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Redmond v Van Buren County

Case No. 297349 (MI Ct. App., Jul. 21, 2011)

Plaintiffs Thomas and Patti Tibble appeal as of right the trial court’s order dismissing the Tibbles’ cause of action. This case arises out of a land dispute regarding the Tibbles’ right to access their property located in Block 20 of the Syndicate Park Subdivision (Syndicate Park). The Tibbles own five lots within Syndicate Park and are seeking to access those lots via Lots 1 through 4 of Block 21, upon which there is a locked gate. We reverse.

I. FACTS



Syndicate Park is in South Haven Township, Michigan. Syndicate Park abuts Lake Michigan on the west. St. Joseph Avenue is a jagged road that runs roughly north/south, lies to the east of the subject parcels, and is an unimproved road with a gravel base. Drexel Boulevard runs east/west, north of Block 21 and south of Block 20. Lakeside Avenue runs parallel to Drexel Boulevard, north of Block 20 and south of Block 19. Both Lakeside Avenue and Drexel Boulevard are described as undeveloped, “heavily wooded,” and “pretty rugged.” Testimony indicated that it would be “challenging” and “expensive” to open Drexel Boulevard and, although opening Lakeside Avenue would not be as challenging, it did have one area of a “steep loft.”

According to defendant Paul Hemmeter, the only way to get a vehicle to Blocks 19, 20, and 21 is to go through the gate at Lots 1-4 of Block 21. After passing through the gate, two drives originate on Lots 1-4 of Block 21. The first drive goes west through the properties of Block 21 (the properties of defendants Walter Goodrich, Darren and Lara Malek, Steve Evans, and Richard Shields) and then intersects Drexel Boulevard, thus, providing access to the properties of Goodrich, Malek, Evans, Shields, and defendant Steven Dombrauskas. The second drive goes northwest through Lots 1-4 of Block 21 and intersects Drexel Boulevard.

On September 4, 1956, Dwight and Alice Porter conveyed Lots 1-4 of Block 21 of Syndicate Park to defendant Sand Haven Voluntary Association.
 

 

Judge(s): Per Curiam
Jurisdiction: Michigan Court of Appeals
Related Categories: Property
 
Court of Appeals Judge(s)
Donald Owens
David Sawyer
William Whitbeck

 

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Click the maroon box above for a formatted PDF of the decision.
1968--the court stated that such a private dedication conveyed a fee interest.18 property in syndicate. the tibbles claimed an easement in the private drive entering syndicate with respect to private dedications, the michigan supreme court, in the cases of little v -6- of "1950" on the cement footing of the gate on lots 1-4 indicates that the gate and the private had the right to erect and maintain the gate at syndicate park. the tibbles now appeal the trial malek, lara malek, paul c.w. the trial court's finding is analogous to the michigan supreme court's decision in badeaux. id. martin v beldean, 469 mich 541, 546-548; 677 nw2d 312 (2004). the porters' deed to the sand haven voluntary association demonstrates that the porters dismiss the counts of the tibbles' complaint claiming an easement by implication and necessity. i. facts the trial court entered a judgment of no cause of action and specifically found that defendants haven voluntary association since the porters' conveyance is highly suspect. palmer testified lots 1-4 to all the lot owners of syndicate park whose only means of accessing their property by homeowners association's agent. the articles stated that the purpose of the sand haven shores lot owners in syndicate park whose only means of accessing their property by land was through association as acquiescence to the defendants' use. the trial court summarized its conclusion as july 21, 2011 officials and maintenance of the property by public officials; and (3) use of the property by the testified that the gate and private drives on lots 1-4 were present when he purchased his property of the sand haven shores homeowners association. nonetheless, hemmeter testified that voluntary association transferred automatically when a member of the sand haven voluntary because they used and maintained lots 1-4 and erected the gates. the trial court noted that the according to hemmeter, the sand haven shores homeowners association consisted of voluntary association and, therefore, only to the sand haven voluntary association's members. -9- according to thomas, the sand haven voluntary association did not ask him to become a tibbles, however, did not receive access through the gate. according to thomas tibble, the boulevard are described as undeveloped, "heavily wooded," and "pretty rugged." testimony also lots in block 19. 36 the only difference between badeaux and the present case is defendants contend dedications that are not in a plat, that is, a common-law private dedication. nonetheless, 15 management, and peter a. angelos, does not impede the free exercise of the right of passage."). id. at 647. plaintiffs-appellants, follows: association transferred title to property in syndicate park. included as a defendant in the case. accordingly, the trial court directed the tibbles to add sand id. at 646-647. 25 4 mcl 560.101 et seq. and 2008, $600 and $700 respectively. -5- v no. 297349 and, in both badeaux and the present case, private individuals used and maintained the land at michigan law recognizes both public and private dedications.3 after the conveyance, indians, badeaux's heirs, and others were buried on the land, which was by private individuals in syndicate park. accordingly, we conclude that the trial court did not in 1971. hemmeter testified that he maintained the drives after purchasing property in syndicate park in 1971--and apparently traveled lots 1-4--palmer did not start paying dues to the sand association. err when it found that the porters' failed conveyance to the sand haven voluntary association according to hemmeter, the sand haven shores homeowners association had annual $600 boone v antrim bd of rd comm'rs, 177 mich app 688, 693; 442 nw2d 725 (1989); see also dedications "at least an irrevocable easement in the dedicated land."17 the court explained that a common-law dedication need not be in writing and that in 1853 and 1856, however, could be opened in two ways: either by entering a code on a keypad or by remote control. all a. standard of review clark v grand rapids, 334 mich 646, 656-657; 55 nw2d 137 (1952); see also little, 469 mich retain jurisdiction. the tibbles, being the prevailing party, may tax costs pursuant to mcr association." evans paid the taxes with "association money." and unknown heirs of dwight and alice haven voluntary association could use the drives. moreover, hemmeter stated that he became tibbles did not. the trial court also viewed the porters' deed to sand haven voluntary private individuals. park sub-division, and that the plaintiffs have no such an [sic] easement. easement.27 both badeaux and the present case involved failed conveyances of land to nonlegal entities.29 haven voluntary association until either 2002 or 2003. evans testified that he purchased his syndicate park is in south haven township, michigan. syndicate park abuts lake the fee in the county, in trust for the municipality intended to be benefited, whereas, at common january 1, 1968, conveys a fee interest.19 became a member of the sand haven voluntary association or how a person becomes a member public generally.8 it is the conclusion of the court that the individual defendants have, by however, acquiescence an easement over lots 1-4, block 21 of south haven syndicate intended to dedicate lots 1-4 for private use.32 haven voluntary association created an easement in lots 1-4 by virtue of a private dedication. dewitt, 45 mich app at 581. 12 27 id. at 647. private individuals in syndicate park accepted, maintained, and used lots 1-4. the inscription a public or a private dedication and, thus, an easement over lots 1-4. traditionally, a public shores homeowners association or pay dues to the homeowners association. hemmeter 22 plaintiff, the court noted that courts of this state recognized private dedications before private dedications the issue of who retained the easement by private dedication in lots 1-4 is a more according to hemmeter, there was a "common understanding" that all members of sand nonmembers who purchased property from nonmembers could become members of the sand in 2006 and 2007, the maleks purchased lots 9-19 in block 21 of syndicate park. the conveyance in 1956. palmer, the earliest resident of syndicate park to testify in this case, lots 1-4 appear to have been (and still are) the only means to access blocks 19-22, which nonmembers who purchased property from members could become members of the sand haven basis of martin and little, this court has opined that a private dedication in a plat made before after the plaintiffs proofs were presented at the july 2008 bench trial, the trial court 9:00 a.m. id. drive goes northwest through lots 1-4 of block 21 and intersects drexel boulevard. confirmed that the tibbles were not offered membership to the sand haven shores homeowners that he was uncertain whether a homeowners' association existed at the time he purchased his access their property located in block 20 of the syndicate park subdivision (syndicate park). beach v lima twp, 283 mich app 504, 510; 770 nw2d 386 (2009). s t a t e o f m i c h i g a n common-law dedications.5 /s/ donald s. owens porters do not appear to have intended the exclusion of any landowners in syndicate park blocks could only access their properties by a right of way over lots 1-4. during the summer of 2006, an electronically operated cantilever gate was installed. the gate however, "intent to dedicate [for a common-law dedication] can be gathered from the voluntary association to determine the intent and scope of the porters' dedication because the 2 palmer. hemmeter testified that there were no written procedures governing how a person 31 lots 1-4. thus, we further conclude that the tibbles, like the defendants, had an easement in that the porter's conveyance of lots 1-4 to the sand haven voluntary association created either the bain v fry, 352 mich 299, 305; 89 nw2d 485 (1958). supreme court (intent to dedicate, acceptance and maintenance, and use) to this case, suggests court also held that title to the land passed to the defendant but was nonetheless subject to an porter, 14 enclosed with a fence and marked with a large white cross.22 for lots 1-4 in block 21 because he "never could get the county to make . . . the taxes to the see little v hirschman, 469 mich 553, 557-558; 677 nw2d 319 (2004) (recognizing valid found that defendants could "claim a private dedication for their benefit . . . from the porters" the tibbles from using their easement.37 haven voluntary association received a temporary code, which changed every few months. the in the present case, the trial court found that the porters' failed conveyance to the sand and 19 martin, 469 mich at 547-549. park. at the time of purchase, the seller of the property provided the tibbles with a key to the 2000 baum family trust v babel, 488 mich 136, 147-148; 793 nw2d 633 (2010). their claim of an easement by prescription. however, the tibbles' added two counts, claiming "generally, a valid statutory in 1987, defendant steve evans purchased several groups of lots for a seasonal home in in february 1988, defendant paul hemmeter purchased a home in syndicate park on lots thus, on the property in syndicate park in 1971. indeed, although palmer purchased property in syndicate drives on lots 1-4 were used by private individuals in syndicate park before the porters' failed indicates an intention to dedicate the use of lots 1-4 to the lot owners in syndicate park who maleks paid the $1,500 transfer fee to become members of the sand haven shores homeowners association had a key to the gate. in 1990, hemmeter purchased lots 69-72 in block 20 and 33 heeringa v petroelje, 279 mich app 444, 448; 760 nw2d 538 (2008). public dedications can be either statutory dedications or lots 1-4 in block 21. a "roadway" went through the gate. according to edward palmer, he was robert t. redmond, for publication were first statutorily recognized in the 1925 plat act and later again in the land division act,15 or 2003. this evidence indicates that all landowners in syndicate park--regardless of their lakeside avenue and drexel boulevard from st. joseph avenue. but the department denied the hirschman11 uncertain whether syndicate park had a homeowners' association when he purchased his and after a failed conveyance.30 through 4 of block 21, upon which there is a locked gate. we reverse. and, with regard to id. at 644. syndicate park subdivision, while holding that the tibbles were not included in such private on august 29, 2006, dombrauskas filed articles of incorporation for the sand haven 28 32 a valid common-law appeal as of right the trial court's order dismissing the 20 that the cemetery in badeaux was used by the public and lots 1-4 in the present case are used by more importantly, the tibbles' predecessor in interest had key access through the gate. (2003). badeaux conveyed the same land to other persons, who then conveyed the land to the association. indeed, the notion that the use of lots 1-4 has been limited to members of the sand tibbles' cause of action. this case arises out of a land dispute regarding the tibbles' right to id. at 646-647. conducted an extensive analysis discussing the origins and records of minutes kept by the sand haven voluntary association during meetings. it is dedicating land to public uses effectual at common law; intent to dedicate can be gathered from dedicator could be evinced."28 in badeaux v ryerson, louis badeaux conveyed by warranty deed a complicated matter. a grantor's intent controls the scope of a dedication.34 but he did not pay dues to the sand haven voluntary association until "much later on." moreover, the members of the sand haven voluntary association at the time of the circumstances."35 park in 1988. and, there was testimony that the old and new gates on lots 1-4 were maintained plaintiffs thomas and patti tibble1 3 member of association. indeed, according to defendants, membership in the sand haven gate on lots 1-4 of block 21. according to thomas, the lock on the gate would periodically and 21 is to go through the gate at lots 1-4 of block 21. after passing through the gate, two -3- properties of goodrich, malek, evans, shields, and defendant steven dombrauskas. the second the court emphasized that the public used the land as a cemetery with the on september 4, 1956, dwight and alice porter conveyed lots 1-4 of block 21 of after a second bench trial proceeding, the trial court issued an opinion and order. with areas for public use; and (2) acceptance by the proper public authority."7 19-22 from using lots 1-4 to access their properties. change. either evans or the property caretaker would provide the tibbles with a new key. the tibbles filed an amended and restated complaint, adding sand haven voluntary determined to be void.20 parcel of land known as the "indian burying ground" to the "ottawa tribe of indians" in 1841.21 tibbles' request. porters' failed conveyance are unknown. the trial court did not receive any records with respect according to defendant paul hemmeter, the only way to get a vehicle to blocks 19, 20, that a private common-law dedication was established in the present case.31 although opening lakeside avenue would not be as challenging, it did have one area of a "steep according to thomas tibble, the sand haven shores homeowners association did not defendants-appellees, dedication of land to the public requires the following elements: (1) an intent of the owners of b. legal principles little, 469 mich at 557 n 4. in 1971, defendants edward and alice palmer purchased a home in syndicate park on this state's acceptance of private dedications.13 alice j. palmer, wood tom -1- "neither a grant nor written words are necessary to render the act of and sand haven shores association acquired a right by private dedication to access their lots in consent of the owner both before and after the failed conveyance and had not surrendered the van buren circuit court property in syndicate park in 1987 and was a member of the sand haven voluntary association. opined that the porters did not make a public dedication of lots 1-4. however, the trial court atkinson, trustee, steven w. syndicate park through the electronic gate. the tibbles hope eventually to build a home on their id. 644-645. property. however, he began to pay membership dues to the sand haven voluntary association 17 drives originate on lots 1-4 of block 21. the first drive goes west through the properties of stated that such dedications of land "in a recorded plat" gave the grantees of the private on september 13, 2007, the tibbles sued defendants to obtain access to their property in goodrich, sand haven shores per curiam. little, 469 mich at 561-564. law.2 dedication was understood as "an appropriation of land to some public use, accepted for such use 35 badeaux, 213 mich at 646-647. retained lots 8-12. in either 2002 or 2003, the tibbles were no longer provided a key to the at 557 n 4. and richard shields) and then intersects drexel boulevard, thus, providing access to the 16 37 7 sand haven voluntary association, and he paid membership dues. indeed, at one time, evans van buren county, walter w. gate. 26-55 in block 20. at the time of his purchase, there was a small metal gate with a lock and pin i.e., the plat act of 1967.16 24 hemmeter, steven evans, trustee, see little, 469 mich at 557-563. private dedication by means of the porters' deed, and/or by prescription and/or 8 and martin v beldean,12 bain, 352 mich at 305. park through the gate on lots 1-4 under the theories of prescription, implication, and necessity. in 1995, the tibbles purchased lots 8-12, 21-25, and 56-61 in block 20 of syndicate we reverse and remand for further proceedings consistent with this opinion. we do not michigan on the west. st. joseph avenue is a jagged road that runs roughly north/south, lies to when discussing private dedications, the court conveyance to the ottawa tribe of indians was void and claimed title to the land.24 deed unambiguously indicates that the porters intended to convey lots 1-4 to the sand haven certainly possible that individuals other than members of the sand haven voluntary association -7- 11 in may 2006, evans applied for a permit to install a new gate on lots 1-4 of block 21. 9 issue (that is, the cemetery in badeaux and lots 1-4 in the present case, respectively) both before did not make an explicit distinction between statutory and common-law dedications.14 defendant.23 fee was to be determined by the sand haven shores homeowners association. moreover, 2000 baum family trust, 488 mich at 147-148. intention to dedicate, all facts and circumstances bearing on the question are considered."10 23 id. at 645. created an irrevocable easement in lots 1-4 of block 21 by virtue of a private dedication.33 in either 2002 or 2003. /s/ william c. whitbeck used and maintained lots 1-4 after the porters' conveyance to the sand haven voluntary lots 1-4 by virtue of the porters' private dedication. accordingly, the defendants cannot prevent drexel boulevard, north of block 20 and south of block 19. both lakeside avenue and drexel and the tibbles were provided access through the gate on lots 1-4 from 1995 until either 2002 association and to access their property. the maleks paid additional membership dues in 2007 [sand haven shores homeowners association] or its individual members." the trial court also court's judgment. shores homeowners association. the articles listed dombrauskas as the sand haven shores individual defendants and their predecessors traveled lots 1-4 for more than 15 years, but the little, 469 mich at 557-558. 29 the facts and circumstances here illustrate that the porters intended to dedicate the use of held that the 1841 deed was ineffective to convey title to the ottawa tribe of indians.25 to the sand haven voluntary association's members. and the trial court did not receive any id. at 647. defendants. members of the sand haven voluntary association received remote controls and a permanent error and applies a de novo standard of review when reviewing the trial court's conclusions of the court block 21 (the properties of defendants walter goodrich, darren and lara malek, steve evans, respect to lots 1-4, the trial court opined that it had "no basis to find title by conveyance in the 1 21 the following families: hemmeter, goodrich, evans, shields, dombrauskas, atkinson, and accordingly, we conclude that the porters intended to dedicate lots 1-4 for the use of the (1890). in a 1921 case, the michigan supreme court determined that a common-law public member. the tibbles did not receive correspondence from the sand haven voluntary 18 lc no. 07-560570-ch dedication arose out of a deed conveying property to a nonlegal entity, which the court as the michigan supreme court recently stated, "with regard to an equitable solution. the porters' failed conveyance to the sand haven voluntary association the circumstances."9 10 dombrauskas, edward l. palmer, -8- indicates intent to benefit the lot owners in syndicate park. the private drives originating on law, the act of dedication created only an easement in the public."6 the tibbles own five lots within syndicate park and are seeking to access those lots via lots 1 as previously noted, there is no legal authority in michigan addressing private shores homeowners association by paying a $1,500 transfer fee. and, according to defendants, homeowners association was to provide for routine maintenance and upkeep of property. the heirs of badeaux (the plaintiffs) and the defendant both asserted that the 1841 indicated that it would be "challenging" and "expensive" to open drexel boulevard and, by or in behalf of the public."4 syndicate park, including lots 20-29 in block 21. according to evans, he was a member of the loft." sand haven voluntary association 34 was the sand haven voluntary association's treasurer. as the treasurer, evans received tax bills runs east/west, north of block 21 and south of block 20. lakeside avenue runs parallel to with regard to private dedications from 1835 to 1966, the court haven shores homeowners association by paying an initiation fee. the amount of the initiation higgins lake prop owners ass'n v gerrish twp, 255 mich app 83, 113; 662 nw2d 387 code. utility companies received a semi-permanent code. and guests of members of the sand law dedication.26 addressing private dedications that are not in a plat, that is, private dedications that are akin to property to offer the property to the public for use; (2) acceptance of the owners' offer by public syndicate park to defendant sand haven voluntary association. membership dues. 7.219. id. common-law public dedications. there does not appear to be any legal authority homeowners association, darren dedication of land for a public purpose requires two elements: (1) a recorded plat designating the 26 c. applying the legal principles on lots 1-4 of block 21. according to hemmeter, each member of the sand haven voluntary higgins lake, 255 mich app at 88. membership status with the sand haven voluntary association--used lots 1-4 until the sand plaintiff robert redmond reached a settlement and is no longer a party to these proceedings. "dedications have been established in every conceivable way by which the intention of the private dedications "in [a] plat" after the effective date of the land division act--january 1, id.; badeaux, 213 mich at 646-647; beach, 283 mich app at 510. ii. private dedication private dedication); badeaux v ryerson, 213 mich 642, 646-647; 182 nw 22 (1921) indeed, "all facts and circumstances bearing on the question are considered."36 owner of [an] easement cannot prevent another, even a trespasser, from using the land, if his use thomas r. tibble and patti l. tibble, 30 6 haven voluntary association as a defendant. the trial court also granted defendants' motion to (recognizing valid public dedication). that this court should not look outside the four corners of the porters' deed to the sand haven haven voluntary association required its members to pay dues in either 2002 or 2003. thus, the dewitt v roscommon co rd comm, 45 mich app 579, 581; 207 nw2d 209 (1973). the tibbles applied to the department of environmental quality to open access to dedication. this court reviews a trial court's findings of fact following a bench trial for clear tibbles therefore no longer had access to their property in syndicate park. see id. /s/ david h. sawyer moreover, the evidence at trial established that lots 13-19 and 62-68 in block 20. at the time of their purchase, there was a padlocked gate on applying the requirements for a public common-law dedication articulated by the michigan association or pay dues. the tibbles later sold lots 21-5 and 56-61 to robert redmond but -4- before: sawyer, p.j., and whitbeck and owens, jj. easement held by the public for purposes of using the land as a cemetery by virtue of a common- and c o u r t o f a p p e a l s "the effect of a [public] dedication under [a] statute has been to vest a member of the sand haven voluntary association because he purchased his property from a determined that the sand haven voluntary association was a necessary party that had not been the east of the subject parcels, and is an unimproved road with a gravel base. drexel boulevard richard f. shields, james w. 5 little, 469 mich at 557 n 4, citing village of grandville v jenison, 84 mich 54, 65; 47 nw 600 -2- the tibbles argue that the trial court erred in determining that the individual defendants little, 469 mich at 559; martin, 469 mich at 546-548. association and the unknown heirs of the porters as defendants. the tibbles' complaint retained see murphy chair co v american radiator co, 172 mich 14, 28; 137 nw 791 (1912) ("[t]he 13 land is through lots 1-4. indeed, given the facts of this case, such a conclusion is the most january 1, 1968, conveys an irrevocable easement, whereas a private dedication in a plat after ask him to become a member. the tibbles did not receive correspondence from the sand haven


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