If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KIRK P. BLOOMQUIST, JAMIE L. UNPUBLISHED
BLOOMQUIST, CHERYL D. OLSEN, Individually, March 14, 2024
as Next Friend of VERNON OLSEN, JR., and as
Trustee of the OLSEN LIVING TRUST, MARY
KATHLEEN BRUNN, BETH ANN BRUNN,
DANIEL P. VANDERVEEN, as Trustee of the
DANIEL P. AND BONNIE J. VANDERVEEN
TRUST, and BONNIE J. VANDERVEEN, as
Trustee of the DANIEL P. AND BONNIE J.
VANDERVEEN TRUST,
Plaintiffs/Counterdefendants-
Appellees/Cross-Appellants,
v No. 362167
Lake Circuit Court
GORDON W. DEPREE, as Co-Trustee of the LC No. 20-009892-CH
GORDON W. DEPREE AND JULIE DEPREE
JOINT LIVING TRUST, JULIE DEPREE, as Co-
Trustee of the GORDON W. DEPREE AND JULIE
DEPREE JOINT LIVING TRUST, VIRGINIA M.
VANDERWALL TRUST, CURTIS S.
VANDERWALL, as Trustee of the CURTIS AND
DIANE VANDERWALL TRUST, DIANE K.
VANDERWALL, as Trustee of the CURTIS AND
DIANE VANDERWALL TRUST, NATHAN
VANDERMEER, PAMELA VANDERMEER,
WILLIAM ZWYGHUIZEN, and JODI
ZWYGHUIZEN,
Defendants/Counterplaintiffs-
Appellants/Cross-Appellees.
Before: PATEL, P.J., and RICK and FEENEY, JJ.
PER CURIAM.
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In this property action, defendants/counterplaintiffs/cross-appellees (“defendants”) appeal
as of right the trial court’s May 11, 2022 judgment, in which it memorialized an earlier grant of
summary disposition to plaintiffs/counterdefendants/cross-appellants (“plaintiffs”) under
MCR 2.116(I)(2). We reverse and remand.
I. FACTUAL BACKGROUND
This dispute arises as a result of a series of disagreements about access to a beach abutting
certain properties in Lake County, Michigan. The properties at issue are located in the Pine Grove
Beach subdivision. The following are two visual representations of the disputed areas in Block 9,
10, and 15 of the subdivision. The first graphic shows both blocks. To give the viewer a sense of
where the plats are, Lots 4-8 of Block 9, pictured in blue, are lakefront homes with beach access
to Big Star Lake, which is north of the properties. An alley runs between those lots and Lots 21-
25, pictured in pink and blue. Lots 1-5 of Block 15, and Lots 13 and 15 of Block 10, shown in
pink, are one street back from the lake and do not have direct lake access.
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The Pine Grove Beach subdivision was platted in 1925. The cottages that the parties now
own used to be part of the Pine Grove Beach Resort. The resort was owned by Milton and Julia
VanDusen, who are not parties to this case. The VanDusens sold the resort in the 1970s, and the
lots were divided off and individually sold. When the lots were divided, the backlot properties
owned by plaintiffs, which do not have direct beach access, were each granted an express 10-foot
easement between the properties owned by defendants, as pictured above. The deeds to plaintiffs’
properties indicate that each of them included express easements granting access to the lake.
The parties largely dispute whether plaintiffs have obtained an easement by prescription to
access the entire beach in front of defendants’ houses (collectively referred to as the “shared
beach”). According to plaintiffs, cottage owners accessed and used the shared beach for decades.
For example, according to plaintiff Bonnie VanderVeen,
I and my husband have previously used and today do actually use the
common shared beach for beach and recreational activities and have seen others
from the division do the same including sunbathing, watersports, swimming,
sunbathing, lounging, and other beach/water-side activities each year during
summer months. From my firsthand knowledge going back to childhood, that
occurred yearly for decades when my husband’s family held the property as well.
According to plaintiff Jamie Bloomquist,
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I and my husband (and even others, including my children) have regularly
and actually used, each and every summer, the common shared beach for things
like swimming, fishing, pulling our boat in and out to pull skiers, lying on the beach,
lounging (both with and without beach chairs), sunbathing, beach games, and like-
kind activities in a manner that was and is open and visible which would be contrary
to the rights of a properties’ owner many times each summer season, uninterrupted,
in excess of 15 years since becoming owners of our cottage by having the claimed
right to do so. Further, we have, uninterruptedly each summer season, installed our
dock and moored our boat in the same general area without permission of any
Defendant because we believe that we have the right to do so in a manner that was
open and visible manner which would be, for lack of actual existing right, be
contrary to the rights of the relevant properties’ owner for more than 15 years since
becoming owners of our cottage.
Defendants disagree with the notion that the shared beach was truly a common space for
everyone in the neighborhood to use at will. In 2018, several breakdowns in neighborly relations
caused defendants to begin to try to limit access to the shared beach. The impetus for this
breakdown appeared to be a large party held by Daniel and Bonnie VanderVeen on the beach in
front of Lots 6 and 7. Lot 6 is owned by Curtis and Diane VanderWall, and Lot 7 is owned by
William and Jodi Zwyghuizen. The VanderVeens are backlot residents who own Lot 1, the eastern
half of Lot 3 and the western half of Lot 23 in Block 15. After the party, the Zwyghuizens posted
‘private property’ signs on the beach in front of their cottage and sent the VanderVeens a letter
from their attorney, informing them that they could no longer use the beach. The same letter was
sent to the Mary and Beth Brunn, who own Lots 13 and 15 in Block 10.
After the letters were sent, conditions between the parties continued to break down, until
ultimately plaintiffs filed a complaint against defendants. Count I of the complaint pertained to
the scope of the express easements in their deeds; plaintiffs asked the trial court to confirm the
scope of the easements and quiet title to the easements in their favor. In Count II, plaintiffs claimed
that their express easements had each been expanded by prescription to encompass the shared
beach area north of Lots 4 through 8 of Block 15. Plaintiffs alleged:
Plaintiffs and/or their predecessors in interest have acquired a fuller easement by
prescription from Defendants and/or their predecessors by using the area north of
Lots 4-8 for lounging, sunbathing, recreating, picnicking, and enjoying the
waterside area as a recreational swimming beach (and activities related thereto) in
an open, notorious, hostile manner, without any permission provided to them
directly, under a claim of right for a period greater than 15 years.
Plaintiffs asked the trial court to quiet title in their favor and determine that they had obtained a
broader easement by prescription for various recreational activities.
Plaintiffs later filed an amended complaint. The amended complaint added Nathan and
Pamela VanderMeer as defendants, and added a third count against defendants. Under Count III,
plaintiffs claimed that they obtained the right, by prescription, to place seasonal docks in the water
on or near their 10-foot express easements. Plaintiffs explained:
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The equitable doctrine of prescriptive easement provide[s] these Plaintiffs the
proper legal right and title to place seasonal dock(s) and to seasonally moor boats
upon or near the easement as these Plaintiffs and/or their predecessors in interest
have acquired a fuller easement by prescription from Defendants and/or their
predecessors by “overusing” the express easement in an open, notorious, hostile
manner, without permission provided to them, under a claim of right for a period
greater than 15 years[.]
Plaintiffs thus asked the trial court to enter a judgment quieting title to the contested land in their
favor, as well as to find that prescriptive easements granted them access to the shared beach and
to place docks in the water.
Defendants filed a countercomplaint setting forth 10 separate claims. Defendants noted
that only their lots had water access, and that the plat created a walkway along the lake’s edge that
defendants labeled the “shore walk.” Under Count I of the countercomplaint, defendants argued
that plaintiffs had wrongly used their easements and the shore walk for purposes other than merely
swimming and boating, as permitted in plaintiffs’ express easements. Under Count II, defendants
argued that plaintiffs had not established a prescriptive easement over the shared beach; instead,
defendants contended that the so-called shared beach did not exist, and that the land north of Lots
4 through 8 were was actually part of defendants’ property. Under Counts III and IV, defendants
argued that their properties are riparian, and that plaintiffs had interfered with their riparian rights
by using the 10-foot areas granted by express easement for lounging, sunbathing, and docking
boats, among other activities not provided for in their deeds. Under Count V, defendants argued
that plaintiffs’ use of their easements violated Lake County zoning ordinances pertaining to
multifamily and nonconforming property uses. Under Count VI, defendants alleged that plaintiffs
trespassed on their properties by placing docks and mooring boats in the lake without permission.
Under Count VII, defendants argued that plaintiffs had violated state law by failing to obtain
marina permits to place docks or boats in the water. Defendants alleged that plaintiffs use of their
easements, the shore walk, and their unlawful use of the shared beach constituted a nuisance in
Count VIII. In Count IX, defendants argued that the trial court was required to utilize the balancing
test for determining the scope of an easement set forth in Little v Kin (Little II), 468 Mich 699; 664
NW2d 749 (2003), and that the Little II balancing test weighed in defendants’ favor. Finally, in
Count X, defendants asked for preliminary and injunctive relief against plaintiffs.
Defendants also filed an answer to plaintiffs’ first amended complaint, and generally
denied liability. Along with the answer, they filed a number of affirmative defenses. Of particular
relevance to this appeal, defendants claimed that plaintiffs’ asserted rights to the easements at issue
were illegal, unlawful, and would interfere with defendants’ riparian rights. They further alleged
that plaintiffs’ use of the easements violated a Lake Township zoning ordinance and several state
laws. Additionally, they again noted that plaintiffs’ claims were barred by the balancing test set
forth in Little II, 468 Mich 699. Finally, they claimed that plaintiffs had not met the elements of a
prescriptive easement and that they could not use boats or boat docks in the lake.
Plaintiffs filed a motion for summary disposition under MCR 2.116(C)(9) (no valid
defense) and (C)(10) (no genuine issue of material fact) in November 2020. Plaintiffs argued that
they had a right to use the shore walk to traverse the beach. They also argued that the express
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easement in each of their deeds granted the right to build docks and moor boats in the water.
Plaintiffs explained:
Looking to the chain of title for Plaintiffs’ particular parcels, each Plaintiff
was granted an express easement consisting of ten feet along various north-south
lot boundary lines between what was then Lake Shore Drive and Big Star Lake
itself . . . . The easements’ “purpose” was for “Access to and from Big Star Lake
for private swimming and boating purposes.” See supra. Swimming and boating
are traditional riparian rights . . . . And because a reasonable dock is incident to the
reasonable and proper enjoyment of the privately-granted easement, such is also
included within the grant.
Plaintiffs argued that no material questions of fact existed as to these rights, and asked the trial
court to grant summary disposition in their favor.
In response, defendants argued that plaintiffs’ claims were largely premature because
discovery was incomplete. They further argued that plaintiffs failed to prove that their express
easements provided them with anything more than access to the lake, rather than full riparian
rights. According to defendants, allowing plaintiffs to expand the easement to provide the right to
place seasonal or permanent docks and moor boats in the water would infringe on defendants’
riparian rights. They further argued that even if the right to place a dock or moor boats on the
easement did exist, the court would still need to conduct the Little II balancing test to determine
whether doing so was necessary to the enjoyment of the easement. Defendants claimed that the
Little II test weighed in their favor and that plaintiffs should not be allowed to place docks or moor
boats on their easements. Finally, defendants argued that plaintiffs’ motion for summary
disposition was frivolous and designed to prevent defendants from obtaining discovery.
Plaintiffs replied that the deeds to each backlot property contained an easement allowing
access to the lake. They argued that “[s]mall, simple, non-permanent seasonal shared dock[s] by
the easement holders while fully kept within the 10 [foot] easement areas, are easily incident to
the reasonable and proper enjoyment of a boating easement with modern boats and thus are within
the grant of the easement.” However, they noted that if the court disagreed, they would amend
their complaint to assert a right to place docks in the water via prescriptive easement.
A hearing was held on the motion, and the trial court elected to grant it in part, finding that
the easements granted plaintiffs the right to “access [the lake] for private swimming and boating
purposes,” but not to engage in “sunbathing or mooring boats, or docks, anything of that nature.”
The trial court later entered an opinion and order granting the motion for summary disposition in
part, denying it in part, and also granting summary disposition to defendants in part on Count I of
their countercomplaint under MCR 2.116(I)(2). The trial court held that all of the plaintiffs had
recorded express easements giving them “the right of ingress and egress to and from Big Star Lake
only,” but not allowing for “sunbathing, lounging, picnicking, the erection or use of a dock, boat
hoist, or other structure, or the seasonal mooring of a boat or watercraft.” The court further held
that the shore walk was “an express easement depicted on the Plat of the Pine Grove Beach
Subdivision for the use of all lot owners in the Plat, is to be used only for walking, and does not
confer riparian rights to the Plaintiffs.” The trial court made no pronouncement on the uses to be
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permitted on the shared beach, indicating that the order was not a final order and did not close the
case.
Plaintiffs filed a second amended complaint in June 2021. Under Count I, the Bloomquists,
Olsens, and VanderVeens asked the trial court to clarify the scope of their easements and find “that
said easements include the right of having ingress and egress right to and from Big Star Lake, the
rights for private swimming and boating, and the ability to erect a seasonal dock[.]” Under Counts
II and III, the Bloomquists, Olsens, and VanderVeens again asked the trial court to find that they
had acquired an expanded easement by prescription to the shared beach, as well as an easement by
prescription to place seasonal docks on the 10-foot beach areas granted to them by express
easement.
In December 2021, defendants filed four separate motions for summary disposition, one
each for claims brought against them by the Bloomquists, Olsens, Brunns, and VanderVeens. Each
motion raised the same general claims against the named plaintiffs. Defendants argued that the
plat does not show anything that could be identified as a “shared beach,” and that it therefore does
not exist. They further argued that their lots are riparian and subject only to access via the shore
walk, to which plaintiffs have an easement for walking along the shoreline. Defendants explained
that only they had these riparian rights, and that plaintiffs have no similar rights as a result of the
10-foot easements present in the deeds to their lots.
Defendants next argued that none of the plaintiffs could establish a prescriptive easement
allowing access to the shared beach. This is the only point on which the motions for summary
disposition differ somewhat. Regarding the Bloomquists and VanderVeens, defendants argued
that their attempt to establish a right to access the beach by prescriptive easement because they
had not given notice of hostile intent and could not establish adversity. Regarding the Olsens and
Brunns, defendants argued that they could not establish a right to access the beach via prescriptive
easement because they could not establish that they used the shared beach in an open, notorious,
and continuous manner for at least 15 years, had failed to give notice of hostile intent, and
additionally could not establish adversity. Finally, defendants argued in all four motions that the
various plaintiffs could not establish the right to place boats or docks in the water via prescriptive
easement, as well as that the Little II balancing test weighed in defendants’ favor.
Plaintiffs filed a joint response, which was additionally combined with a cross-motion for
reconsideration of the court’s earlier ruling that plaintiffs were not entitled to moor boats or place
docks in the water via express easement. Plaintiffs argued that many of defendants’ claims were
not properly briefed. Plaintiffs further argued that reconsideration of the court’s ruling regarding
the express right to place docks and boats in the water was warranted because when the easements
were granted by deed, Michigan law indicated that the right to maintain docks was “reasonably
appurtenant” to an easement that provided the right to boat in a lake. See Cabal v Kent Co Rd
Comm, 72 Mich App 532, 536; 250 NW2d 121 (1976). According to plaintiffs, “[w]hen reviewing
these issues, ‘the rights of nonriparian owners should be determined by examining the language of
the easement and the circumstances existing at the time of the grant,’ and not what the laws and
facts are today.’ ” Given that the easements granted access to the lake for swimming and boating,
plaintiffs argued that they should be entitled to put boats and docks on their easement properties.
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A hearing on the motions was held in February 2022. The trial court indicated to the parties
that it would take their arguments under advisement and issue a ruling at a later date. Before the
hearing adjourned, counsel for defendants indicated that she would file a motion to strike plaintiffs’
affidavits. On March 1, 2022, defendants filed their motion to strike plaintiffs’ affidavits. They
argued that portions of the affidavits submitted Jamie and Kirk Bloomquist, Cheryl Olsen, Mary
and Beth Brunn, and Daniel and Bonnie VanderVeen should be struck “because they contain
[in]admissible hearsay, opinions, factual conclusions, general denials, and statements that
contradict the Plaintiffs’ deposition testimony, and one of them is unsigned in violation of
Michigan law.” Along with the motion, defendants submitted a 23-page document detailing the
deficiencies in each affidavit.
Sixteen days later, on March 17, 2022, the trial court issued an opinion granting summary
disposition to plaintiffs under MCR 2.116(I)(2). The trial court found that plaintiffs had the right
to walk on the shore walk, and that the shore walk was “similar to a sidewalk.” The court further
found that plaintiffs, as the occupants of the backlot properties, could access the shared beach for
“swimming, sunbathing, boating, and fishing.” Additionally, the trial court opined that plaintiffs
could either tie boats to defendants’ docks with permission or place docks of their own on their
10-foot easement areas.
On May 11, 2022, the trial court entered a judgment memorializing its order granting
partial summary disposition to defendants. The trial court specifically held:
The Defendants as owners of their respective beach front lots are riparians.
As riparians they have fee simple to the real estate between their lot lines and the
waters of Big Star Lake, subject to the ten feet shore walk as depicted on the plat.
Said shore walk as previously indicated may be used together with all lot owners
in the plat for walkway purposes, similar to a sidewalk.
Plaintiffs Bloomquist[s] and Brunns, as owners of Lot 2, Block 15 and Lot
15, Block 10, respectively, have an express easement, ten feet in width the
centerline of which is the common line between Lots 4, 5, 24 and 25, Block 9 for
the purpose of access to and from Big Star Lake for private swimming and boating
purposes.
Plaintiffs Vanderveen[s] and Olsens, as owners of Lot 1, Block 15 and Lot
21, Block 9, respectively have an express easement ten feet in width the centerline
of which is the common lot line between Lots 6, 7, 22, and 23, Block 9 for the
purpose of access to and from Big Star Lake for private swimming and boating
purposes.
While the Court has previously found said easements do not expressly grant
the right to have seasonal docks, the Court finds the right to seasonal dock(s)
prescriptively ripened to the benefit of the properties owned by Plaintiffs. The
location of one shared dock at each of the granted easements to extend to the waters
of Big Star Lake is allowed.
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Lastly, Plaintiffs have a private easement for the continued use of the lands
between the shore walk and the water edge of Big Star Lake for the purposes of
swimming, sunbathing, boating, and fishing, but such use is limited to the
occupants of Plaintiffs cottages. Any further uses are subject to the riparian
owners[‘] permission as such is not a public beach.
Defendants moved for reconsideration, arguing that 1) the trial court had unlimited
discretion to grant the motion; 2) the court erred by failing to analyze each plaintiff’s claim on a
lot-by-lot basis; 3) plaintiffs’ access to the shore walk could not be expanded by prescription to
encompass the beach area known as the shared beach; 4) the trial court erred by failing to address
defendants’ motion to strike plaintiffs’ affidavits, 5) the court erred by failing to hold an
evidentiary hearing to address the Little II factors; 6) the court erred by failing to address all of
defendants’ counterclaims and affirmative defenses. The trial court denied the motion, noting that
defendants had merely presented the same issues that were already ruled on by the court, and
finding that defendants had failed to show that the court committed palpable error, the likes of
which could result in a different ruling on reconsideration. This appeal followed.
II. DIRECT APPEAL
A. EASEMENT RIGHTS
1. PRESCRIPTIVE EASEMENTS
The crux of the matter at hand concerns the trial court’s handling of whether plaintiffs
established entitlement to access to the beach via prescriptive easement. The trial court ruled in
favor of plaintiffs under MCR 2.116(I)(2). We hold that this was error.
Defendants moved for summary disposition under MCR 2.116(C)(10). The trial court
granted summary disposition to plaintiffs under MCR 2.116(I)(2). This Court reviews de novo a
trial court’s decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare Inc,
504 Mich 152, 159; 934 NW2d 665 (2019). A motion under MCR 2.116(C)(10) “tests the factual
sufficiency of a claim.” Id. at 160 (citation and emphasis omitted). In considering a motion under
MCR 2.116(C)(10), the trial court “must consider all evidence submitted by the parties in the light
most favorable to the party opposing the motion.” Id. The motion “may only be granted when
there is no genuine issue of material fact.” Id. “A genuine issue of material fact exists when the
record leaves open an issue upon which reasonable minds might differ.” Id. (quotation marks and
citation omitted). Conversely, “[a] trial court may award summary disposition to the opposing
party under MCR 2.116(I)(2) if it determines that the opposing party, rather than the moving party,
is entitled to judgment.” Hambley v Ottawa Co, ___ Mich App ___; ___ NW2d ___ (2023)
(Docket No. 365918); slip op at 3.
Defendants first contend that the trial court erred by concluding that plaintiffs have
acquired an easement by prescription for access to the shared beach area between the shore walk
and the water’s edge north of defendants’ lakefront properties. Defendants’ properties are riparian,
meaning that each property “includes or is bounded by a natural watercourse[.]” Thies v Howland,
424 Mich 282, 287-288; 380 NW2d 463 (1986). Riparian owners generally possess “the right to
erect and maintain docks along the owner’s shore, and the right to anchor boats permanently off
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the owner’s shore.” Id. at 288 (citations omitted). Nonriparian owners typically have “a right to
use the surface of the water in a reasonable manner for such activities as boating, fishing and
swimming,” which can be expanded by easement. Id. The parties appear to agree that plaintiffs’
deeds each provide for an express, 10-foot easement offering access to the water for ingress and
egress, meaning that plaintiffs have the right to swim and temporarily put boats in the water on
their easements. The parties also appear to agree about the existence of a public shore walk area,
which runs east to west across the beachfront, although there is some degree of disagreement about
the width of the shore walk; defendants complain that the trial court’s description of the shore walk
as being 10 feet in width was erroneous. The parties also dispute whether plaintiffs have obtained
an easement by prescription to the rest of the beach area directly abutting the lake.
“An easement is a limited property interest; it is the right to use the land burdened by the
easement for a specific purpose.” Smith v Straughn, 331 Mich App 209, 215; 952 NW2d 521
(2020). Easements can “be created by express grant, by reservation or exception . . . by covenant
or agreement,” Bayberry Group, Inc v Crystal Beach Condo Ass’n, 334 Mich App 385, 399; 964
NW2d 846 (2020) (quotation marks and citation omitted), or by prescription, Marlette Auto Wash,
LLC v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912 NW2d 161 (2018). In Smith, 331 Mich
App at 215-216, this Court explained:
The land burdened by [an] easement is the servient estate, and the land benefited
by the easement is the dominant estate. An easement holder’s use of the easement
is limited to the purposes for which the easement was granted and must impose as
little burden as possible to the fee owner of the land, but the easement holder
nevertheless enjoys all such rights as are incident or necessary to the reasonable
and proper enjoyment of the easement. The necessity of an easement holder’s
conduct can be informed by the purpose and scope of the easement in addition to
the easement holder’s accustomed use of the easement.
A fee owner may use his or her land on a servient estate for any purpose not
unreasonably inconsistent with the rights of the easement holder . . . . Where the
language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted. The scope of an easement may only be
determined by reference to extrinsic evidence if the text of the instrument is
ambiguous. [Quotation marks and citations omitted.]
Prescriptive easements are “based upon the legal fiction of a lost grant, and results from
action or inaction leading to a presumption that the true owner of the land, by his acquiescence,
has granted the interest adversely held.” Astemborsk v Manetta, 341 Mich App 190, 197-198; 988
NW2d 857 (2022) (quotation marks and citation omitted). To establish such an easement,
plaintiffs must demonstrate:
First, continued and uninterrupted use or enjoyment; second, identity of the thing
enjoyed; third, a claim of right adverse to the owner of the soil known to and
acquiesced in by him. The accepted rule is that the user must be exercised by the
owner of the dominant tenement, and must be open, peaceable, continuous, and as
of right. It is sometimes declared that it must also be exclusive, but the term
“exclusive use” does not mean that no one may use the way except the claimant of
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the easement. It means no more than that his right to do so does not depend on a
like right in others. [Plymouth Canton Community Crier, Inc v Prose, 242 Mich
App 676, 679-680; 619 NW2d 725 (quotation marks, citations, and comma
omitted).]
“Adverse or hostile use is use that is inconsistent with the right of the owner, without permission
asked or given, that would entitle the owner to a cause of action against the intruder for
trespassing.” Mulcahy v Verhines, 276 Mich App 693, 702; 742 NW2d 393 (2007). “Mere
permissive use of another’s property, however, will not create a prescriptive easement.” Plymouth
Canton, 242 Mich App at 679. “If no single period of adverse use amounts to the 15-year statutory
period, a party claiming a prescriptive interest may tack the possessory periods of their
predecessors in interest to aggregate the 15-year period of prescription if the claimant can show
privity of estate.” Marlette Auto Wash, LLC, 501 Mich at 203; 912 NW2d 161 (quotation marks
and citation omitted). Regardless, a plaintiff claiming entitlement to land by prescriptive easement
must do so by “clear and cogent evidence,” meaning that “the evidence must clearly establish the
fact of possession and there must be little doubt left in the mind of the trier of fact as to the proper
resolution of the issue.” McQueen v Black, 168 Mich App 641, 645 n 2; 425 NW2d 203 (1988).
The trial court concluded that plaintiffs have an easement by prescription “for the continued
use of the lands between the shore walk and the water edge of Big Star Lake for the purposes of
swimming, sunbathing, boating, and fishing,” as well as the right, by prescription, to place “one
shared dock at each of the granted easements” on Big Star Lake. Defendants claim that plaintiffs
have failed to show that they gave notice of hostile intent, as well as that they used the land in a
manner hostile or adverse to defendants’ ownership interests.
Regarding whether plaintiffs gave notice of intent, defendants generally argue that
according to Du Mez v Dykstra, 257 Mich 449, 451; 241 NW 182 (1932), “while use alone may
give notice of adverse claim of inclosed [sic] premises, the weight of authority is that it raises no
presumption of hostility in the use of wild lands.” The Du Mez Court further explained:
This distinction is in recognition of the general custom of owners of wild lands to
permit the public to pass over them without hindrance. The custom had been
particularly general as to logging roads over timber lands until the carelessness of
hunters and campers produced such fire hazards that the protection of timber
required the permission to be circumscribed. The tacit permission to use wild lands
is a kindly act which the law does not penalize by permitting a beneficiary of the
act to acquire a right in the other’s land by way of legal presumption, but it requires
that he bring home to the owner, by word or act, notice of a claim of right before
he may obtain title by prescription. [Id. (emphasis added.) ]
Thus, defendants essentially contend that the shared beach and the water are “wild lands,” and that
plaintiffs’ use alone was not enough to give defendants notice of plaintiffs’ hostile intent.
Although there is no standard definition of “wild lands,” land that was “uninclosed [sic], covered
with second growth timber, and ha[d] old logging roads on it” was held to be wild and unenclosed
under Du Mez. Id. at 449-450. Under that definition, the land here is not “wild;” it is little more
than a manicured beach on a busy lake that abuts a neighborhood. Accordingly, there is no
elevated burden on plaintiffs to give notice of hostility. Unlike the plaintiffs’ use of the land in
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Du Mez, plaintiffs’ mere use of the beach without permission in this instance was sufficient to put
defendants on notice of their hostile intent. Id. at 451.
However, even though defendants have not supported their argument regarding notice of
hostile intent, plaintiffs have ultimately failed to prove, by clear and cogent evidence, that they
used the shared beach in an adverse or hostile manner for the requisite period of 15 years.
According to Kirk Bloomquist, he and his family used the shared beach without permission for the
entire time they owned their property and even when they were renting the property they now own.
The Bloomquists bought the house in 2003 and used the shared beach until approximately 2019,
when neighborly relations between plaintiffs and defendants began to break down. Jamie
Bloomquist confirmed this, and added that they had placed a dock in the water from approximately
2001 onward without permission from defendants, noting that they purchased pieces of the dock
from relatives of Curtis and Diane VanderWall in approximately 2002, and that Gordon DePree
had shown them where to put their dock in the water around that same time.
Cheryl Olsen attested that she and her husband placed a dock in the water in 1990 without
permission from any adjacent landowners and kept it there, with boats attached, until 2014. She
further stated that “[o]ver the course of decades since 1990 . . . my husband and I have, each
summer, used the shared common beach . . . for many different activities including sunbathing,
swimming, lounging, and many other beach-side and water-side activities during the summer
months.” Cheryl never believed that she had to ask permission to place a dock in the water or use
the shared beach.
Beth Brunn attested that she has been going to the Pine Grove cottages since 1973, and that
since that time,
[t]he shared common beach has been used, countless times, for many different
beach activities and water-side activities during the summer months, including by
me, members of my family, and many others . . . throughout each and every summer
. . . this was understood that this was a right, not something based on someone’s
permission.
Beth also stated that the owners of the Brunn cottage had placed a dock in the water and seasonally
moored boats on it since 1973, and that the dock continued to be placed in the water intermittently
since 2000. At no point was there a 15-year period where the dock was not placed in the water
during the summer. Mary Brunn reiterated essentially the same information in her affidavit.
Finally, the VanderVeens testified that they and their predecessors, Daniel VanderVeen’s
parents, consistently used the shared beach, and saw others do the same, to engage in “sunbathing,
watersports, swimming, sunbathing, lounging, and other beach/water-side activities each year
during summer months[,]” without permission from any lakefront property owners. They further
attested that Daniel VanderVeen’s uncle placed a dock in the water from 1974 through 1981, and
that his father took over maintaining the dock from 1981 through 1998. Daniel’s father stopped
putting a boat out to make room for people swimming, and instead moored his boat at the dock
that is now owned by the Zwyghuizens. Daniel attested that the VanderVeens “never forfeited,
gave up, or terminated the prescriptive rights my uncle and father had secured to placing a dock
upon the eastern side of the common shared beach.”
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To the contrary, the Zwyghuizens claim that they only allowed plaintiffs to use the beach
with permission, and told plaintiffs so multiple times throughout the years. Regarding the
VanderVeens’ dock, the Zwyhguizens claim that the VanderVeens were only able to attach their
dock to the Zwyghuizens’ dock with permission. The VanderWalls agreed that plaintiffs could
only use the beach with their permission as riparian landowners, and that the Olsens in particular
never placed a dock in the water without express permission from the VanderWalls. Gordon
DePree stated that the Bloomquists only placed docks in the water with his permission, and that in
general, plaintiffs could not use the beach without permission. The same was repeated by the
VanderMeers, who similarly believed that plaintiffs could not access the shared beach without
permission from defendants.
Aside from depositions and affidavits, the plaintiffs and defendants also submitted
photographs of various individuals using the beach or swimming in the lake over the years. None
of the photographs are dated, and that instead, the parties have handwritten dates—sometimes
exact, sometimes approximate—next to each photograph. Our review of the record indicates that
all of the evidence available for determining whether plaintiffs established an easement by
prescription to the shared beach or to place docks on their easements consists of documentary
evidence in the form of affidavits, depositions, and photographs. Plaintiffs and defendants plainly
disagree about whether plaintiffs ever asked permission to use the beach or to place docks or moor
boats in the water, such that an easement by prescription to the shared beach or to place docks on
their easements would have ripened. Moreover, it bears repeating that none of the photographs
are dated, and a majority of the individuals pictured in the photographs are not identified—in other
words, their usefulness as evidence is contingent on their weight and credibility.
Neither plaintiffs nor defendants have presented any evidence to prove their claims that
would not require the court to weigh evidence or assess witness credibility, which is plainly
disallowed at the summary disposition stage. See Ass’n of Home Help Care Agencies v Dep’t of
Health & Human Servs, 334 Mich App 674, 684 n 4; 965 NW2d 707 (2020) (“The trial court is
not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material
evidence conflicts, it is not appropriate to grant a motion for summary disposition under
MCR 2.116(C)(10).” (quotation marks and citation omitted)); Morris v Allstate Ins Co, 230 Mich
App 361, 364; 584 NW2d 340 (1998) (“Critically, the court may not make factual findings or
weigh witness credibility in deciding a motion for summary disposition”). This Court is likewise
not permitted to make factual findings or weigh credibility. Burkhardt v Bailey, 260 Mich App
636, 647; 680 NW2d 453 (2004).
To put this differently, if the resolution of a case necessarily depends on the credibility of
competing witness testimony, summary disposition is inappropriate, as reasonable minds could
differ as to the veracity and credibility of each witness. Skinner v Square D Co, 445 Mich 153,
160-162; 516 NW2d 475 (1994). Matters of credibility and the weight to be given to particular
kinds of evidence are for a jury to decide. Id. Here, even if we accepted plaintiffs’ averments in
their depositions and affidavits as true, and made all reasonable inferences in their favor as the
nonmoving parties, id., we could still draw opposing inferences about the nature and extent of
plaintiffs’ use of the beach and their placement of docks on their 10-foot easements based on
defendants’ testimony. Accordingly, where record evidence would permit reasonable minds to
differ regarding whether plaintiffs have established the right to access the shared beach or place
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docks and boats in the water via prescriptive easement, summary disposition was inappropriate.
The trial court thus erred by granting summary disposition to plaintiffs under MCR 2.116(I)(2).
2. THE MICHIGAN LAND DIVISION ACT
Defendants next argue that by asserting the existence of a shared beach to which they have
access rights, plaintiffs are unlawfully amending the Pine Grove Beach plat in violation of the
Michigan Land Division Act, MCL 560.221 et seq. This issue was only raised below as an
affirmative defense, and was never raised or addressed before the trial court in any substantive
manner. On its face, the issue is waived, see Walters v Nadell, 481 Mich 377, 388; 751 NW2d
431 (2008) (stating that “the parties have a duty to fully present their legal arguments to the court
for its resolution of their dispute.”). We further question the viability of raising this as an
affirmative defense, rather than as a counterclaim. A counterclaim, as a cause of action, is one
that exists in favor of a defendant against the plaintiff and on which a defendant might have brought
a separate action and recovered judgment. See 20 Am Jur 2d, Counterclaim, § 1, p 260-261. “A
counterclaim does not seek to defeat the plaintiff’s claim as a cause of action; rather it is an
independent, affirmative claim for relief.” 20 Am Jur 2d, Counterclaim, § 1, p 261. On the other
hand, “[a]n affirmative defense is a defense that does not controvert the plaintiff’s establishing a
prima facie case, but that otherwise denies relief to the plaintiff.” Stanke v State Farm Mut
Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). As raised in this case,
arguments regarding the Michigan Land Division Act would be the proper subject of a
counterclaim, rather than an affirmative defense, but defendants never pursued the issue as a
counterclaim. For these reasons, we decline to address the merits of the issue.
3. BACKLOT-BY-BACKLOT ANALYSIS
Defendants also argue that the trial court erred by failing to conduct an individual, backlot-
by-backlot analysis of each plaintiff’s easement rights, prescriptive or otherwise. Defendants state
that in Astemborski v Manetta, 341 Mich App 190, 200-202; 988 NW2d 857 (2022), this Court
stated that trial courts are required to evaluate each backlot owner’s property and easement rights
in detail on the record. While this Court did provide extensive detail regarding the various property
rights at issue in Astemborski, Astemborski does expressly stands for the proposition that the trial
court must engage in such analysis on the record. Defendants cite no further caselaw to support
this pronouncement, and thus we decline to further consider the issue. See Henry Ford Health Sys
v Everest Nat’l Ins Co, 326 Mich App 398, 406; 927 NW2d 717 (2018) (stating that a litigant may
not simply declare a position and leave it the courts to “ ‘discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for authority either to
sustain or reject his position.’ ” (citation omitted)).
4. LITTLE II
Defendants next argue that they were entitled to a mandatory evidentiary hearing regarding
the Little II balancing test and that the trial court erred by declining to hold one. Setting aside the
dearth of evidence indicating that defendants ever requested an evidentiary hearing, defendants do
not support the contention that they were entitled to such a hearing with any applicable caselaw,
and thus it has been abandoned, see id.
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The parties also dispute whether the Little II balancing test applies to prescriptive
easements; defendants argue that it does, plaintiffs argue the opposite. A review of the language
of Little II, 498 Mich at 700, indicates that it singularly applies to the determination of the scope
of an express easement. According to Little II, “[w]here the language of a legal instrument is plain
and unambiguous, it is to be enforced as written and no further inquiry is permitted.” Id. It goes
on to give directions to trial courts regarding the proper analysis of an easement that is ambiguous.
Id. at 699-700. Little II says nothing about prescriptive easements. Thus, the Supreme Court’s
directives regarding easements in Little II would at most apply to a determination of the scope of
the express easements set forth in the deeds to plaintiffs’ properties.
B. ADDITIONAL ISSUES ON DIRECT APPEAL
1. MOTION TO STRIKE
Defendants also argue that the trial court abused its discretion by declining to address their
motion to strike plaintiffs’ affidavits. We agree, but find that the error is moot in light of our
decision to reverse the lower court’s judgment in favor of plaintiffs.
A trial court’s ruling on a motion to strike an affidavit is reviewed for an abuse of
discretion. Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). A trial court abuses
its discretion when its decision falls outside the range of reasonable and principled outcomes, or
when it makes an error of law. Micheli v Mich Auto Ins Placement Facility, 340 Mich App 360,
367; 986 NW2d 451 (2022). “However, failure to exercise discretion when called on to do so
constitutes an abdication and hence an abuse of discretion.” Loutts v Loutts, 298 Mich App 21,
24; 826 NW2d 152 (2012) (quotation marks and citations omitted). Questions of law, including
those pertaining to the interpretation of statutes and court rules, are reviewed de novo. Kalaj, 295
Mich App at 425.
As discussed herein, the trial court erred by disposing of this case by granting summary
disposition to plaintiffs under MCR 2.116(I)(2). Accordingly, the question of whether the court
should have addressed the motion to strike, in relation to the motion for summary disposition, is
moot. See TM v MZ, 501 Mich 312, 317; 916 NW2d 473 (2018) (noting that an issue is moot
where “a judgment cannot have any practical legal effect upon a then existing controversy.”
(quotation marks and citation omitted)).
However, even if this were not the case, remand to the trial court would only be required
if the trial court’s failure to rule on plaintiff’s motion were “inconsistent with substantial justice.”
MCR 2.613(A). Defendants contend that several affidavits contain inadmissible hearsay,
opinions, conclusion of fact, and statements that contradict their earlier deposition testimony. In
support of this contention, defendants submitted a lengthy document to this Court, identical to that
submitted to the trial court, explaining every instance where an affidavit purportedly conflicts with
an affiant’s deposition testimony, and every instance of alleged hearsay. However, aside from
defining hearsay, defendants never explain how any of these individual statements are actually
hearsay. Defendants further cite a number of cases, seemingly at random and out of context,
regarding hearsay in affidavits. But rather than draw any cogent conclusions about why these
cases matter, they essentially leave it to this Court to connect the dots by referring the panel to the
underlying motion to strike and the list of claimed deficiencies in the affidavits, copied and pasted
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into a separate document. In essence, defendants task this Court with the responsibility of parsing
out whether the statements are in fact hearsay, and if so, what type of hearsay, as well as
determining whether each and every claimed infraction in plaintiffs’ affidavits actually lacks
record support. It is not our responsibility to “unravel and elaborate” defendants’ argument for
them. Henry Ford Health Sys, 326 Mich App at 406. Beyond that, we are not persuaded that
plaintiffs’ deposition testimony actually conflicts with their affidavit testimony. However, we
make no pronouncement one way or the other, as the matter was never addressed by the trial court.
See Tingley v Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004) (“Ordinarily, we do not
address issues not raised below or on appeal, or issues that were not decided by the trial court.”).
Accordingly, even if the matter were not moot, defendants have not shown that their argument has
merit, and any error was harmless.
2. MOTION FOR RECONSIDERATION
Defendants next argue that the trial court erred by denying their motion for reconsideration.
We disagree, but note that the issue is moot.
We review “a trial court’s decision on a motion for reconsideration for an abuse of
discretion.” Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). An
abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes, or when the court makes an error of law. Micheli, 340 Mich App at 367.
Defendants essentially state that the trial court’s discretion to grant its motion for
reconsideration was “unrestricted,” and that if it wanted to, it could have granted the motion for
reconsideration. Under MCR 2.119(F)(3),
Generally, and without restricting the discretion of the court, a motion for rehearing
or reconsideration which merely presents the same issues ruled on by the court,
either expressly or by reasonable implication, will not be granted. The moving
party must demonstrate a palpable error by which the court and the parties have
been misled and show that a different disposition of the motion must result from
correction of the error. [Emphasis added.]
Defendants point out that “[t]his Court has held that the palpable error provision in
MCR 2.119(F)(3) is not mandatory and only provides guidance to a court about when it may be
appropriate to consider a motion for rehearing or reconsideration.” People v Walters, 266 Mich
App 341, 350; 700 NW2d 424 (2005). While this may be so, it does not negate that a motion that
“merely presents the same issues ruled on by the court . . . will not be granted.” MCR 2.119(F)(3).
Here, defendants argued that the trial court erred by failing to specifically address their motion to
strike plaintiffs’ affidavits, and that the motion should have been granted because plaintiffs’
affidavits contain hearsay and other inadmissible content. Defendants are simply presenting the
same issue regarding the substance of the motion to strike on reconsideration. Moreover, since we
have concluded that the trial court erred in granting relief to plaintiffs and that remand is required,
defendants’ argument regarding the motion for reconsideration has been rendered moot. See TM,
501 Mich at 317. We decline to further consider it.
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3. COUNTERCOMPLAINT
Finally, defendants argue that the trial court committed a ministerial error requiring
correction by failing to address their counterclaims and affirmative defenses. We again disagree.
Defendants present no legal authority to support the argument that the trial court was
required to address each and every counterclaim and affirmative defense raised by defendants.
The only citation listed is to an unpublished case, which they claim stands for the notion that
closing a case without addressing a parties’ counterclaims is a “ministerial error.” See Tyson
Foods, Inc v Dep’t of Treasury, unpublished per curiam opinion of the Court of Appeals, issued
March 15, 2011 (Docket No. 295710). Setting aside that this case has no precedential value under
MCR 7.215(C)(1), Tyson Foods merely states that a trial court erred by including “final judgment”
language in an order, and that doing so was a “ministerial error.” Tyson Foods, Inc, unpub op at 2.
This case is irrelevant to defendants’ argument. Beyond that, defendants appear to once again
expect this Court to develop their arguments for them, and also to review the merits of each
counterclaim and affirmative defense “as if on leave granted.” We decline to do so. See Henry
Ford Health Sys, 326 Mich App at 406.
III. CROSS-APPEAL
Plaintiffs argue on cross-appeal that their 10-foot express easements include the right to
moor boats and place docks in the water. We disagree.
As noted in Issue II(A), supra, we review de novo a trial court’s decision on a motion for
summary disposition. El-Khalil, 504 Mich at 159. In considering a motion under
MCR 2.116(C)(10), the trial court “must consider all evidence submitted by the parties in the light
most favorable to the party opposing the motion.” Id. The motion “may only be granted when
there is no genuine issue of material fact . . . upon which reasonable minds might differ.” Id.
Conversely, summary disposition under MCR 2.116(I)(2) is appropriate if the trial court
“determines that the opposing party, rather than the moving party, is entitled to judgment.”
Hambley, ___ Mich App at ___; slip op at 3.
Unlike the prescriptive easement issue, sufficient evidence has been presented by the
parties to allow us to resolve this question. It is not in dispute that plaintiffs’ property deeds each
grant them an express easement with access to Big Star Lake for swimming and boating purposes,
with the exception of the Olsens’ deed, which is mute on the subject of the easement’s express
purpose. Specifically, the Bloomquists and VanderVeens have “an easement for the purpose of
access to and from Big Star Lake for private swimming and boating purposes,” whereas the Brunns
have “an easement ten feet (10’) in width . . . for the purpose of access to and from Big Star Lake
for private swimming and boating purposes,” and the Olsens merely have “a perpetual easement
over a strip of land 10 feet in width lying between Lake Shore Drive and Big Star Lake[.]” The
question is whether the easements are for ingress and egress only, or whether they allow for the
placement of docks and boats. In ruling on plaintiffs’ motion for partial summary disposition, the
trial court found that plaintiffs had no express “riparian rights such as sunbathing, lounging,
picnicking, the erection or use of a dock, boat hoist, or other structure, or the seasonal mooring of
a boat or watercraft.”
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The owner of property subject to an easement may rightfully use his or her land for any
purpose that is not inconsistent with the rights of the easement holder. Bayberry Group, Inc, 334
Mich App at 399. “The language of the instrument that granted the easement determines the scope
of the easement holder’s rights.” Id. at 399-400. The same rules applicable to the interpretation
of contracts generally apply to the determination of the purpose and scope of an easement. Id.
at 400. Thus, to ascertain the easement’s scope, we must determine the intent of the parties at the
time the easement was created. Id. This analysis begins with the easement’s plain language. Id.
If the language of the easement is clear, it must be enforced as written. Id. In general, the
conveyance of an easement gives the grantee all rights necessary or incident to the proper
enjoyment of the easement. Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 41-42; 700
NW2d 364 (2005).
This Court addressed an express easement concerning the placement of a dock in Dyball v
Lennox, 260 Mich App 698, 705-706; 680 NW2d 522 (2004), explaining:
Erecting or maintaining a dock near the water’s edge is a riparian or littoral
right. A “riparian owner” is one whose land is bounded by a river and “riparian
rights” are special rights to make use of water in a waterway adjoining the owner’s
property. There is no dispute that plaintiffs are riparian owners with riparian rights.
And, there is no dispute that defendant’s rights with regard to the lake are those
rights granted in the easement. Reservation of a right of way for access does not
give rise to riparian rights, but only a right of way. While full riparian rights and
ownership may not be severed from riparian land and transferred to nonriparian
backlot owners, Michigan law clearly allows the original owner of riparian property
to grant an easement to backlot owners to enjoy certain rights that are traditionally
regarded as exclusively riparian. [Quotation marks, citations, and brackets
omitted.]
In Thies, 424 Mich at 288, this Court likewise summarized the applicable law as follows:
Persons who own an estate or have a possessory interest in riparian land enjoy
certain exclusive rights. These include the right to erect and maintain docks along
the owner’s shore, and the right to anchor boats permanently off the owner’s shore.
Nonriparian owners and 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. An incident of the public’s right
of navigation is the right to anchor boats temporarily. [Citation omitted.]
However, the Thies Court did note that “[p]laintiffs cannot prevent defendants from erecting a
dock or permanently anchoring their boats if these activities are within the scope of the plat’s
dedication, and do not unreasonably interfere with plaintiff’s use and enjoyment of their property.”
Id. (citation omitted).
Although each of the easements appears to give plaintiffs some degree of access to the
lake, nothing in the express terms of the easements or the plat dedication indicates that the
VanDusens, who originally owned the properties and included the easement in each deed, intended
to grant plaintiffs full riparian rights, equal to the riparian rights granted to defendants as lakefront
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cottage owners. For example, it bears consideration that the VanDusens did not grant any large
easements to the backlot cottage owners. Judging by the slight amount of land granted to
plaintiffs—two 10-foot easements, split between four backlot cottages—it is our opinion that the
easements were not intended as places where backlot cottage owners would be spending much
time, other than to go in and out of the water. If each backlot owner was granted the right to place
a permanent dock in the water, for example, would there be room for more than a single dock on
one of these easements? We posit that there would not.1 Thus, as to the Bloomquist, VanderVeen,
and Brunn deeds, which note that each owner has access to the lake for “swimming and boating
purposes,” and considering applicable caselaw, we conclude that the deeds allow for the use of the
easements in an impermanent way; that is, to swim, carry small boats along the easement, put
small boats in the lake, and temporarily moor small boats on the easement. It does not grant
plaintiffs the right to place seasonal or permanent docks in the water, or to place large boats in the
lake. Similarly, given that the Olsens’ deed is entirely mute about its purpose, and simply provides
a pathway between their property and Black Star Lake, we conclude that it also fails to support the
argument that the Olsens have full riparian rights. Ultimately, none of the easements appear to
provide plaintiffs the right to permanently place docks in the water or moor boats. We decline to
read such a right into existence.
IV. CONCLUSION
The trial court did not err by concluding that plaintiffs’ express easements do not provide
them with full riparian rights. Consequently, plaintiffs may not place permanent or seasonal docks
on their easements. Rather, they may only use these easements to swim and to temporarily place
small boats in the water. However, the trial court did err by concluding that plaintiffs have a right
to access the shared beach and to place boats and docks in the water via prescriptive easement.
Accordingly, defendants have properly established that the court erred by granting summary
disposition to plaintiffs under MCR 2.116(I)(2). Whether and to what extent plaintiffs have
established access to the lake or the beach via prescriptive easement is a matter for trial. In all
other respects, defendants’ appeal lacks merit.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Sima G. Patel
/s/ Michelle M. Rick
/s/ Kathleen A. Feeney
1
To put this in perspective, Daniel VanderVeen testified in his deposition that he currently owns
a 19-foot-long Crownline boat. While the VanderVeens may not have stored the boat parallel to
the shore, the fact is that their boat is longer than the entire 10-foot express easement that they
share with the Olsens. Placing more than one dock here, or storing more than one boat, appears
plainly unfeasible, and suggests that the VanDusens likely did not intend for backlot property
owners to be able to do so. At most, the easements appear to provide room for the temporary
placement of small boats, such as canoes or kayaks, rather than larger watercraft, the placement of
which would require the use of trailers or a boat launch.
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