Blackhawk Development Corp. v. Village of Dexter

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 JULY 13, 2005

BLACKHAWK DEVELOPMENT CORPORATION
and DEXTER CROSSING, L.L.C.,

Plaintiffs-Appellants,

v No. 126036

VILLAGE OF DEXTER and DEXTER DEVELOPMENT,

Defendants-Appellees.

_______________________________

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

Plaintiffs sought leave to appeal from the Court of

Appeals decision affirming the trial court’s grant of

summary disposition to defendants village of Dexter and

Dexter Development. Rather than grant leave to appeal, we

reverse the judgment of the Court of Appeals and remand

this case to the trial court for further proceedings.

I. INTRODUCTION

This case requires us to examine the scope of an

easement granted by a private party to a public entity.

Specifically, we must determine whether allowing a private
property owner to construct access roads and related

amenities on property subject to an easement that was

granted to a municipality for the express purpose of

relocating and improving a public road is within the scope

of that easement. Because there is no evidence in the

record that the proposed developments fall within the scope

of the express easement, we hold that the trial court erred

by holding otherwise. Thus, we reverse the decision of the

Court of Appeals and remand this case for further

proceedings.

II. BACKGROUND

In 1990, defendant village of Dexter ordered

approximately one acre of a portion of land owned by the

Kingsley Trust, which was administered by John Kingsley,

condemned. The village intended to use the land to improve

Dan Hoey Road, which was, at the time, a gravel road that

intersected with Dexter-Ann Arbor Road in an unsafe manner.

The village planned to pave and widen Dan Hoey Road, as

well as move it slightly south.

In lieu of condemning the land, the village and the

Kingsley Trust entered into a settlement agreement through

which the trust granted the village an easement to a

portion of approximately one acre in size. The settlement

agreement stated that the trust would transfer “an easement

2

for public roadway purposes . . . .” The easement grant

read that the trust granted “an easement for the purposes

of relocating, establishing, opening and improving Dan Hoey

Road . . . .”

The village relocated Dan Hoey Road and completed its

project, but the project did not consume the entire area

subject to the easement. Eventually, the trust sold the

burdened parcel to plaintiff Blackhawk Development

Corporation, which then developed a commercial complex,

plaintiff Dexter Crossing, L.L.C., on a portion of the

property.1 The portion subject to the easement was not

developed.

Thereafter, John Kingsley, through his corporation,

defendant Dexter Development, purchased additional land

that adjoined the old Dan Hoey Road but was separated from

the new Dan Hoey Road by land subject to the easement.

Kingsley then submitted a proposal for developing his land

to the village. However, Kingsley’s plan included using

portions that were subject to the village’s easement for

the purpose of constructing access drives, building a pond,

and making other developments on that parcel.

1
For convenience, the singular “plaintiff” will refer
to Blackhawk Development Corporation.

3

 The village informed Kingsley that he would have to

buy the affected land before it would approve the

development, but plaintiff rejected Kingsley’s purchase

offers. Consequently, Kingsley’s attorney advised Kingsley

to revise his proposal by removing from the plans affecting

plaintiff’s parcel anything that could be construed as a

“private” development, but leaving developments such as

utilities, sidewalks, and access roads. Kingsley

resubmitted his revised plan and proposed to “dedicate” the

developments on the affected parcel to the village for

public use. In other words, Kingsley proposed to create

purportedly “public” developments on plaintiff’s land,

which the village could then justify by way of its

easement.

The village authorized the proposal, giving Kingsley

permission to construct developments on the subject

property, including two access roads, light poles, trees,

landscaping, pond grading, sidewalks, pipes, conduit, sewer

lines, and water lines. The access roads would use the

land subject to the easement to transect plaintiff’s

property and connect Kingsley’s property to the new Dan

Hoey Road. As part of their agreement, Kingsley

indemnified the village against legal action.

4

 Neither the village nor Kingsley informed plaintiff of

their arrangement, leaving plaintiff to discover it when

construction began. After plaintiff’s objections to the

village and to Kingsley proved unsuccessful, plaintiff sued

for injunctive relief, declaratory judgment, and trespass.

Among the facts that emerged during discovery were the

following. In a memorandum addressing the matter, village

zoning officer Janet Keller wrote that because Kingsley’s

land was “landlocked,” the village might be “in jeopardy”

if it did not approve the access road. Kingsley, however,

acknowledged that his land was not landlocked because of

two ingress and egress points at Dexter-Ann Arbor Road.

Further, Kingsley testified that he could have built his

commercial development without using the land covered by

the easement, but that he never submitted plans that did

not include land covered by the easement. He also

testified that the access drives served no other purpose

than access to the commercial development and that he only

built the west driveway because he believed the village

required it.

Zoning officer Keller testified that the village did

not request either road, but after reviewing where Kingsley

proposed to place the roads, the village asked Kingsley to

align the center road with an opposing road to form a four-

5

way intersection. Keller stated that the village was never

presented with a plan that did not include the roads and

that she did not know why the development could not proceed

without them. Keller testified that the access roads were

not an “improvement” to Dan Hoey Road. However, both she

and other village officials agreed that the access roads

contributed to the safety of the area and that Kingsley’s

development as a whole contributed to the general public

good.

Evidence from the village planner showed that the

access roads did not meet public road standards and that

the entrances were designed to meet commercial standards.

Moreover, the village attorney testified that when Dan Hoey

Road was realigned in 1990, all four of the purposes stated

in the easement grant, “relocating, establishing, opening,

and improving Dan Hoey Road,” were fulfilled. According to

the testimony, village officials had no intention to

further utilize the easement in the foreseeable future.

Defendants moved for summary disposition under MCR

2.116(C)(10),2 arguing that the proposed developments were

within the scope of the village’s easement because the

2
Defendant Dexter Development filed the initial motion
and supporting brief, and defendant village of Dexter filed
a concurring statement.

6

access roads promoted public safety and welfare.

Defendants also argued that the utilities were permissible

because the permissible uses of a public road easement

encompass more than mere surface travel. Further,

defendants contended that the use of the land covered by

the easement would serve primarily public, rather than

private, purposes.

The trial court granted defendants’ motion for summary

disposition, ruling that the terms “roadway purposes” in

the settlement agreement and “improvement” in the actual

easement grant were ambiguous. However, it found that the

developments benefited the public and were thus within the

scope of the easement.

Plaintiffs appealed the trial court’s ruling. In a

split decision, the Court of Appeals majority held that the

trial court reached the correct result, albeit for the

wrong reason. Blackhawk Dev Corp v Village of Dexter,

unpublished opinion per curiam of the Court of Appeals,

issued January 27, 2004 (Docket No. 240790). The majority

held that the language at issue was not ambiguous, but that

the proposed developments were within the scope of the

easement because they benefited the public. Notably, the

Court of Appeals examined the language of both the easement

grant and the settlement agreement. The dissenting judge

7

agreed that there was no ambiguity in the language, but he

believed that the changes were not “improvements” to Dan

Hoey Road and, thus, were outside the scope of the

easement. Plaintiffs’ motion for reconsideration was

denied, and plaintiffs sought leave to appeal in this

Court. In lieu of granting plaintiffs’ application for

leave to appeal, we ordered oral argument on the

application. 471 Mich 905 (2004).

III. STANDARD OF REVIEW

The extent of a party’s rights under an easement is a

question of fact, and a trial court’s determination of

those facts is reviewed for clear error. Unverzagt v

Miller, 306 Mich 260, 266; 10 NW2d 849 (1943), citing

Harvey v Crane, 85 Mich 316, 322; 48 NW 582 (1891). A

trial court’s dispositional ruling on equitable matters,

however, is subject to review de novo. Stachnik v Winkel,

394 Mich 375, 383; 230 NW2d 529 (1975). The decision to

grant or deny summary disposition is also reviewed de novo.

Stewart v Michigan, 471 Mich 692, 696; 692 NW2d 376 (2004).

IV. ANALYSIS

This case presents the straightforward question

whether Dexter Development’s desired developments fall

within the scope of the village of Dexter’s easement. The

inquiry does not center, as defendants seem to suggest, on

8

whether defendants’ proposed developments afford the public

at large some general benefit. Further, the analysis of

this issue is not affected by the fact that a private

developer instituted the proposed developments. Rather,

this Court must analyze simply whether the developments are

within the scope of the granted easement.

The existence of an easement necessitates a thoughtful

balancing of the grantor’s property rights and the

grantee’s privilege to burden the grantor’s estate. And

while the easement holder’s rights are ultimately

“‘“paramount . . . to those of the owner of the soil,”’”

the latter’s rights are subordinate only to the extent

stated in the easement grant. Cantieny v Friebe, 341 Mich

143, 146; 67 NW2d 102 (1954), quoting Hasselbring v Koepke,

263 Mich 466, 475; 248 NW 869 (1933), quoting Harvey, supra

at 322. Consequently, “[t]he use of an easement must be

confined strictly to the purposes for which it was granted

or reserved.” Delaney v Pond, 350 Mich 685, 687; 86 NW2d

816 (1957).

A fundamental principle of easement law is that the

easement holder—here, the village—cannot “make improvements

to the servient estate if such improvements are unnecessary

for the effective use of the easement or they unreasonably

burden the servient tenement.” Little v Kin, 468 Mich 699,

9

701; 664 NW2d 749 (2003), citing Crew’s Die Casting Corp v

Davidow, 369 Mich 541; 120 NW2d 238 (1963), Unverzagt,

supra at 265, and Mumrow v Riddle, 67 Mich App 693, 700;

242 NW2d 489 (1976). Stated differently, “‘It is an

established principle that the conveyance of an easement

gives to the grantee all such rights as are incident or

necessary to the reasonable and proper enjoyment of the

easement.’” Unverzagt, supra at 265, quoting 9 RCL, p 784.

And “[t]he use exercised by the holders of the easement

must be reasonably necessary and convenient to the proper

enjoyment of the easement, with as little burden as

possible to the fee owner of the land.” Id.

From these principles evolves a two-step inquiry:

whether the proposed developments are necessary for the

village’s effective use of its easement and, if the

developments are necessary, whether they unreasonably

burden plaintiffs’ servient estate. Id. Of course, the

need to answer the second question is obviated where the

first question is answered in the negative.

The answers to these inquiries originate in the

language or express reservations of the grant. See id. at

266-267. The task of determining the parties’ intent and

interpreting the limiting language is strictly confined to

the “four corners of the instrument” granting the easement.

10

Hasselbring, supra at 477. Only where the language in the

granting instrument is ambiguous may this Court examine

evidence extrinsic to the document to determine the meaning

within it. Little, supra at 700.

Thus, our first task is to determine whether the

language of the granting instrument is ambiguous. The

instrument states that the grantor grants to the village of

Dexter “an easement for the purposes of relocating,

establishing, opening and improving Dan Hoey Road in the

Village of Dexter, Washtenaw County, Michigan . . . .” The

only document incorporated by reference is the document

that sets forth the legal description of the land subject

to the easement. As such, our interpretation focuses on

the language, “relocating, establishing, opening and

improving Dan Hoey Road . . . .” The parties seem to agree

that out of the four terms, the term “improving” is of

paramount relevance.3

There is nothing technical or unique about the word

“improving” in this context that would require us to rely

on anything other than its common sense meaning. But the

question is not so much whether defendant Dexter

3
Notably, defendants do not argue that the
developments purport to “open” Dan Hoey Road, which
undermines the dissent’s attempt to argue otherwise.

11

Development has proposed “improvements” in the sense of

developments that help “improve” something, for certainly

these developments could be considered “improvements” in

the general sense of the word. The more refined question

is whether the developments “improve” Dan Hoey Road.4 A

close examination of the record reveals no evidence

supporting defendants’ claim that the proposed developments

are within the scope of the express easement.

According to zoning officer Keller, Kingsley’s revised

development plan included two access roads across the land

covered by the easement, and sidewalks, utilities, trees,

and “general public improvements” on that land. Clearly,

the access roads served to connect the commercial complex

to Dan Hoey Road rather than to complement Dan Hoey Road

itself. The utility, water, and sewer lines served to

connect Kingsley’s development to main utility, water, and

4
The dissent reads too much into the comment that the
installations could, on some general level, be considered
“improvements.” See post at 5-6. If the debate were truly
over whether roads, sidewalks, and grading are
“improvements,” certainly there would be as many countering
views as supportive ones. But our task is not simply to
determine whether the proposed installations are
“improvements,” but whether, as we clearly state, the
installations improve Dan Hoey Road. Likewise, dictionary
definitions of “improvement” do nothing to resolve whether
sidewalks, utilities, and lighting improve Dan Hoey Road,
so the dissent’s citation of the dictionary is ineffective.
See post at 5.

12

sewer lines. The sidewalks and lighting on the land

covered by the easement were not sidewalks and lighting for

Dan Hoey Road, but sidewalks and lighting for the private

commerce center and surrounding area. Not one of these

developments could be said to be for the purpose of

improving Dan Hoey Road.5 Without question, Kingsley’s

planned use of the land covered by the easement served the

5
Kingsley claims he believed that the village
“required” one of the access roads on his site plan, but
the evidence shows only that the village asked Kingsley to
align the road–which appeared on Kingsley’s original site
plan and every one thereafter–with an opposing road so as
to create a four-way intersection. Indeed, village zoning
officer Keller could point to nothing that required the
road, and she testified that Kingsley’s two other access
roads by way of Dexter-Ann Arbor Road were sufficient for
ingress and egress purposes. As such, to the extent
defendant Dexter Development argues that public safety
reasons compelled its use of the land subject to the
easement, we find that argument unpersuasive.

Moreover, the fact that Kingsley offered to dedicate
the developments to the public does not change the
analysis. See post at 3 n 1. While it is of course true
that the village can open streets, install sidewalks, and
landscape, see post at 10, that says nothing about whether
a village can undertake those projects under an easement it
holds. Regardless of who initiates the project, the
analysis is the same. For example, had the village
endeavored to construct these developments, we would
conduct the same analysis conducted in this case to
determine whether the proposed developments are within the
easement’s scope. It is unclear why the dissent insists
that our analysis hinges on who proposed the developments
and on subjective motivations. See post at 9-11.

13

exclusive purpose of furthering and enhancing his private

complex.6

6
The dissent proffers that Unverzagt, supra, supports
its conclusion that consistent with the parties’ intent,
the proposed developments here are reasonably necessary to
improve and open Dan Hoey Road. Post at 6-8. In
Unverzagt, this Court resolved the question of
reasonableness of use against the grantor of an easement
where the question was whether the grantor could preclude
the easement holders’ invitees from using the easement to
deliver goods to the easement holders. This Court held
that use by the invitees was incidental and necessary.
Unverzagt, supra at 265-266.

The dissent’s simplistic comparison disregards several
critical differences between Unverzagt and the case at
hand. First and foremost, the village holds the easement
in question here, not Dexter Development. Thus, the
commercial traffic will not serve the easement holder as
the delivery traffic did in Unverzagt. In that sense
alone, the commercial traffic is not “incidental” to the
easement. Moreover, this Court crafted its opinion in
Unverzagt restrictively:

This does not mean that any and all invitees
of a cottage owner may have the right to use the
streets. To so hold, would mean that a cottage
owner might invite the use of the streets by
conventions, picnics, assemblies in general.
Such use would defeat the purpose as well as the
desires of all parties. Nor do we go to the
extent of holding that hawkers and peddlers of
goods, wares and merchandise may use the private
streets in the park for their own purposes, even
at the invitation of cottage owners. [Id. at
266.]

Thus, this Court clearly recognized, as we must here,
that permitted easement use is not unlimited but must
conform to the purposes set forth by the parties in the
easement grant.

14

 Critical to our analysis is that village agents

testified that the proposed access roads were not

“improvements” to Dan Hoey Road and that none of the

proposed developments was necessary with regard to Dan Hoey

Road. Village zoning officer Keller testified that the

village had no reason to construct any of Kingsley’s

proposed developments. Clearly, the evidence fails to

establish that the proposed developments fell within the

scope of the village’s limited property interest—an

easement for the express purpose of improving Dan Hoey

Road. In fact, the developments are so clearly unrelated

to “improving” Dan Hoey Road–in both concept and physical

proximity–that they cannot be said to fall within the scope

of the village’s easement, which was secured to improve not

Further, the dissent cursorily concludes, without
record support or analysis, that “landscaping and drainage
ponds reasonably could improve Dan Hoey Road . . . ,” and
“[a]ccess drives and sidewalks would ‘improve’ and ‘open’
the road . . . .” Post at 6, 7 n 5. We disagree. First,
Dan Hoey Road was already “opened,” according to the
village. Second, the dissent asserts that landscaping and
drainage ponds “control[] rainwater runoff, thereby
enhancing the safety and life of the road.” Post at 6.
Limiting the amount of vehicles on Dan Hoey Road might
enhance the safety and life of the road as well, but not
every conceivable effect on Dan Hoey Road renders it an
“improvement.” We decline to read the word “improve” that
broadly.

15

the general surrounding area and corporate development, but

Dan Hoey Road itself.7

Where the rights to an easement are conveyed by grant,

neither party can alter the easement without the other

party’s consent.8 Douglas v Jordan, 232 Mich 283, 287; 205

7
Despite defendant Dexter Development’s heavy emphasis
on its theory that the two access roads across the land
covered by the easement are necessary for the general
safety of the area, we need not address that contention.
Officer Keller testified that having only one access point
into Kingsley’s development created additional traffic
concerns on Dexter-Ann Arbor Road. However, the need to
alleviate traffic or congestion concerns on Dexter-Ann
Arbor Road does not broaden the scope of the village’s
easement. Further, the mere fact that the village asked
Kingsley to alter his plan to align one of the access roads
with an opposing road does not speak to whether the access
road was for the purpose of improving Dan Hoey Road. Thus,
the public safety arguments advanced by Dexter Development
are misplaced.
8
We have no quarrel with the proposition that an
easement is a permanent interest in land, see post at 13,
and we do not hold otherwise. But the permanency of the
grant does not control or even speak to the way in which
the easement may be used. The dissent states that
plaintiffs “may not be heard to complain that Dexter
Development’s proposed uses involve more land than was in
service.” Id. But again, the dissent misses a finer
point. Plaintiff complains not about geography, but about
purpose. The dissent finds that the easement “contains no
language preventing use of an increased amount of the land
encompassed within it.” Id. As such, it concludes that it
can “infer that the parties intended to allow the area used
in the easement to expand to maintain the easement’s
utility.” Id.

The dissent reads its cited Restatement passage too
loosely. See post at 13-14. The Restatement does not
allow for haphazard inferences of parties’ intent. It
states, “The determination [of an easement’s scope] is

16

NW 52 (1925), citing Powers v Harlow, 53 Mich 507; 19 NW

257 (1884). When the village, as the dominant estate,

authorized developments on the servient land for the

benefit of another parcel of land, the village improperly

altered the easement without plaintiff’s consent. By so

doing, the village materially increased the burden on

plaintiff’s servient estate by imposing new burdens that

were not contemplated at the time of the easement grant,

contrary to general easement principles.9 See Delaney,

primarily one of fact, based on inferences that may be
drawn from the language and circumstances, but the outcome
in any particular case may be affected by the level of
generality with which the purpose is defined.” 1
Restatement of Property, 3d, § 4.10, comment d, p 595. The
comment goes on to explain that, for instance, if an
easement grants “access,” the word “access” may be
interpreted more broadly than if the words “ingress and
egress to people and vehicles” had been used. Thus, rather
than permitting a court to guess, the Restatement advises
that where words are more general, the intent will be
determined accordingly. Here, the task is made simpler by
the fact that we need not determine what the parties meant
by the general word “improve,” but rather what they meant
by the more specific parameter “improve Dan Hoey Road.”
The phrase “improve Dan Hoey Road” is self-limiting and
must be given its ordinary meaning. We disagree that the
fact that the phrase was not further elaborated on permits
unlimited use of the burdened land.
9
The dissent somewhat puzzlingly concludes that the
developments fall within the scope of the easement because
where there were once four residential driveways, there
would now be “only” two commercial access roads. Post at
12. Ignoring for a moment that the proposed access road
across the parcel subject to the easement does nothing to
improve Dan Hoey Road, it is difficult to understand how
one would conclude that a burden lessens, rather than

17

supra at 687; Barbaresos v Casaszar, 325 Mich 1; 37 NW2d

689 (1949). The easement was not procured for the benefit

of Kingsley’s property, nor was it procured for

developments unrelated to Dan Hoey Road that may arise in

the future. This is not to say that once the village

relocated Dan Hoey Road, it had no further rights to impose

further developments in relation to the road. But while

the village’s easement is unlimited in duration, it is not

unlimited in scope. Thus, the village was and remains

obliged to ensure that any use of the land covered by the

easement strictly comports with the purpose of the easement

as originally granted: relocating, establishing, opening,

and improving Dan Hoey Road.

Defendants argue that our inquiry regarding the scope

of the easement should extend to the language found in the

increases, when in lieu of four residential driveways,
there are instead two roads to a large commercial complex.
Not only is the dissent’s conclusion odd, it is also devoid
of record support. Another strange conclusion by the
dissent is that because plaintiff was unable to build on
the parcel, “Blackhawk’s quiet enjoyment of the parcel
would not be impermissibly disturbed by increased traffic
whether on the new access drives or on several lanes of
through traffic.” Post at 12 The fact that plaintiff
could not develop its parcel seems to us to doubly support
a conclusion that where that parcel is commercially
developed by a commercial neighbor, quiet enjoyment is
vastly disturbed. And the fact that plaintiffs did not
“question” the easement when they purchased their land does
not extinguish their right to contest improper uses of the
easement.

18

settlement agreement that was reached between Kingsley, as

a predecessor in interest to the servient estate, and the

village. The settlement agreement referred to the easement

as one for “public roadway purposes.” Defendants argue

that this language broadens the scope of the easement

beyond general private easement principles because it

references a “public roadway.” The effect, according to

defendants, is essentially that the land subject to the

easement can be used for any purpose the village desires as

long as the purpose can be said to confer some general

benefit to the public. Thus, defendants argue, because the

access roads, utilities, sidewalks, and commerce center

generally benefit the public as a whole, they are

permissible uses of the land covered by the easement.

It is true that “[i]f the text of the easement is

ambiguous, extrinsic evidence may be considered by the

trial court in order to determine the scope of the

easement.” Little, supra at 700. It is also true that

where an ambiguity exists, “the courts will try to arrive

at the intention of the parties and in accordance therewith

. . . .” Farabaugh v Rhode, 305 Mich 234, 240; 9 NW2d 562

(1943). However, considering extrinsic evidence in the

absence of ambiguous language is “clearly inconsistent with

the well-established principles of legal interpretation

19

. . . and is thus incorrect.” Little, supra at 700 n 2.

We find nothing ambiguous about the easement grant’s

limiting language. Thus, the trial court erred by

considering language extrinsic to the express easement

grant.

As a corollary, defendants further argue that because

a public entity holds the easement, the scope of

permissible uses is broader, and the easement can be used

for any public purpose. For this proposition, defendants

rely on Eyde Bros Dev Co v Eaton Co Drain Comm’r, 427 Mich

271; 398 NW2d 297 (1986), and Village of Grosse Pointe

Shores v Ayres, 254 Mich 58; 235 NW 829 (1931). We held in

Eyde that “a public easement in a highway dedicated by user

is not limited to surface travel, but includes those uses,

such as the installation of sewers, contemplated to be in

the public interest and for the public benefit.” Eyde,

supra at 286. But as correctly noted by the dissenting

Court of Appeals judge in this case, neither Eyde nor

Grosse Pointe Shores involved “a situation where the

proposed improvements ran across or under land that was

owned in fee simple by a private party and was not

established as, or being used as, a public roadway.” Slip

op at 2. Rather, those cases, at most, stand for the

proposition that an easement for roadway purposes includes

20

all appropriate purposes to which roads and streets are

actually devoted, provided that they occur on or under the

surface of the roadway itself.10 This comports with the

statutory grant for the laying of utilities “upon, over,

across, or under” public roads. See MCL 247.183(1).

However, as the dissenting Court of Appeals judge

stated in this case, “the ‘improvements’ sought by

defendants do not merely affect the surface or subsurface

of Dan Hoey Road,” but they also affect the unimproved

portion of plaintiff’s property that was subject to the

easement. Slip op at 2. Plaintiffs have not dedicated fee

simple property to a public entity for a public road.

Rather, the village holds a more limited property interest—

an express easement for the express purpose of improving

Dan Hoey Road, and nothing else. That a public entity

10
In Grosse Pointe Shores, supra at 64, we first
rejected, as a matter of public policy, certain conditions
that the defendants had attached to their dedication of
land for roadway purposes that would have placed
restrictions on the installation of sidewalks, utilities,
and sewer lines and on paving or widening the road. After
finding the conditions invalid, we outlined what types of
improvements to a highway dedicated by user were
permissible. We noted that the improvements at issue were
“in territory which had been and continued to be part of
the street.” (Emphasis added.) In Eyde, supra at 296, we
addressed the “issue of compensation for new uses of public
easements within streets dedicated by statute.” (Emphasis
added.) Thus, improvements made pursuant to a public
easement are limited to those uses that fall within the
right-of-way of the roadway itself.

21

holds an easement and the easement is for a public road

transforms neither the nature nor the scope of the granted

easement, contrary to the dissent’s attempt to do so. See

post at 5-6. “Public interest” and “public benefit” are

not valid reasons to allow the municipality to obtain more

property rights than were granted. Thus, both Eyde and

Grosse Pointe Shores are inapplicable.

V. CONCLUSION

The express language of the easement grant in this

case is not ambiguous, and there is no evidence in the

record that the proposed developments were within the scope

of the easement. As such, the village improperly

authorized the use of its easement for purposes that were

unrelated to the improvement of Dan Hoey Road. For these

reasons, we reverse the judgment of the Court of Appeals

and remand this case for further proceedings. On remand,

the trial court should enter a declaratory judgment and

grant injunctive relief in plaintiffs’ favor and conduct

further proceedings on plaintiffs’ claim for trespass

damages. We do not retain jurisdiction.

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

22

 S T A T E O F M I C H I G A N

SUPREME COURT

BLACKHAWK DEVELOPMENT CORPORATION
and DEXTER CROSSING, L.L.C.,

Plaintiffs-Appellants,

v No. 126036

VILLAGE OF DEXTER and DEXTER DEVELOPMENT,

Defendants-Appellees.
_______________________________

YOUNG, J. (concurring).

I fully concur with the majority opinion. I write

separately, however, in response to the dissent’s contrary

assertion, to emphasize that the majority opinion does not

suggest that John Kingsley’s motivations are dispositive of

the village’s motivations. The majority opinion merely

provides a complete recitation of the background

information for the purpose of providing a full

understanding of the transaction. Because he is a third

party who enjoys no cognizable interest in the property

burdened by the easement, Kingsley’s purposes in proposing,

initiating, designing, or financing the improvements to the

easement are absolutely irrelevant in determining whether
the easement holder may lawfully make the proposed

developments to the easement.

Thus, as a threshold matter, the easement holder must

assert that the proposed improvements to the easement are

within the scope of the easement. Secondly, the

developments to the easement must be objectively congruent

with the purpose permitted in the easement. In this case,

the scope of the easement is to “improv[e] Dan Hoey Road

. . . .” The village does not maintain that the purpose

behind the proposed developments is to “improve Dan Hoey

Road.” Because the village failed to make the initial

showing that the developments were initiated for the

purpose of improving Dan Hoey Road, there is no basis to

conclude that the desired developments are objectively

within the scope of the easement. Thus, the proposed

developments are outside the scope of the easement as a

matter of law.

Robert P. Young, Jr.

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 S T A T E O F M I C H I G A N

SUPREME COURT

BLACKHAWK DEVELOPMENT CORPORATION,
a Michigan corporation, and
DEXTER CROSSING, LLC, a Michigan
limited liability company,

Plaintiffs-Appellants,

v No. 126036

VILLAGE OF DEXTER and
DEXTER DEVELOPMENT,

Defendants-Appellees.
_______________________________

KELLY, J. (dissenting).

Defendant village of Dexter obtained the easement that

is under scrutiny in this case to improve Dan Hoey Road.

Defendant Dexter Development proposed to install utility

lines, street lighting, sidewalks, and landscaping on the

property subject to the easement and dedicate them to the

village. It also proposed to widen one private access

drive on the property and consolidate into one three other

private access drives that connect Dan Hoey Road with the

adjacent private parcel.

The majority holds that these projects are not within

the scope of the easement. To reach this conclusion, it

erroneously relies on the subjective motivation for the

projects. But the motivation should be irrelevant in
determining whether a proposed use lies within the scope of

an easement.

Because I believe that the projects in question open

and improve Dan Hoey Road, they fall within the scope of

the easement. Hence, I would affirm the decisions of the

trial court and the Court of Appeals in favor of

defendants.

FACTUAL BACKGROUND

The village obtained an “easement for the purposes of

relocating, establishing, opening and improving Dan Hoey

Road” from Dexter Development, which owned the land. The

village used the easement to relocate the road to the south

and to widen it.

The property to the north of the road had been divided

into four parcels. Each had direct access to the old road.

To create access for them to the new Dan Hoey Road, the

village installed four new access drives. The old and the

new roads together with the old and new access drives are

on the land that is subject to the easement. Dexter

Development did not object. Moreover, plaintiff Blackhawk

Development had not objected to continued use of the drives

when it bought the land over which the easement runs.

Dexter Development later acquired the four parcels to

the north of the road in the hope of developing them. It

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wished to have three of the four access roads consolidated

into one, the fourth widened, and street lighting,

landscaping, sidewalks, and underground utilities installed

on the easement property. Eventually, it obtained a

license from the village to make the improvements on the

easement property itself. In its brief, Dexter Development

indicated that it promised to dedicate the improvements to

public use.1

Plaintiff Blackhawk Development, which had refused to

sell to Dexter Development the parcel over which the

easement runs, filed suit to enjoin construction of the

improvements. Plaintiffs contended that the projects were

not to improve Dan Hoey Road.

ANY PROPOSED USE OF AN EASEMENT IS REQURIED TO BE
WITHIN THE EASEMENT’S SCOPE

The purpose of an easement is determined by the

parties and ascertained by applying principles similar to

those used when contracts are construed. 1 Restatement

Property, 3d, § 4.1, comment d, p 499 (2000). The terms of

the easement conveyance are given their ordinary meaning in

light of the surrounding circumstances. Newaygo Mfg Co v

1
I do not represent that Dexter Development or its
owner acted as the village’s agent. Ante at 13 n 5.
Rather, Dexter Development attempted to do what the village
could have done with the intention of dedicating the
improvements to the public.

3

Chicago & W M R Co, 64 Mich 114, 122-123; 30 NW 910 (1887);

25 Am Jur 2d, § 18, p 516, § 73, p 571; 1 Restatement

Property, 3d, § 4.1, comment d, p 499. If a specific use

is not enumerated in the easement conveyance, the

surrounding circumstances may be considered to ascertain

the intent of the parties. Newaygo at 122-123, 1

Restatement Property, 3d, § 4.10, comment a, p 592, and

comment d, p 595. See also Thies v Howland, 424 Mich 282,

293; 380 NW2d 463 (1985).

The majority agrees with the principle enunciated by

this Court in Unverzagt v Miller2 that “‘[t]he use exercised

by the holders of the easement must be reasonably necessary

and convenient to the proper enjoyment of the easement,

with as little burden as possible to the fee owner of the

land.’” Ante at 10, quoting Unverzagt at 265.

In Unverzagt, the defendant granted the plaintiffs an

easement to use the private streets of the subdivision to

gain access to their cottages. The plaintiffs wanted local

merchants to be able to deliver goods to them. The

defendant claimed that the easement did not permit others,

not social guests of the plaintiffs, to use the streets

without the defendant’s permission.

2
306 Mich 260; 10 NW2d 849 (1943).

4

 This Court held that the condition laid down by the

defendant unreasonably restricted the right of the

plaintiffs. The proper test, we ruled, is whether it was

reasonably necessary for the use and enjoyment of the

easement that plaintiffs could invite nonsocial guests to

use the private streets. We held that holders of the

easement had the right to use it limited only by what was

necessary to and reasonable in its use. This included

allowing nonsocial guests to make deliveries over it. It

did not include use by the general public. Unverzagt at

265-267.

In this case, the easement is “for . . . opening and

improving Dan Hoey Road.” Sidewalks, utilities and

lighting systems are improvements to highways. Black’s Law

Dictionary (6th ed), p 757. Despite implications to the

contrary,3 the majority opinion concedes that Dexter

Development’s proposed projects are improvements. Ante at

12.4

3
Ante at 13 n 5, 15 n 6.
4
See also Warren v Grand Haven, 30 Mich 24, 27-28
(1874) (dedication of land to a roadway includes
constructing sewers), Village of Grosse Pointe Shores v
Ayres, 254 Mich 58, 64; 235 NW 829 (1931) (sewer, water,
gas, lighting, and telephone systems are highway
improvements).

5

 It is readily apparent that landscaping and drainage

ponds reasonably could improve Dan Hoey Road by controlling

rainwater runoff, thereby enhancing the safety and life of

the road. Access drives and sidewalks would “improve” and

“open” the road by facilitating public access to and from

it by vehicles and pedestrians on the north. By granting

Dexter Development permission to install these

improvements, the village authorized the improvement and

opening of Dan Hoey Road.

The majority opinion’s factual comparison of this case

with Unverzagt shows that there are limits to Unverzagt’s

application here. Ante at 14 n 6. The easement in that

case was private and the issue concerned use of an easement

by invited guests of the easement holders. Here, the

easement is held by a government entity and is for a road

used by the general public. An easement to improve and

open a public road is by its terms more expansive than an

easement to access a private road.

The Court’s decision in Unverzagt to prohibit general

public use was necessary to fulfill the parties’ intentions

to create a private easement to allow access to certain

cottages. The ruling disallowed use of the easement for

purposes other than access, such as picnics, because they

would defeat the purpose of the easement.

6

 In the case before us, the property owner granted an

easement for public purposes to a governmental entity. The

parties intended to create an easement that inherently

encompassed broader uses than those allowed in Unverzagt.5

The surrounding circumstances confirm that the parties

who created the easement intended that it could be used for

projects such as those proposed by Dexter Development. The

grantor’s view of the scope of the easement is more

persuasive of the scope than the view of a later purchaser

of the burdened estate. Crew’s Die Casting Corp v Davidow,

369 Mich 541, 546; 120 NW2d 238 (1963).6 A party may not

unilaterally change the scope of an easement once conveyed.

5
The majority’s discussion of Eyde Bros Dev Co v Eaton
Co Drain Comm’r, 427 Mich 271; 398 NW2d 297 (1986), and
Ayres, supra, does not support its determination of the
scope of this easement. Ayres involved an express grant
and Eyde Bros involved a highway created for public use.
Both easements were geographically limited to the roadways
involved.

In this case, there is no requirement that the
proposed improvements be on or under the existing roadway.
This easement explicitly encompasses a much larger area.
As in Ayres, the improvements would be on the portion
subject to the easement, and they would directly affect the
road. They would open it in the case of the access drives
and improve it in the case of the lighting, sidewalks,
driveways, and landscaping.
6
See also Schumacher v Dep’t of Natural Resources, 256
Mich App 103, 107; 663 NW2d 921 (2003), citing Tobias v
Dailey, 196 Ariz 418, 421; 998 P2d 1091 (Ariz App, 2000);
Tungsten Holdings, Inc v Kimberlin, 298 Mont 176, 182; 994
P2d 1114 (2000); Thompson v Whinnery, 895 P2d 537, 541-542
& n 8 (Colo, 1995).

7

Schadewald v Brulé, 225 Mich App 26, 36; 570 NW2d 788

(1997), citing Douglas v Jordan, 232 Mich 283, 287; 205 NW

52 (1925). See also Schumacher v Dep’t of Natural

Resources, 256 Mich App 103, 106; 663 NW2d 921 (2003).

The village obtained an easement over the whole parcel

rather than merely over the new roadbed. The Court of

Appeals wrote that the village’s attorney testified

the crescent-shaped piece of land . . . was meant
to be used to provide rights of way to the north
residences that were separated from the road.
[Unpublished opinion per curiam of the Court of
Appeals, issued January 27, 2004 (Docket No.
240790).]

Dexter Development was owned by the grantor of the

easement. His failure to object to the access drives when

he granted the easement suggests that the parties who

created it understood that opening the road included

building access roads.

The majority opinion fails to take proper account of

the factual circumstances of this case. I would hold that,

because Dexter Development’s activities will improve and

open Dan Hoey Road, they are within the scope of the

easement.

THE SUBJECTIVE MOTIVATION TO USE AN EASEMENT IS
IRRELEVANT

Motive, in the strict sense, is distinct from purpose.

Motive has been described as the desire that prompts a

8

person to act, whereas purpose is the result to be

obtained. Hudson v American Oil Co, 152 F Supp 757, 770

(ED Va, 1957). Courts do not normally inquire into the

motive behind the exercise of a right. Burke v Smith, 69

Mich 380, 388; 37 NW 838 (1888).

The majority opinion asserts that its analysis does

not consider that these improvements were initiated by a

private developer. Ante at 9. But the majority’s

subsequent focus on the fact that the improvements in

question are being proposed at the behest of a private

developer belies this assertion. The opinion states,

“[Dexter Development’s] planned use of the land covered by

the easement served the exclusive purpose of furthering and

enhancing [its] private complex.” Ante at 13-14. The

majority asserts that defendant Dexter Development sought

to use the village’s easement to accomplish something it

could not accomplish otherwise. Ante at 4.

These considerations are improper. The Court’s

examination of the terms of the conveyance and the

surrounding circumstances should be an objective inquiry.

The subjective motivations of the interested parties are

irrelevant. The pertinent question is whether the

improvements fulfill the easement’s purpose to improve and

open Dan Hoey Road. The village is not obligated to

9

justify its motives, as the majority and concurrence seem

to require.

Also, the fact that Dexter Development rather than the

village is arguing for the improvements is not remarkable.

Dexter Development agreed to indemnify the village against

legal action arising from the proposed improvements.

Hence, it is to be expected that Dexter Development would

advance the legal arguments supporting the proposed

improvements in place of the village.

When viewed objectively, the purpose of the

improvements is to open and improve the road. The fact

that a developer seeks to implement them rather than the

village has no legal relevance. The improvements could be

undertaken by the village directly, at its discretion.

Villages may open streets. MCL 67.12. They may install

sidewalks or require property owners to install them. MCL

67.8. They may also landscape. MCL 67.21.

Moreover, the village was not required to have made a

decision to further improve and open Dan Hoey Road before a

developer requested it, as the majority implies. Ante at

6. It could decide to install landscaping and sidewalks

for aesthetic reasons at any time. Also, it could decide

at any time to install the improvements in question to

10

enhance the road’s safety, longevity, and utility as a

transportation artery.

Justice Young in his concurrence asserts without

reference to authority that the village has an initial

burden to show that the proposed improvements are within

the scope of the easement. Such a burden contradicts

standard practice that puts the onus on the party making a

claim to articulate and substantiate it. See MCR

2.116(c)(8). In this case, the burden rightfully is on

plaintiffs to assert and show that the proposed

improvements exceed the scope of the easement. Stewart v

Hunt, 303 Mich 161, 163; 5 NW2d 737 (1942).

Justice Young appears to be suggesting as well that

the village has the initial burden of showing that the

underlying motivation for the improvements is consistent

with the scope of the easement. This is inaccurate, and it

belies his concurring argument that the parties’

motivations are irrelevant to the disposition of the case.

THE PROPOSED USES DO NOT
UNREASONABLY BURDEN THE SERVIENT ESTATE

This Court has held that, where broad language in an

easement permits uses not stated, those uses must not

impose an additional or increased burden on the servient

estate. Crew’s Die Casting Corp, supra at 546, quoting

11

Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957). In

this case, the access drives and related improvements do

not increase the burden. They fit squarely within the

scope of what the parties intended. Where there were four

access drives, there would be only two. They would

consolidate the traffic running over the access drives.

Plaintiffs’ burden would not increase by virtue of the

fact that the access drives would service a commercial

development rather than four residences. This Court has

held that, generally speaking, a mere increase in the

number of persons using an unlimited right-of-way to which

land is subject is not an unlawful additional burden.

Henkle v Goldenson, 263 Mich 140, 143; 248 NW 574 (1933).

In theory, Dan Hoey Road could be opened to encompass

several lanes of through traffic over the entire parcel.

If so opened, the increased traffic would not necessarily

exceed the scope of this unlimited easement to open the

road.

Under the village’s zoning requirements, Blackhawk

could not build on the parcel. Blackhawk’s quiet enjoyment

of the parcel would not be impermissibly disturbed by

increased traffic whether on the new access drives or on

several lanes of through traffic.

12

 Plaintiffs may not be heard to complain that Dexter

Development’s proposed uses involve more land than

previously was in service. An easement is normally a

permanent interest in land. 1 Restatement Property, 3d, §

4.1, comment b, p 498. This one contains no language

preventing use of an increased amount of the land

encompassed within it. Thus, I infer that the parties

intended to allow the area used in the easement to expand

over time to maintain the easement’s utility. 1

Restatement Property, 3d, § 4.10, p 592.

Plaintiffs should have expected that improvements of

the kind contemplated here could be installed at some

future day. They may not be heard to complain that that

day has come. They have no grounds to assert that they did

not understand the broad intention of the parties who

created the easement. They had record notice that the

easement was in part to open and improve the road.

Plaintiffs had inquiry notice of access drives for the

use of the property owners to the north, and they never

questioned their propriety when they acquired the property.

Although there were no distinct easements in the record for

each driveway, plaintiffs had to know that the easement

included access drives.

13

 The effect of the proposed improvements on the

servient estate in this case can be compared with the

situation in Delaney, supra. There, the easement was

between private parties for lake access. The Court

correctly held that

[a] principle which underlies the use of all
easements is that the owner of an easement cannot
materially increase the burden of it upon the
servient estate or impose thereon a new and
additional burden. See 17A Am Jur, Easements, §
115, p 723. [Delaney at 687.]

Mooring boats and sunbathing were not inherent in providing

access to the lake, and they increased the burden on the

servient estates. Id. By contrast, here the proposed

improvements open Dan Hoey Road and improve it, and they do

not increase the burden on the servient estate.

CONCLUSION

It is irrelevant in this case that Dexter Development

is a private developer. Its proposed projects are

compatible with the purpose of and fall within the scope of

the easement, which is to open and improve Dan Hoey Road.

The actions of the parties who created the easement confirm

this. Moreover, Dexter Development’s proposed improvements

do not unreasonably burden plaintiffs’ estate.

14

 I would affirm the decisions of the Court of Appeals

and of the trial court. Dexter Development’s proposed

projects are within the scope of the easement.

Marilyn Kelly

15