plaintiffs have standing to challenge defendants’ use of the end of Alley No. 3.1
Given our conclusion that plaintiffs have standing to challenge defendants’ use of Alley
No. 3, we now consider whether plaintiffs successfully established that defendants’ activities are
outside the scope of the public dedication of Alley No. 3. Public roads, streets, and alleys that
end at the edge of navigable waters “are presumed to provide public access to the water.”
Higgins Lake, supra at 102. Persons claiming that a dedication provides more than “mere
access” bear the burden of proving the broader scope of the dedication. Id. Consequently, as
this Court explained in Higgins Lake, supra at 103-104, the use of the end of Alley No. 3 is
limited:
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. . . . Lounging, sunbathing, picnicking, and the
erection of boat hoists at the road ends are prohibited as beyond the scope of the
dedications. . . . [O]ne, nonexclusive dock may be erected at each road end to
facilitate public access to the water. Members of the public are entitled to moor
boats temporarily as an incident of the public’s right of navigation. . . . Because
the plat language and the applicable law dictate that the road ends are intended to
afford access to the public, private docks are not permitted at the road ends.
[Citations omitted.]
Defendants admitted in their depositions that they kept their boats moored to the dock throughout
the entire boating season. They also admitted that defendant Dilworth installed and removed the
boat hoist every year. These activities are beyond the scope of the public dedication of Alley
No. 3.
Defendants argue that the dock is permissible because it is a public dock, or that there is
at least a question of fact on this issue that precludes summary disposition for plaintiffs. The
Court in Higgins Lake held that one “nonexclusive” dock is permissible to facilitate general lake
access, but that “private” docks are not permitted. Defendants did not present any evidence that
1
Defendants also argue that plaintiffs’ claims are barred by the doctrine of laches. Laches is a
“tool of equity that may remedy ‘the general inconvenience resulting from delay in the assertion
of a legal right which it is practicable to assert.’” Wayne Co v Wayne Co Retirement Comm, 267
Mich App 230, 252; 704 NW2d 117 (2005), quoting Dep’t of Pub Health v Rivergate Manor,
452 Mich 495, 507; 550 NW2d 515 (1996). The doctrine of laches is generally not recognized
where the claimant’s delay has not prejudiced the opposing party. Wayne Co, supra. Laches
does not apply here because plaintiffs did not unreasonably delay by waiting until this Court
clarified the public access issue in Higgins Lake, supra, and by waiting for this Court to address
a similar issue involving the same subdivision in Smith, supra. Additionally, defendants have
not shown that they were prejudiced by any delay in the initiation of plaintiffs’ action. Although
defendants generally allege that they bought their property in the subdivision with the
expectation that they could use Alley No. 3 for seasonal boat storage, the change in this situation
resulted from developments in the law, not plaintiffs’ actions.
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the dock was installed or maintained by a public authority. The holding in Higgins Lake is based
on the premise that individual members of the public may not monopolize the road ends, e.g., by
permanently mooring boats there, because such use would impair the general public’s ability to
use the road ends for lake access. The Court observed that “if a few individuals build their own
docks or keep boat hoists at the road ends, they are effectively appropriating the public road ends
for their own private use, which would impede the public’s access to the lake.” Id. at 112 n 11.
Here, defendants’ use of the dock constituted use of the alley end by a small group of
individuals. There is no evidence supporting defendants’ assertion that the dock is a public dock.
Consequently, the trial court did not err in granting plaintiffs summary disposition and entering
an order declaring is essence that defendants may not install or maintain a private dock or boat
hoist or moor their watercraft at the terminus of Alley No. 3.2
Defendants also argue that plaintiffs failed to establish a private nuisance. Plaintiffs’
nuisance claim is based on allegations that congestion caused by defendants’ boat use interfered
with plaintiffs’ riparian rights and impaired plaintiffs’ own use and enjoyment of the lake.
Plaintiffs specifically claim defendants’ use of the terminus of Alley No. 3 results in crowding;
however, plaintiffs submit no evidence to establish crowding occurs. Plaintiffs also aver that
their enjoyment of their properties has been diminished by the emotional distress caused by this
litigation, and that the value of their properties has diminished because of defendants’ use of
Alley No. 3. Although there is no dispute that defendants used the terminus of Alley No. 3, we
cannot conclude that plaintiffs presented sufficient evidence to conclude that defendants’ illegal
use of the terminus of Alley No. 3 resulted in significant harm to plaintiffs’ enjoyment of their
property rights. We therefore conclude that plaintiffs failed to show that defendants’ use of
Alley No. 3 for season-long moorings constituted a private nuisance.
Defendants last argue that plaintiffs failed to prove trespass because defendants were
given permission to moor boats on plaintiff’s land. We disagree.
Recovery for trespass to land is available only upon proof of an unauthorized direct or
immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of
exclusive possession. Terlecki v Stewart, 278 Mich App 644, 654-655; 754 NW2d 899 (2008).
Plaintiffs’ trespass claim was based in part on photographic evidence that defendant Dilworth
drove across the lawn of the Stevens property. There is no evidence that defendants had
permission to drive across plaintiffs’ property. We cannot conclude that the trial court’s damage
award of $1.00 for this trespass is not erroneously.
2
At oral argument, the parties did not seriously dispute that the trial court’s declaratory order, if
valid, can be enforced through injunctive relief. We also note that under MCR 2.605(F) that,
“[f]urther necessary or proper relief based on a declaratory judgment may be granted, after
reasonable notice and hearing, against a party whose rights have been determined by the
declaratory judgment.”
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We affirm the trial court’s April 19, 2007 final order except to vacate paragraph L, which
relates to plaintiffs’ claim of nuisance. Plaintiffs may tax costs.
/s/ Joel P. Hoekstra
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
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