Tomecek v. Bavas

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 30, 2008

FRANK J. TOMECEK, JR., and JANIS H.
TOMECEK,

Plaintiffs-Appellees,

v No. 134665

ANDREW LUCIAN BAVAS, JOYCE
BAVAS, INEZ HILDEGARD BAVAS,
STANLEY FRANCIS STASCH, JULIA
STASCH, MARTHA STASCH, PATRICIA
M. CURTNER, TIMOTHY V. McGREE,
PETER A. STRATIGOS, ALICE M.
STRATIGOS, PAMELA KRUEGER,
DEVEREAUX BOWLY, JR., DAVID N.
DERBYSHIRE, ELLEN R. LA FOUNTAIN,
JONATHAN RODGERS, ROYAL
KENNEDY RODGERS, LEE STAHL, III,
and SUSAN STAHL,

Defendants-Appellants,
and

INDIANA MICHIGAN POWER
COMPANY, doing business as AMERICAN
ELECTRIC POWER COMPANY, INC.,
MICHIGAN DEPARTMENT OF LABOR
AND ECONOMIC GROWTH, and
BERRIEN COUNTY DRAIN
COMMISSIONER,
 Defendants-Appellees,
and

DANIEL JOHNSON, SCOTT LOESS,
KATHLEEN LOESS, JANE HENKLE,
RICHARD CRAGG, LOIS ZYER, ARTHUR
C. MERTZ REVOCABLE TRUST, PETER
LEVY, BENITA LEVY, LAKESIDE
PROPERTY OWNERS, CHIKAMING
TOWNSHIP, ROBERT FORKER, JR., NEW
BUFFALO SAVINGS BANK FIFTH
THIRD BANK, SHORELINE BANK,
SEMCO ENERGY, INC., SEMCO ENERGY
GAS COMPANY, SBC AMERITECH
CORPORATION, MICHAEL L. JONES,
LAURA L. AVERY, and JULIA E.
PIETRAS,

Defendants.

BEFORE THE ENTIRE BENCH

KELLY, J.

This case involves real property to which plaintiffs seek an easement for the

purpose of connecting to a city sewer across the lots of their neighbors. The issues

are (1) whether the Land Division Act (LDA)1 can be used to create substantive

property rights, such as a utility easement, (2) whether an easement by necessity

for utilities should be allowed in this case, and (3) whether the restrictive covenant

that runs with the land in question bars the easement.

The Court of Appeals held that the LDA provides for substantive changes

to property rights and gives the trial court the authority to revise the plat to allow a

1
MCL 560.101 et seq.

2

utility easement. It also concluded that an easement by necessity for utilities could

appropriately be created in this case and that the restrictive covenant does not bar

the easement.

We affirm the result of the Court of Appeals opinion and conclude that the

original grantors intended to allow utility access to the Tomeceks’ property

through the central drive easement. We agree that the restrictive covenant does

not bar the easement. However, we reverse the Court of Appeals holding that the

LDA can alter substantive property rights. Finally, it was unnecessary for the

Court of Appeals to address whether an easement by necessity should be

recognized in Michigan and applied in this case. Therefore, we affirm the Court

of Appeals opinion in part, reverse it in part, and vacate it in part.

FACTS

Plaintiffs Frank and Janis Tomecek own property in the O.T. Henkle

subdivision along Lake Michigan in Berrien County. They wish to build a house

on their property (Lot 2).2 Defendants claim that a restrictive covenant that runs

with the plat prevents plaintiffs from erecting a building on Lot 2. The covenant

states that a house cannot be built on Lot 2 “unless and until a municipal sanitary

sewer line is made available to the premises.”

2
Plaintiffs’ property is shown as “2” on the map at the end of this opinion.

3

 Because Lot 2 is landlocked, plaintiffs have an easement3 (the central

easement) over Lots 1 and 3 through which they access their property from Lake

Shore Road. Plaintiffs claim that they are entitled to use the central easement to

gain access to the municipal sewer line.

A familiarity with the history of the O.T. Henkle subdivision is helpful in

understanding this case. In the early 1920s, O.T. Henkle acquired approximately

five acres of land on Lake Michigan in Chikaming Township, Berrien County.

The property passed from O.T. Henkle to C.W. Henkle, Gladys Farclough, and

Jane H. Henkle (collectively referred to as “the original grantors”).4 In 1967, the

original grantors conveyed what is now Lot 1 to one of the defendants, reserving

an easement for the benefit of Lot 2. The easement runs from Lake Shore Road

along the southern boundary of Lot 1.5

Over the next few years, the original grantors sold Lots 3, 4, and 5, all

subject to an easement running along the southern portion of the property (“the

south drive easement”).6 Lots 3 and 4 were also subject to the central drive

3
The easement is shown on the lower center of the diagram appended to
this opinion and runs from Lake Shore Road to Lot 2.
4
Jane Henkle is the mother of plaintiff Janis Tomecek.
5
The easement is located on the central easement on the map, where the
word “Drive” is printed.
6
The easement is labeled “Drive Easement” and shown on the left side of
the map.

4

easement.7 In 1975, the plat was recorded in the county records. At the time of

platting, Lots 3, 4, and 5 used the south drive easement for utilities access8 and for

right-of-way access. Also, in 1975, the original grantors recorded a restrictive

covenant prohibiting the construction of a building on Lot 2 until a municipal

sanitary sewer service was made available to the premises.9 Thus, when the

property was platted in 1975, both the central and south easements were

identically identified as “drive easement” on the plat, and the south easement

already had utilities on it.

In 1976, the original grantors conveyed Lot 2 to plaintiffs. When plaintiffs

bought Lot 2, the original grantors provided them with a drawing showing a good

spot to build a home on the lot.10

PROCEDURAL HISTORY

In 2001, plaintiffs requested a variance from the Chikaming Township

Zoning Board of Appeals to construct a home on their lot. When the board

granted the variance, defendants appealed, claiming that the restrictive covenant

7
The left half of the central easement, where the word “Easement” appears
on the map.
8
The south easement provided Lots 3, 4, and 5 with telephone and
electrical access.
9
Plaintiffs and defendants disagree about the meaning of “premises” in the
restrictive covenant. Plaintiffs contend “premises” refers to the subdivision as a
whole, whereas defendants claim it refers exclusively to Lot 2.
10
In 1969, before plaintiffs acquired the property, the original grantors gave
them another drawing showing a desirable location for a home on Lot 2.

5

prevented plaintiffs from building a home because they did not have sewer access.

The trial court granted summary disposition to plaintiffs, ruling that the original

grantors intended to allow plaintiffs to build a home on Lot 2. The trial court

observed that defendants had already run utility lines on the south easement, and

plaintiffs deserved to do the same with their central easement.

A divided Court of Appeals panel affirmed the trial court’s decision in a

published opinion.11 It held that the LDA12 empowered the trial court to revise the

plat to include utilities in the central easement. The LDA, it concluded, permits a

trial court to do more than merely correct errors; it may alter a plat to affect

underlying substantive property rights. The Court of Appeals held, in addition,

that plaintiffs were entitled to an easement by necessity for utilities.

STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary

disposition.13 The extent of a party’s rights under an easement is a question of

fact, and a trial court’s determination of the facts is reviewed for clear error.14 The

11
Tomecek v Bavas, 276 Mich App 252; 740 NW2d 323 (2007).
12
The LDA allows a trial court to vacate, correct, or revise a plat. MCL
560.226(1).
13
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d
364 (2005).
14
Id.

6

proper interpretation and application of a statute presents a question of law that we

consider de novo.15

THE CENTRAL EASEMENT INCLUDED UTILITY ACCESS AT THE TIME OF PLATTING

We must determine if the central easement running from Lake Shore Road

to Lot 2 includes utility access, or if its use is strictly limited to ingress and egress.

Under well-established Michigan law, “[t]he use of an easement must be confined

strictly to the purposes for which it was granted or reserved.”16 Exacting “magic

words” are not required on a plat to create an easement.17 When interpreting deeds

and plats, Michigan courts seek to effectuate the intent of those who created

them.18

Plaintiffs assert that, when the original grantors platted the subdivision,

they assumed that both the south easement and the central easement included

access for utilities. Defendants assert the contrary and add that Lot 2 was always

intended to remain vacant.

It is undisputed that the central and south easements are identically labeled

“drive easement” on the plat. At the time of platting, the central easement was

15
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32;
658 NW2d 139 (2003).
16
Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957).
17
See Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339
(2001).
18
See Curran v Maple Island Resort Ass’n, 308 Mich 672, 679-681; 14
NW2d 655 (1944).

7

used only for ingress and egress to Lot 2; there were no utilities on the easement.

However, the south easement was used both as a driveway and for telephone and

electrical lines to Lots 3, 4, and 5.

We find a strong inference that the words “drive easement” on the central

easement were intended to have the same meaning as “drive easement” on the

south easement. We conclude that the original grantors would have labeled the

easements differently had they intended to allow utilities on the south easement,

but not on the central easement. And we conclude that the original grantors

intended the central and south easements to have the same scope: both road access

for ingress and egress and utility access.

As early as 1883, Michigan courts recognized that a party using a right-of-

way for a particular purpose cannot prevent a subsequent party from making the

same use of the property. In Bell v Todd, the plaintiffs sought to enjoin the

defendant from blocking access to a road that was platted but never constructed.19

Plaintiff Bell had previously blocked unbuilt roads in the same plat. The Court

dismissed the case, stating:

[I]t also appears that Railroad street south of South street is
enclosed and occupied by Bell himself, so that he is doing in his own
individual interest in respect to this very street precisely what he
seeks to enjoin defendant from doing. It would be preposterous to
grant the relief prayed for on his application under such
circumstances.[20]

19
Bell v Todd, 51 Mich 21; 16 NW 304 (1883).

20
Id. at 28.

8

 Although two streets, not one, are involved here, we believe Bell is

instructive. Defendants use their “drive easement” for utilities and seek to prevent

plaintiffs from using their “drive easement” for the same purpose. In the words of

Justice Cooley in Bell, to allow such a result would be “preposterous.”

It is apparent, also, that the grantors envisioned that a house would be built

on Lot 2 and, by extension, that the central easement would include utilities. This

may be gleaned from two drawings by C.W. Henkel, one of the original grantors.

The first was made in 1969, six years before the subdivision was platted. It shows

Lot 2 and the adjacent lot to the east, Lot 1. On Lot 2 is a rectangle with the words

“possible house location and dimensions.” The central easement is shown on the

drawing.

C.W. Henkle made a second drawing in 1978, three years after the

subdivision and easements were platted. Like his first drawing, it shows a location

on Lot 2 where plaintiffs could build a home. The central easement is visible on

the drawing. It is significant that C.W. Henkle included the central easement in

his drawings of Lot 2 with a house. He knew then that no house could be erected

there until the lot had access to a sewer line. He knew, also, that the central

easement was the only likely route to provide that access. Taken together, these

drawings provide further evidence of intent that the central drive easement should

include utilities.

9

 Finally, contrary to the defendants’ claim, the wording of the restrictive

covenant shows that the original grantors always intended that a house could be

built on Lot 2. When attempting to discern the parties’ intent, we construe

together contemporaneous documents relating to the same transaction.21 The

restrictive covenant on Lot 2 was executed contemporaneously with the plat;

therefore, it is relevant in discerning the parties’ intent at the time.

It does not make sense that the original grantors would have inserted

language regarding a sewer in the restrictive covenant had they intended that no

building ever be placed on Lot 2. If they had really intended to forever prevent

building on Lot 2, they would have simply covenanted that no building ever be put

there. The reference to a sewer makes sense, however, if the grantors’ intent was

to eventually allow a building on Lot 2. This becomes readily apparent when the

geographical limitations of the plat are considered. The plat is approximately five

acres in size. Only the eastern half is suitable for housing because a bluff runs

along the middle of the property, descending to the beach and Lake Michigan.

Therefore, the five lots suitable for residences adjoin each other on roughly the 2.5

easternmost acres of land.

21
Interstate Constr Co v United States Fidelity & Guaranty Co, 207 Mich
265, 274; 174 NW 173 (1919).

10

 In 1975, when the subdivision was platted and the restrictive covenant was

written, none of the lots had access to a municipal sewer system. Septic tanks22

were the only plausible alternative for waste management on the lots. However,

because of concerns over numerous septic systems and leach fields23 in the

relatively small area, a septic system was not an option for every lot.

Cognizant of this problem, the original grantors likely enacted the

restrictive covenant to prevent construction of a house on Lot 2 until municipal

sewer service became available to it. Hence, the restrictive covenant prevented

overloading the small area of land with septic waste. When a municipal sewer

system became available to the plat in the late 1970s, the condition in the

restrictive covenant was satisfied. The restrictive covenant had served its purpose.

22
A septic tank is a small-scale sewage treatment system common in rural
areas where there is no access to a municipal sewer line. Wastewater enters the
septic tank from a connected residence, and solids settle to the bottom. The
remaining water flows out of the tank and is absorbed into the soil, which usually
filters out the remaining impurities in the water. However, there must be adequate
soil area to handle the wastewater coming from the tank or the surrounding area
will be damaged. This is especially likely when septic tanks are located on
property near a body of water, (like the property in this case that borders Lake
Michigan) because the sandy soil can easily become saturated with chemicals.
This pollutes the surrounding area and surface water, causing serious harm to fish,
plants, and other wildlife. See Craig G. Cogger, Septic System Waste Treatment in
Soil, , accessed
December 12, 2008; see also Septic Systems for Waste Water Disposal, available
at , accessed December 12, 2008.
23
A leach field is the area of land where the wastewater from a septic tank
is deposited.

11

 From this we conclude that it was the intent of the original grantors that a

house could be built on Lot 2 when a municipal sewer became available. We

conclude also that the central “drive easement” was intended, like the south “drive

easement,” to provide access to the sewer and other utilities.

EFFECT OF THE RESTRICTIVE COVENANT

Defendants maintain that the restrictive covenant of 1974 intended to

prohibit any building on the property until the end of time. They argue that the

plain language of the restrictive covenant reflects this.

The restrictive covenant states, “It is hereby covenanted and agreed that no

building, structure or dwelling shall be constructed on Lot 2 of said plat unless and

until a municipal sewer line is made available to the premises.” Defendants claim

that the covenant prohibits building a home on Lot 2 until the owners of Lots 1, 3,

and 4, explicitly grant permission to create an easement for municipal sewer

service.

This interpretation is not reflected in the words of the covenant. As the trial

court pointed out:

A plain reading of this restriction contradicts Defendant’s
[sic] argument: if the grantors wanted to forever preclude any
construction on Lot 2, the restriction would have stated as much in
explicit language by ending the provision after the word “plat” [so
that it read “[t]hat it is hereby covenanted and agreed that no
building, structure or dwelling shall be constructed on Lot 2 of said
plat”]. Defendants’ argument in this regard must therefore fail.

The restrictive covenant merely prevented construction on Lot 2 until sewer

service became available to that lot.

12

 THE LDA CANNOT ALTER SUBSTANTIVE PROPERTY RIGHTS

The LDA provides a process for surveying and marking subdivided

property. Property information is compiled on a plat that is then recorded with the

local municipality. The LDA allows a circuit court to vacate, correct, or revise a

recorded plat.24 Defendants argue that the LDA permits a court to alter a plat map

only to properly reflect existing property rights; it cannot affect the substantive

rights of the underlying property owners.

When construing the LDA, we are mindful that our primary goal is to

ascertain and give effect to the Legislature’s intent.25 When determining intent,

we consider first the language of a statute.26 The LDA allows a court to “order a

recorded plat or any part of it to be vacated, corrected, or revised . . . .”27 “Plat” is

defined in the act as “a map or chart of a subdivision of land.”28

The LDA defines a plat as a map. A plat is a description of the physical

property interests on a particular area of land. A map, by itself, is not a

determination of substantive property interests. If one “revises” a map of the

United States to show Michigan encompassing half of the country, it does not

make it so. The LDA was never intended to enable a court to establish an

24
MCL 560.221.
25
Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).
26
Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998).
27
MCL 560.226(1).
28
MCL 560.102(a).

13

otherwise nonexistent property right. Rather, the act allows a court to alter a plat

to reflect property rights already in existence.

In this case, the LDA did not create new substantive property rights when

the circuit court altered the plat to reflect that the central easement encompasses

utility access. This right existed with respect to the central easement since its

inception, when the original grantors recorded the central easement intending it to

include utilities. The trial court merely used the LDA as the tool to validate

property rights that already existed.

CONCLUSION

In 1975, when the O.T. Henkle subdivision was platted, it was the intent of

the grantors that the central easement could include utilities. This holding is

supported by the fact that, on the plat, the central easement and the south easement

are both labeled the same. It is undisputed that the south easement was a driveway

and had utilities at the time of platting. The language of the restrictive covenant

that runs with the plat supports this holding. The covenant prevented a house from

being built on Lot 2 until a municipal sewer system could be made available to the

lot. Hence, once a sewer line became available, the covenant allowed a house to

be built on Lot 2. Therefore, we affirm the Court of Appeals judgment. However,

we reverse its holding concerning the LDA. The LDA cannot be used to create

substantive property rights. Regarding the Court of Appeals dicta creating an

easement by necessity for utilities, we decline to address whether such an

easement is available in Michigan, it being unnecessary to resolve the case. The

14

result reached by the Court of Appeals is affirmed on the basis of the intent of the

grantors.

Marilyn Kelly
Clifford W. Taylor

15

16
 STATE OF MICHIGAN

SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H.
TOMECEK,

Plaintiffs-Appellees,

v No. 134665

ANDREW LUCIAN BAVAS, JOYCE
BAVAS, INEZ HILDEGARD BAVAS,
STANLEY FRANCIS STASCH, JULIA
STASCH, MARTHA STASCH, PATRICIA
M. CURTNER, TIMOTHY V. McGREE,
PETER A. STRATIGOS, ALICE M.
STRATIGOS, PAMELA KRUEGER,
DEVEREAUX BOWLY, JR., DAVID N.
DERBYSHIRE, ELLEN R. LA FOUNTAIN,
JONATHAN RODGERS, ROYAL
KENNEDY RODGERS, LEE STAHL, III,
and SUSAN STAHL,

Defendants-Appellants,
and

INDIANA MICHIGAN POWER
COMPANY, doing business as AMERICAN
ELECTRIC POWER COMPANY, INC.,
MICHIGAN DEPARTMENT OF LABOR
AND ECONOMIC GROWTH, and
BERRIEN COUNTY DRAIN
COMMISSIONER,

Defendants-Appellees,
and

DANIEL JOHNSON, SCOTT LOESS,
KATHLEEN LOESS, JANE HENKLE,
RICHARD CRAGG, LOIS ZYER, ARTHUR
C. MERTZ REVOCABLE TRUST, PETER
LEVY, BENITA LEVY, LAKESIDE
PROPERTY OWNERS, CHIKAMING
TOWNSHIP, ROBERT FORKER, JR., NEW
BUFFALO SAVINGS BANK FIFTH
THIRD BANK, SHORELINE BANK,
SEMCO ENERGY, INC., SEMCO ENERGY
GAS COMPANY, SBC AMERITECH
CORPORATION, MICHAEL L. JONES,
LAURA L. AVERY, and JULIA E.
PIETRAS,

Defendants.

CAVANAGH, J. (concurring in part and dissenting in part).

I concur with the result of the lead opinion because I agree that plaintiffs’

request for relief should be granted. I write separately to clarify my view that the

circumstances surrounding the easement’s creation show that it contains a latent

ambiguity and that the original grantors intended to allow utility access to

plaintiffs’ property through the central drive easement. I respectfully dissent,

however, from the lead opinion’s holding that the Land Division Act (LDA) does

not grant courts the power to alter substantive property rights.

I. INTENT OF THE ORIGINAL GRANTORS

I concur with the lead opinion’s conclusion that the original grantors

intended plaintiffs’ property to have access to utilities through the central drive

easement, and I would grant plaintiffs’ request for relief.1 I also concur with the

1
This holding applies to the southern half of the central drive easement.
The northern half of the central drive easement was reserved before platting, and
with language distinct from the language used in the south drive easement.

2

lead opinion’s conclusion that the restrictive covenant does not bar plaintiffs from

building on their property.

As the lead opinion noted, the cardinal rule of interpreting deeds and plats

is to effectuate the intent of the parties. Ante at 7. To effectuate this rule, in light

of the principle of freedom of contract, this Court has generally observed that

“[i]f the language of a contract is clear and unambiguous, it is to be construed

according to its plain sense and meaning . . . .” City of Grosse Pointe Park v

Michigan Muni Liability & Prop Pool, 473 Mich 188, 197-198; 702 NW2d 106

(2005) (internal citation and quotation marks omitted). Where a contract is

ambiguous, however, this Court may use extrinsic evidence to determine the

intent of the parties. Id. at 198.

Extrinsic evidence may sometimes also be used to detect an ambiguity in a

contract, depending on whether the ambiguity is latent or patent. Id. A patent

ambiguity “‘clearly appears on the face of a document, arising from the language

itself.’” Id., quoting Black’s Law Dictionary (7th ed). Extrinsic evidence is

generally not necessary to detect a patent ambiguity. In contrast, a latent

ambiguity “‘does not readily appear in the language of a document, but instead

arises from a collateral matter when the document’s terms are applied or

executed.’” Id. Where there is a latent ambiguity, extrinsic evidence may be

used not only to resolve the ambiguity, but also to prove the existence of the

latent ambiguity. Grosse Pointe Park, 473 Mich at 198. See also McCarty v

Mercury Metalcraft Co, 372 Mich 567, 575; 127 NW2d 340 (1964); Ives v

3

Kimball, 1 Mich 308, 313 (1849). In Ives, after explaining that a latent ambiguity

may be shown by parol evidence, this Court highlighted the importance of this

doctrine by stating that

[t]here is no more useful, just and practical rule of law, than that
which admits evidence of surrounding circumstances and collateral
facts, within certain well defined limits, for the purpose of enabling
courts to ascertain and carry into effect the intention of contracting
parties. The cases in which this rule has been applied are almost
innumerable. [Ives, 1 Mich at 313.]

This Court has applied the latent ambiguity doctrine to give easement

language a meaning that becomes apparent only in light of the surrounding

circumstances. See Keller v Paulos Land Co, 381 Mich 355; 161 NW2d 569

(1968); McConnell v Rathbun, 46 Mich 303; 9 NW 426 (1881). Keller is

particularly instructive in this case. In Keller, the parties disagreed over the

purpose of a “nonexclusive easement of ingress and egress,” where the easement

was landlocked within the defendant’s property. Keller, 381 Mich at 360. The

defendant argued that, in context, it was clear that the easement was only intended

to be used for parking. Id. at 360-361. This Court concluded that the language

was ambiguous because a landlocked easement is “not a use of ingress and egress

within the common legal meaning,” and accordingly it was appropriate for the

Court to use oral testimony to determine the true intent of the parties. Id. at 362.

Similarly, in this case, the surrounding circumstances show that there was a

latent ambiguity; therefore, extrinsic evidence should be used to determine and

effectuate the intent of the parties. The central and south drive easements were

4

described in the deeds as “a non-exclusive right of way for driveway purposes.”

“Driveway purposes” is not so unclear as to create a patent ambiguity. But the

parties’ use of the south drive easement for utilities at the time the easements were

created suggests that, as in Keller, the parties’ understanding of “driveway

purposes” was not limited to its “common legal meaning.” Keller, 381 Mich at

362. Because there is a latent ambiguity, the court may look to extrinsic evidence

to determine the intent of the parties. As explained in the lead opinion, extrinsic

evidence shows that the grantors intended that the central easement could be used

for utilities access for plaintiffs’ property. Therefore, I concur that plaintiffs

should be granted relief.

II. LAND DIVISION ACT2

I respectfully dissent from the holding that the LDA does not grant courts

the power to alter substantive property rights. I think that the majority that

reached that holding errs in addressing this issue in this case. I also think that its

reasoning is flawed and that its conclusion is too broad.

Most importantly, I do not think that it is necessary for this Court to reach

this issue in this case. The lead opinion states that “[i]n this case, the LDA did not

create new substantive property rights when the circuit court altered the plat to

reflect that the central easement encompasses utility access” because “[t]his right

existed with respect to the central easement since its inception . . . .” Ante at 14. I

2
MCL 560.101 et seq.

5

agree. Accordingly, it is irrelevant to the outcome of this case whether, as a

general proposition, the LDA allows courts to alter the underlying substantive

rights of the property owners. Therefore, this Court does not need to address this

issue.

Nonetheless, as I am forced to discuss it, I tend to disagree with the lead

opinion’s conclusion that “the LDA was never intended to enable a court to

establish an otherwise nonexistent property right.” Ante at 13-14. I think that

there are some flaws in the lead opinion’s reasoning and that this conclusion is

too broad.

Both MCL 560.221 and 560.226(1) state that courts may vacate, correct,

or revise a recorded plat. Section 226(1) lists several exceptions to this power,

but otherwise does not explain when or why courts should vacate, correct, or

revise a plat. The lead opinion reasons that the LDA’s grant of power to the

courts to vacate, correct, or revise a plat is not a substantive power because the

act defines a plat as a map, and everybody knows that revising a map does not

automatically revise the underlying substantive property rights. Regardless of

whether the majority on this issue is correct in concluding that the LDA does not

permit courts to alter property rights, I do not think that its reasoning is focused

on the proper question.

The relevant question is not whether a plat is a map; rather, the question is

whether the Legislature intended to give courts the power to alter substantive

property rights by revising a map under the circumstances in a given case. The

6

lead opinion gives as an example that “[i]f one ‘revises’ a map of the United

States to show Michigan encompassing half of the country, it does not make it

so.” Ante at 13. This statement is of course true of the average judge sitting at

home with a book of Rand McNally maps and a permanent marker. But, if a duly

empowered Legislature passed a statute stating that when a court revises the

boundaries of a map, that revision has the legal effect of changing the boundaries,

then a court’s revision of a map would indeed create a substantive change.3 If the

lead opinion’s conclusion is correct, the reason it is correct cannot be that a

revision to a map, by definition, can never alter substantive property rights.

In addition to disagreeing with the lead opinion’s reasoning, I tend to think

that the lead opinion’s statement that the LDA never permits courts to alter

property rights through its power to vacate, correct, or revise a plat is too broad.4

3
The act itself demonstrates that the Legislature in some instances intended
that a plat not only reflect existing property rights, but also be the sole legal basis
for creating that right. For example, MCL 560.253(1) states that “every
dedication, gift or grant to the public or any person, society or corporation marked
or noted as such on the plat shall be deemed sufficient conveyance to vest the fee
simple of all parcels of land so marked . . . .” Under this provision of the LDA, if
a plat is amended to include a dedication, then that amendment creates a property
right. In other words, the act of amending the plat also amends a property right.
4
For example, this Court has stated that § 226(1) is the exclusive remedy
for landowners seeking to vacate, revise, or correct a private dedication. Martin v
Beldean, 469 Mich 541, 542-543; 677 NW2d 312 (2004). Vacating a dedication
on a plat alters property rights; if § 226(1) is the “exclusive” way to make this
change, then it must be that the statute itself permits courts to alter property rights.
In Martin, this Court held that a plaintiff had to bring an action to void a private
dedication under the LDA and not as an action to quiet title. Martin, 469 Mich at
550-552. If the LDA was not the legal basis for the court’s power to void a

7

Instead, I would state that the Legislature intended MCL 560.221 and 560.226(1)

to permit courts to alter property rights in at least some circumstances. I will not

attempt to exhaustively determine when the LDA grants courts the power to alter

property rights because the facts of this case do not present a suitable basis for

analyzing these issues. Regardless, I believe that this Court’s approach to this

issue should be more cautious, nuanced, and case-specific than the approach

taken by the lead opinion.

CONCLUSION

I would affirm the Court of the Appeals result and vacate its reasoning. I

think that the easement language was latently ambiguous and that the

circumstances surrounding its writing show that the grantors intended plaintiffs’

property to access utilities through the central drive easement. I respectfully

dissent from the holding that the LDA never enables a court to alter property

rights.

Michael F. Cavanagh
Elizabeth A. Weaver

dedication, then this Court would have held that the plaintiff was required to bring
an action to quiet title and an action under the LDA.

8
 STATE OF MICHIGAN

SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H.
TOMECEK,

Plaintiffs-Appellees,

v No. 134665

ANDREW LUCIAN BAVAS, JOYCE
BAVAS, INEZ HILDEGARD BAVAS,
STANLEY FRANCIS STASCH, JULIA
STASCH, MARTHA STASCH, PATRICIA
M. CURTNER, TIMOTHY V. McGREE,
PETER A. STRATIGOS, ALICE M.
STRATIGOS, PAMELA KRUEGER,
DEVEREAUX BOWLY, JR., DAVID N.
DERBYSHIRE, ELLEN R. LAFOUNTAIN,
JONATHAN RODGERS, ROYAL
KENNEDY RODGERS, LEE STAHL, III,
and SUSAN STAHL,

Defendants-Appellants,
and

INDIANA MICHIGAN POWER
COMPANY, doing business as AMERICAN
ELECTRIC POWER COMPANY, INC.,
MICHIGAN DEPARTMENT OF LABOR
AND ECONOMIC GROWTH, and
BERRIEN COUNTY DRAIN
COMMISSIONER,

Defendants-Appellees,
and

DANIEL JOHNSON, SCOTT LOESS,
KATHLEEN LOESS, JANE HENKLE,
RICHARD CRAGG, LOIS ZYER, ARTHUR
C. MERTZ REVOCABLE TRUST, PETER
LEVY, BENITA LEVY, LAKESIDE
PROPERTY OWNERS, CHIKAMING
TOWNSHIP, ROBERT FORKER, JR., NEW
BUFFALO SAVINGS BANK FIFTH
THIRD BANK, SHORELINE BANK,
SEMCO ENERGY, INC., SEMCO ENERGY
GAS COMPANY, SBC AMERITECH
CORPORATION, MICHAEL L. JONES,
LAURA L. AVERY, and JULIA E.
PIETRAS,

Defendants.

WEAVER, J. (concurring in part and dissenting in part).

I partially concur with and dissent from the lead opinion’s conclusions for

the reasons stated in Justice Cavanagh’s partial concurrence and partial dissent,

which I join.

Elizabeth A. Weaver

2

 STATE OF MICHIGAN

SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H.
TOMECEK,

Plaintiffs-Appellees,

v No. 134665

ANDREW LUCIAN BAVAS, JOYCE
BAVAS, INEZ HILDEGARD BAVAS,
STANLEY FRANCIS STASCH, JULIA
STASCH, MARTHA STASCH, PATRICIA
M. CURTNER, TIMOTHY V. McGREE,
PETER A. STRATIGOS, ALICE M.
STRATIGOS, PAMELA KRUEGER,
DEVEREAUX BOWLY, JR., DAVID N.
DERBYSHIRE, ELLEN R. LA FOUNTAIN,
JONATHAN RODGERS, ROYAL
KENNEDY RODGERS, LEE STAHL, III,
and SUSAN STAHL,

Defendants-Appellants,
and

INDIANA MICHIGAN POWER
COMPANY, doing business as AMERICAN
ELECTRIC POWER COMPANY, INC.,
MICHIGAN DEPARTMENT OF LABOR
AND ECONOMIC GROWTH, and
BERRIEN COUNTY DRAIN
COMMISSIONER,

Defendants-Appellees,
and

DANIEL JOHNSON, SCOTT LOESS,
KATHLEEN LOESS, JANE HENKLE,
RICHARD CRAGG, LOIS ZYER, ARTHUR
C. MERTZ REVOCABLE TRUST, PETER
LEVY, BENITA LEVY, LAKESIDE
PROPERTY OWNERS, CHIKAMING
TOWNSHIP, ROBERT FORKER, JR., NEW
BUFFALO SAVINGS BANK FIFTH
THIRD BANK, SHORELINE BANK,
SEMCO ENERGY, INC., SEMCO ENERGY
GAS COMPANY, SBC AMERITECH
CORPORATION, MICHAEL L. JONES,
LAURA L. AVERY, and JULIA E.
PIETRAS,

Defendants.

YOUNG, J. (concurring in part and dissenting in part).

I concur with Justice Kelly’s opinion insofar as it holds that the Land

Division Act does not give trial courts the authority to alter substantive property

rights and it declines to address the common-law doctrine of easements by

necessity. I write only to express misgivings with regard to her disposition on

whether the grantors of the plaintiffs’ easement intended to give the plaintiffs

utilities access in addition to ingress and egress. Justice Kelly’s explanation that

the grantors intended that the plaintiffs use their easement in the same manner that

the defendants used their easement at the time of the grant is plausible (and quite

possibly correct).1 Nevertheless, I am not convinced that the mere fact that the

defendants have used their easement for utilities access gives the plaintiffs the

right to use their separate easement similarly. Because there is insufficient

1
Although there are many nominal defendants in this case, I use the term
“defendants” throughout this opinion to refer only to those defendants who own
property in the O.T. Henkle Subdivision.
2

evidence of the grantors’ actual intent concerning the plaintiffs’ particular

easement at the time the easement was created, I cannot assent to Justice Kelly’s

ultimate result that interprets the plaintiffs’ easement as encompassing utilities

access. I therefore respectfully dissent from Justice Kelly’s determination of the

grantors’ intent, although I concur with Justice Kelly insofar as she interprets the

Land Division Act and declines to reach the common-law doctrine of easements

by necessity.2 Rather than affirm the Court of Appeals result, which grants the

plaintiffs’ motion for summary disposition, I would instead remand this case to the

Berrien County Trial Court for trial.

Robert P. Young, Jr.
Maura D. Corrigan
Stephen J. Markman

2
Because this case came before this Court on cross-motions for summary
disposition, and because the question of the grantors’ intent would remain open on
remand, it is not necessary at this point for me to determine whether the doctrine
of easement by necessity should be expanded to include utilities access.
3