                     STATE OF MICHIGAN

                        COURT OF APPEALS



ERIC COLTHURST,                                    UNPUBLISHED
                                                   June 14, 2016
          Plaintiff-Appellee,

v                                                  No. 323539
                                                   Lenawee Circuit Court
DENNIS FREDERICK BRYAN, TERRY                      LC No. 13-004774-CH
MICHAEL SIEDLAK, FRED IMM, JASON
DEAN IMM, THOMAS K. KISSEL, JOHN
FRANCIS TETREAULT, DONNA RAMSEY-
BLACK, also known as DONNA RAMSEY
BLACK,

          Defendants/Third-Party Plaintiffs-
          Appellants,

and

MARGUERITE DLAMATER SKEELS, also
known as MARGUERITE DLAMTER SKEELS,

          Defendant/Third-Party Plaintiff,

and

TOWNSHIP OF CAMBRIDGE,

          Defendant/Third-Party Defendant-
          Appellee,

and

LENAWEE COUNTY ROAD COMMISSION
and DEPARTMENT OF ENVIRONMENTAL
QUALITY, also known as MDEQ,

          Defendants,

and


                                             -1-
CLARA OSER, also known as CLARA ANN
GUENTHER, PAUL GUENTHER and
BARBARA JANNUZZI,

           Defendants/Third-Party
           Defendants/Cross-Plaintiffs,

and

LENAWEE COUNTY DRAIN
COMMISSIONER, DOUGLAS BEERENS,
DENISE BEERENS, ROBERT GEORGE
PANZOFF, RAYMOND DARDZINSKI,
BONNIE DARDZINSKI, CHARLES GAGNEAU
and BETTY GAGNEAU, TRUSTEES OF THE
CHARLES & BETTY GAGNEAU TRUST,
RANDALL ROWLSON, GLENDA ROWLSON,
RONALD R. STEELE, KATHY E. STEELE,
CHRISTOPHER J. WILLIAMS, also known as
CHRISTOPHER J. WILLIAMSON, CHARLES
GAGNEAU, BETTY GAGNEAU, RICHARD
GILBO, GAIL LYNN GILBO, DENNIS BRYAN
and CHARLENE BRYAN, TRUSTEES OF THE
BRYAN FAMILY TRUST, DANIEL
PEDERSON, CARRIE PEDERSON, SUSAN
ALDRICH, SHIRLEY L. KANE, STUART
STELLAR, MARCUS WARREN, LISE
WARREN, NICHOLAS KISSEL, THOMAS
KISSEL, JOHN KISSEL, JR., GERY KISSEL,
TIMOTHY W. ETUE, ANN MARIE ETUE,
KENNETH POLLACK, GERALD
BLANCHETTE, RICHARD FAUST, DONNA J.
FAUST, SUSAN M. COLTHURST, NICHOLAS
E. CLAPSADIE, JOAN CHANNELL,
ANTHONY D. KOPAS, RUSSELL R. BROWN,
SUSAN M. BROWN, JEFFREY R. FRASER, also
known as JEFFREY B. FRASER, DANIELLE E.
FRASER, JAMES B. ROOS and ARLENE L.
ROOS, TRUSTEES OF THE JAMES B. &
ARLENE L. ROOS TRUST, STANLEY G.
DIROFF, ELLEN M. DIROFF, CLIFTON L.
PHILLIPS, and BARBARA PHILLIPS,

           Third-Party Defendants,

and

                                          -2-
JOHN J. BLANCHETTE, SR., FRANCINE
BLANCHETTE, also known as CHERYL
FRANCINE BLANCHETTE, also known as
FRANCES BLANCHETTE, JOSEPH J.
ORLANDO and MICHELE M. ORLANDO,

               Third-Party Defendants/Cross-
               Defendants.


Before: JANSEN, P.J., and O’CONNELL and RIORDAN, JJ.

PER CURIAM.

        Defendants/third-party plaintiffs-appellants (nongovernmental defendants)1 appeal by
leave granted2 the order granting summary disposition to third-party defendants and dismissing
the nongovernmental defendants’ claim of prescriptive easement, and the order granting
plaintiff’s motion for partial summary disposition, reaffirming Elm Court as a public road end,
and granting plaintiff’s motion to dismiss the nongovernmental defendants’ affirmative defense
of prescriptive easement over Elm Court. We affirm.

                                 I. FACTUAL BACKGROUND

        This case arises from a dispute regarding the nongovernmental defendants’ activities
involving Elm Court and Wamplers Lake in Cambridge Township, Michigan. Elm Court is a 20
foot wide by 50 foot long right of way located on the shore of Wamplers Lake. Plaintiff owns a
cottage on the shore of Wamplers Lake. Plaintiff filed a three-count complaint alleging (1)
violation of the scope of the dedication of Elm Court in the First Addition to the Oak Shade Park
subdivision plat (the plat), (2) violation of public trust, and (3) seeking injunctive relief relating
to the use of Elm Court. The first amended complaint alleged that, in the summer, individual
defendants used Elm Court to moor their boats and pontoons, erect docks, and install boat lifts.
The complaint also alleged that individual defendants used the area “to store all or part of these
things on Elm Court during the winter.” According to plaintiff, a private dock erected at the end
of Elm Court has three to four pontoons and three boats moored at its location every summer,
and the accompanying boat lifts with canopies block his view of Wamplers Lake. The private
dock was erected during the summer of 2012. Plaintiff asserted that the erection of the private
dock was outside of the scope of the dedication of the plat, and that it contravened relevant
Michigan case law, as well as pertinent provisions of the natural resources and environmental


1
  In the trial court, defendants/third-party-plaintiffs were referred to as the “nongovernmental
defendants” to distinguish them from governmental entities that were also parties.
2
 Colthurst v Bryan, unpublished order of the Court of Appeals, entered March 31, 2015 (Docket
No. 323539).


                                                 -3-
protection act, MCL 324.30101 et seq. (the Act). The nongovernmental defendants filed an
answer contending that Elm Court was not a road end, as well as an accompanying motion for
summary disposition on the basis that plaintiff lacked standing to assert his claims. They
admitted to seasonal use of the dock for the last 50 to 75 years.

        Plaintiff filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10),
arguing, as relevant to this appeal, that factual issues did not exist with regard to whether Elm
Court was a “public road end” and a “public road” as defined in MCL 324.30111b(6)(b) and (c).3
As relevant to this appeal, plaintiff argued that an abundance of Michigan authority governed the
permissible use of a public road that ends at the shore of an inland lake or stream. The
nongovernmental defendants did not file a response to plaintiff’s motion for partial summary
disposition, a fact confirmed by plaintiff on the record during the motion hearing. The trial court
ruled that Elm Court was a public road end. The court reasoned as follows:

                I am going to follow the letter of the law. Looking at the cases that I have
       seen, I think it is pretty clear that this is, in fact, a public road end as that term is
       defined by MCL 324.30111b(6)(c); “the public does have access to and from the
       water accordingly, but, the public has no right to erect a non-public dock, or, to
       install boat lifts in order to moor boats permanently or overnight at this location”
       pursuant to the case law and to the statute. So, I am finding that Elm Court is a
       public road end, and, granting the Plaintiff’s motion to that effect.

The nongovernmental defendants filed a motion to stay enforcement of the trial court’s order
limiting the seasonal mooring of boats and the erection of a private dock. The nongovernmental
defendants subsequently filed their first amended answer and affirmative defense alleging
prescriptive easement. They also filed a third-party complaint, alleging a prescriptive easement
over Elm Court. Plaintiff moved to dismiss the nongovernmental defendants’ affirmative
defense of prescriptive easement, arguing, in relevant part, that Michigan law did not support
their claim of prescriptive easement against a governmental entity. The nongovernmental
defendants subsequently filed their first amended third-party complaint, alleging a private
prescriptive easement to “include the right to moor seven boats on a seasonal basis on a 150 foot
dock” for the nongovernmental defendants’ exclusive use. Plaintiff filed a response to the
nongovernmental defendants’ motion to stay enforcement of the trial court’s November 25, 2013
order, arguing, in relevant part, that the nongovernmental defendants had not satisfied the
requirements of MCR 2.612(C)(1) to warrant relief from the trial court’s prior judgment.

      At the corresponding hearing, the trial court reaffirmed its previous ruling from
November 2013, concluding that Elm Court was a “public road end” as defined by MCL
324.30111b(6)(c) before its June 2014 amendment. The trial court also granted plaintiff’s
motion to dismiss the nongovernmental defendants’ affirmative defense of a prescriptive
easement, as well as third-party defendant Cambridge Township’s motion for summary


3
 MCL 324.30111b(6)’s language was subsequently revised, effective June 12, 2014, to omit the
definition of “public road” and revise the definition of “public road end.” 2014 PA 168.


                                                 -4-
disposition of the nongovernmental defendants’ claim of prescriptive easement. The trial court
entered the two orders from which the nongovernmental defendants appeal.

                                      II. PUBLIC ROAD END

        The nongovernmental defendants argue that the court erred in concluding that Elm Court
is a public road end and in granting summary disposition on this issue. They further argue that
the court abused its discretion in denying the nongovernmental defendants’ motion seeking relief
from judgment pursuant to MCR 2.612(C). We disagree.

        The trial court’s ruling at issue on appeal followed the nongovernmental defendants’
motion to stay enforcement of the trial court’s November 25, 2013 order, in which the
nongovernmental defendants relied on MCR 2.612(C)(1)(b) and (f). This Court reviews for an
abuse of discretion a trial court’s decision on a motion filed pursuant to MCR 2.612(C)(1).
Peterson v Auto-Owners Ins Co, 274 Mich App 407, 412; 733 NW2d 413 (2007). To the extent
that the trial court’s ruling hinged on its interpretation of MCL 324.30111b, the interpretation
and application of a statute is reviewed de novo. Detroit Pub Sch v Conn, 308 Mich App 234,
246; 863 NW2d 373 (2014).

       The trial court’s ruling at issue on appeal reaffirmed its earlier ruling from November 4,
2013, which was made in the context of plaintiff’s motion for partial summary disposition
pursuant to MCR 2.116(C)(10). A trial court’s decision granting summary disposition is
reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

       A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
       In evaluating a motion for summary disposition brought under this subsection, a
       trial court considers affidavits, pleadings, depositions, admissions, and other
       evidence submitted by the parties in the light most favorable to the party opposing
       the motion. Where the proffered evidence fails to establish a genuine issue
       regarding any material fact, the moving party is entitled to judgment as a matter
       of law. [Id. at 120 (citations omitted).]

        At the time the trial court rendered its ruling on November 4, 2013, concluding that Elm
Court was indeed a public road end as defined by the Act, the statute provided, in pertinent part,
as follows:

              (1) A public road end shall not be used for any of the following unless a
       recorded deed, recorded easement, or other recorded dedication expressly
       provides otherwise:

              (a) Construction, installation, maintenance, or use of boat hoists or boat
       anchorage devices.

                 (b) Mooring or docking of a vessel between 12 midnight and sunrise.

                 (c) Any activity that obstructs ingress to or egress from the inland lake or
       stream.


                                                 -5-
               (2) A public road end shall not be used for the construction, installation,
       maintenance, or use of a dock or wharf other than a single seasonal public dock or
       wharf that is authorized by the local unit of government, subject to any permit
       required under this part. This subsection does not prohibit any use that is
       expressly authorized by a recorded deed, recorded easement, or other recorded
       dedication. This subsection does not permit any use that exceeds the uses
       authorized by a recorded deed, recorded easement, other recorded dedication, or a
       court order.

                                              * * *

               (6) As used in this section:

               (a) “Local unit of government” means the county, township, city, or
       village with jurisdiction over a public road.

                (b) “Public road” means a county road or a township, city, or village street
       that is open for use by the public.

               (c) “Public road end” means the terminus of a public road at an inland lake
       or stream. [2012 PA 56.]

        The Act was subsequently amended by 2014 PA 168, which took effect on June 12, 2014,
and, as relevant to this appeal, subsection (6) was amended, and now provides, in pertinent part,
as follows:

               As used in this section:

              (a) “Local unit of government” means a township, city, or village in which
       the public road end is located.

              (b) “Public road end” means the terminus at an inland lake or stream of a
       road that is lawfully open for use by the public. [MCL 324.30111b(6).]

        As a preliminary matter, it must be noted that once MCL 324.30111b was amended, the
parties did not address the issue whether Elm Court met the new definition of “public road end”
as set forth in the Act. Indeed, the trial court’s ruling during the hearing on defendants’ motion
to stay enforcement of the November 25, 2013 order confirms that the trial court interpreted the
earlier version of the statute. In other words, during the August 8, 2014 motion hearing, the trial
court and the parties did not refer to the fact that the legislation had been amended. While the
trial court did not consider the amended language of the statute, “this Court ‘may review an
unpreserved issue if it presents a question of law and all the facts necessary for its resolution are
before the Court.’ ” Henderson v Dep’t of Treasury, 307 Mich App 1, 8; 858 NW2d 733 (2014)
(citation omitted).

       In this Court’s decision in Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich
App 83, 87-88; 662 NW2d 387 (2003), the plaintiff, Higgins Lake Property Owners Association
(the property association), and several individual plaintiffs filed several actions that were

                                                -6-
consolidated on appeal, asking for declaratory judgment concerning the permissible use of road
ends as set forth in the relevant subdivision plats. Similar to the instant case, owners of back lots
in the Higgins Lake subdivisions, as well as members of the general public, had used the road
ends for “lounging, sunbathing, and picnicking, and [had] also moored boats and placed boat
hoists at the road ends.” Id. at 88. The plaintiffs asserted that the activities were outside of the
scope of the property’s plat dedication and moved the trial court to enjoin further use of the road
ends. Id. Accordingly, the Higgins Lake Court was asked to consider “the scope of the public’s
right to use the ends of roads that terminate at the edge of Higgins Lake (road ends) in several
subdivisions around the lake.” Id. This required the Higgins Lake Court to consider the
permissible use of the road ends as set forth by the governing subdivision plats that had
dedicated the streets and alleys in the subdivision “ ‘to the use of the public.’ ” Id. This Court in
Higgins Lake recognized “that the intent of the [subdivision] grantor controls the scope of the
dedication.” Id. The Higgins Lake Court also held that “the scope of a dedication of land to
public use in a subdivision plat depends on the intent of the dedicator, and public ways that
terminate at the water are presumed to have been intended to provide access to the water.” Id. at
96.

       Considering the scope of the use the public may make of the water where a public way
terminates at the water’s edge, the Higgins Lake Court restated the applicable law from this
Court’s prior decision in Jacobs v Lyon Twp (After Remand), 199 Mich App 667, 671-672; 502
NW2d 382 (1993):

       Publicly dedicated streets that terminate at the edge of navigable waters are
       generally deemed to provide public access to the water. The members of the
       public who are entitled to access to navigable waters 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. The right of a municipality to build a wharf or dock at
       the end of a street terminating at the edge of navigable waters is based upon the
       presumption that the platter intended to give access to the water and permit the
       building of structures to aid in that access. The extent to which the right of public
       access includes the right to erect a dock or boat hoists or the right to sunbathe
       and lounge at the road end depends on the scope of the dedication. The intent of
       the dedicator is to be determined from the language used in the dedication and
       the surrounding circumstances. [Higgins Lake, 255 Mich App at 99 (citations
       and quotation marks omitted; emphasis added).]

        This Court also recognized that (1) the determination of the dedicators’ intent is a fact-
specific inquiry, (2) the burden is on those seeking to establish the parameters of access to water
at a public road end to “establish that anything other than mere access to the lake was intended,”
and (3) evidence of historical uses of public road ends after the dedication of a plat are not useful
in the determination of the dedicators’ intent. Higgins Lake, 255 Mich App at 101-103.

        In ruling on the nongovernmental defendants’ motion to stay enforcement of its earlier
order, the trial court, after quoting its earlier bench ruling from November 4, 2013, gave the
following ruling from the bench:


                                                -7-
               “A public road end means the terminus of a public road at an inland, lake,
       or, stream.[”]

                I have been out, pursuant to the request of the parties, and taken a look at
       Elm Court. I don’t believe that there could be any other way to look at this area
       as being other than the terminus of a public road at an inland, lake, or, stream.
       Looking at the exhibits that were provided to the court by the parties, which I
       have gone through as well as reviewed the cases again. We did have presented by
       [plaintiff] Mr. Colthurst, exhibit one on his brief in support of his answer to
       Defendant’s Motion to Stay Enforcement of the Order. It has another photograph
       of the Lenawee County----[aerial] photograph of the area in question. We also
       had contained in that same document exhibit eight; the Elm Street Court rules and
       regulations. In looking through those it does appear as if the understanding was
       that this is a road end that was off the end of Elm Street; between Elm Street and
       the lake front. But, I believe that all the evidence is pretty overwhelming that this
       is, in fact, a public road end. I don’t know how this court could rule otherwise, or,
       reconsider the prior ruling of the court.

       The trial court’s ultimate legal conclusion on the issue of Elm Court being a public road
end was correct, where the record evidence demonstrated that (1) Elm Court was a public road
open for use by the public, MCL 324.30111b(6)(b), and (2) that it ended at an inland lake, MCL
324.30111b(6)(c). Similarly, the trial court’s conclusion also met the revised requirements of
MCL 324.30111b, effective June 12, 2014, which defines a public road end as “the terminus at
an inland lake or stream of a road that is lawfully open for use by the public.” MCL
324.30111b(6)(b).

        Perhaps the most important evidence confirming that Elm Court was a public road open
for use of the public that ended at an inland lake is the plat. The plat clearly provides that Elm
Court is “hereby dedicated to the use of the public.” Plaintiff also presented the trial court with
responses to interrogatories and requests for production of documents from nongovernmental
defendants Terry Michael Siedlak, Thomas K. Kissel, John Francis Tetreault, and Jason Dean
Imm, confirming that as backlot owners in the subdivision, they all had access to Wamplers Lake
by way of Elm Court. Further, the Elm Street Court Rules and Regulations clearly provide that
“[a]ny person who uses the lake, dock, or easement is deemed to have knowledge of, and
consented to be bound by these Rules and Regulations.” The rules and regulations also provide
that guests of property owners are permitted to use Wamplers Lake “only when invited and in the
company of the property owner.” These rules clearly contemplate members of the public using
Elm Court. Moreover, while the nongovernmental defendants point to the fact that Elm Court is
merely a grassy area of land, it is the use by the public which characterizes it as a public road
end, rather than the character of its terrain. Accordingly, the trial court’s conclusion that Elm
Court was a public road end was correct because the record evidence confirmed that Elm Court
was a public road open for use by the public. See MCL 324.30111b(6)(c).

       The trial court also considered and rejected the nongovernmental defendants’ argument,
which they also advance on appeal, that the dedication of Elm Court was not properly accepted
by any public authority, and that Elm Court is therefore not a public road. In rejecting this
argument, the trial court correctly observed that MCL 560.255b(1) provides that 10 years after a

                                               -8-
plat is first recorded, “land dedicated to the use of the public . . . shall be presumed to have been
accepted on behalf of the public by the municipality within whose boundaries the land lies.”
MCL 560.255b(1). The trial court also observed that no showing had been made on the record
that the dedication of the plat had not been accepted. In other words, while MCL 560.255b(2)
provides a statutory framework for rebutting the presumption of acceptance by a municipality, on
this record, the nongovernmental defendants made no evidentiary showing to rebut the
presumption that the plat was validly accepted. See Higgins Lake, 255 Mich App at 116.
Accordingly, the nongovernmental defendants’ argument that the plat in this case was not validly
accepted is unpersuasive.

        The nongovernmental defendants also contend that the trial court did not properly
consider the historical use of Elm Court in rendering its decision. In support of this argument,
the nongovernmental defendants point to the June 6, 2014 letter of Lynn Pollack, presumably a
resident who lives in close proximity to Elm Court, that Elm Court was intended to be a private,
dedicated easement, rather than a public road end. They also point to multiple attachments to
their February 19, 2014 third-party complaint, arguing that they too demonstrate that Elm
Court’s usage was intended to be exclusive and private. However, the record reflects that the
trial court did indeed consider the evidence submitted by the parties, still ultimately concluding
that Elm Court is a public road end. Further, Higgins Lake makes it clear that the intent of the
plat grantors, as evidenced by the language of the plat itself, will govern in determining the scope
of the plat. See Higgins Lake, 255 Mich App at 88, 96, 103.4 Specifically, the Higgins Lake
Court recognized that “in the absence of evidence that the historical uses of the road ends were
contemporaneous with the [plat] dedication, the road-end activity occurring after the dedication
are not helpful in determining the dedicators’ intent.” Id. at 103. Here, the nongovernmental
defendants did not submit evidence creating a factual issue regarding the intent of the dedicators.
Instead, the intent of the dedicators is plain from the language of the plat. Therefore, the intent
of the plat grantors, as evidenced by the language of the plat, determines the scope of the plat in
this case.

                                III. PRESCRIPTIVE EASEMENT

        The nongovernmental defendants argue that the court erred in (1) granting plaintiff’s
motion for summary disposition of the nongovernmental defendants’ affirmative defense of
prescriptive easement and (2) granting summary disposition against the nongovernmental
defendants with regard to their claim of a prescriptive easement raised in the third-party
complaint. We disagree.




4
  The nongovernmental defendants also contend that the trial court did not consider the language
of the plat. However the trial court duly noted that it considered all of the exhibits submitted by
the parties in this case, and a copy of the plat was provided to the trial court as part of the
pleadings that were the impetus for the trial court’s ruling on whether Elm Court was a public
road end.


                                                -9-
        The trial court decided this issue in the context of plaintiff’s motion seeking summary
disposition of the nongovernmental defendants’ affirmative defense of prescriptive easement
pursuant to MCR 2.116(C)(8) and (10). Defendant Cambridge Township made an oral motion
seeking summary disposition, pursuant to MCR 2.116(I), at the hearing on plaintiff’s motion
after plaintiff’s motion was granted, specifically asserting that factual issues did not exist and the
same legal issue warranted dismissal of the nongovernmental defendants’ claims against third-
party defendants. A trial court’s decision granting summary disposition is reviewed de novo.
Maiden, 461 Mich at 118. Where the trial court did not specify under what subrule summary
disposition was granted, and where it looked beyond the pleadings in rendering its decision, “this
Court will consider the motion granted pursuant to MCR 2.116(C)(10).” DeHart v Joe
Lunghamer Chevrolet, Inc, 239 Mich App 181, 184; 607 NW2d 417 (1999). As set forth above:

               A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
       complaint. In evaluating a motion for summary disposition brought under this
       subsection, a trial court considers affidavits, pleadings, depositions, admissions,
       and other evidence submitted by the parties in the light most favorable to the party
       opposing the motion. Where the proffered evidence fails to establish a genuine
       issue regarding any material fact, the moving party is entitled to judgment as a
       matter of law. [Maiden, 461 Mich at 120 (citations omitted).]

        On appeal, a trial court’s decision granting summary disposition pursuant to MCR
2.116(I)(1) is reviewed de novo. Sobiecki v Dep’t of Corrections, 271 Mich App 139, 141; 721
NW2d 229 (2006). MCR 2.116(I)(1) provides, “If the pleadings show that a party is entitled to
judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine
issue of material fact, the court shall render judgment without delay.” “Under MCR 2.116(I)(1),
the trial court is affirmatively required to ‘render judgment without delay’ when ‘the pleadings
show that a party is entitled to judgment as a matter of law.’ ” Sobiecki, 271 Mich App at 141
(citation omitted). A trial court is permitted to grant summary disposition sua sponte pursuant to
MCR 2.116(I)(1), as long as one of the two conditions in the rule is met. Al-Maliki v LaGrant,
286 Mich App 483, 485; 781 NW2d 853 (2009).

        An easement allows one to use the land of another for a specific purpose. Heydon v
MediaOne, 275 Mich App 267, 270; 739 NW2d 373 (2007). “An easement by prescription
results from the use of the property of another that is open, notorious, adverse, and continuous
for a period of 15 years.” Id. at 270-271. In Higgins Lake, this Court, citing Kempf v Ellixson,
69 Mich App 339; 244 NW 476 (1976), recognized that a public easement can be acquired by
prescription under certain circumstances. Higgins Lake, 255 Mich App at 119. Observing that
“mere use of property is insufficient to establish a public easement by prescription[,]” this Court
cited with approval the following language from Kempf:

               We think it safe to say that unless there has been some action by
       representatives of the public, i.e. the government, a “public” easement cannot be
       established by prescription. Recreational use of an area by various individuals
       over a period of years is insufficient to establish a public easement.

                                               * * *


                                                -10-
               We believe that establishment of public recreational rights by prescription
       requires at a minimum governmental action to facilitate and control recreational
       use. It does not appear that the public has established by prescription any
       recreation easement over the area in question. [Id. at 119-120, quoting Kempf, 69
       Mich App at 343-344 (quotation marks omitted).]

Observing that the defendants in Higgins Lake sought a prescriptive easement over public road
ends “solely on the recreational use of the road ends by various individuals over a period of
years,” the Higgins Lake Court reiterated that “mere use of the [subject] property is insufficient
to establish[] a public easement by prescription.” Higgins Lake, 255 Mich App at 120.

       During the July 28, 2014 hearing, the attorney for the nongovernmental defendants
acknowledged that there was no governmental action. Instead, defense counsel argued that no
governmental entity ever accepted the road. The parties then presented arguments regarding
whether the public road end was ever accepted by a government entity. During the August 8,
2014 hearing, the trial court observed that the nongovernmental defendants sought to advance a
claim of a prescriptive easement in their amended pleadings. After noting the elements of a
claim of prescriptive easement, the trial court recognized that a claim of a public prescriptive
easement “requires, at a minimum, a governmental action to facilitate and control recreational
use.” Importantly, the trial court made the following observation:

               The Defendant’s [sic] and Third Party Plaintiff’s [sic] in this case have
       admitted that there has been no governmental action which is required to establish
       a public easement. In fact, none has been alleged as pointed out by Mr. Colthurst
       in his motion, and, it was admitted on the record by counsel [for defendants/third-
       party plaintiffs]. There is no issue, legal or factual, on this matter, and, Plaintiff is
       therefore entitled to Summary Disposition on the Prescriptive Easement Claim.
       [Emphasis added.]

Notably, counsel for the nongovernmental defendants did not object to the trial court’s
conclusion that he admitted on the record the lack of governmental action to support a claim of a
public prescriptive easement. Counsel for the nongovernmental defendants also did not assert
the existence of a private prescriptive easement during the motion hearing. He stated that the
court’s decision “has decided all of the pending issues before this court.” Later in the
proceedings, the trial court, in ruling on Cambridge Township’s motion for summary disposition
of the nongovernmental defendants’ claim of a prescriptive easement, again made the following
observations:

       I will rule at this time that all the prescriptive easement claims, because we don’t
       have any kind of governmental action which is a necessary element, which has
       been admitted by Mr. Brooks on behalf of his clients, I will rule on all those
       claims at this time. Any claim diverted from that prescriptive easement claim
       then will be dismissed as well as the claim that you had brought against Mr.
       Colthurst.

When the trial court inquired of the nongovernmental defense counsel’s position, counsel
responded, in pertinent part, “I have no objection to the court considering that motion, and,

                                                 -11-
ruling on it pursuant to the law you’ve already cited.” Accordingly, the trial court properly
concluded that a public prescriptive easement did not exist over Elm Court because all parties
acknowledged that there was no governmental action. See Higgins Lake, 255 Mich App at 119-
120.

        The nongovernmental defendants argue on appeal that the trial court applied the incorrect
standard of law to their easement claim as they were asserting a private easement, not a public
easement. A review of the lower court record reflects that the third-party complaint initially
stated that the nongovernmental defendants asserted a claim for a “prescriptive easement.” In
support of their claim, the nongovernmental defendants stated that they had established a
prescriptive easement by the construction and maintenance of a seawall for exclusive use, by
erecting a no trespassing sign, by erecting a dock and mooring boats at the dock or on lifts
adjacent to the docks, by establishing rules for the use of Elm Court, and by charging fees for
maintenance of the area. After plaintiff filed his motion to dismiss the claim of prescriptive
easement, the nongovernmental defendants filed an amended third-party complaint, specifically
stating that they were asserting a “private recreational easement” for their exclusive benefit.

        It is noteworthy that the nongovernmental defendants did not argue in the trial court that
their claim was based on a private prescriptive easement theory, even after the trial court stated
that they had essentially waived the elements of their claim of a public prescriptive easement.
The trial court did not address and decide the issue of a private prescriptive easement, and
defense counsel did not raise the issue during the relevant motion hearings. See Henderson, 307
Mich App at 7-8. In fact, defense counsel stated that the court had “decided all of the pending
issues before this court,” and stated that he had “no objection to the court considering”
Cambridge Township’s motion and “ruling on it pursuant to the law you’ve already cited.”
Under these circumstances, we decline to address the question of the existence of a private
prescriptive easement because the facts necessary to the resolution of this issue were not
presented in the trial court. See id. at 8. Accordingly, the trial court did not err in granting the
motion for summary disposition of the nongovernmental defendants’ affirmative defense of
prescriptive easement and in granting the motion for summary disposition of the prescriptive
easement claim raised in the third-party complaint.

                         IV. RETROACTIVITY OF MCL 324.20111b

        The nongovernmental defendants argue that the Act retroactively deprived them of a
vested right. We disagree.

        For an issue to be properly preserved, it must be raised before, and considered and
decided by, the trial court. Henderson, 307 Mich App at 7-8. The nongovernmental defendants
did not raise this issue in the trial court. Accordingly it was not properly preserved for this
Court’s review. The issue whether a statutory amendment operates retroactively is a question of
law that this Court reviews de novo. Lafontaine Saline, Inc v Chrysler Group, LLC, 496 Mich
26, 34; 852 NW2d 78 (2014). However, where the nongovernmental defendants did not properly
preserve this issue in the trial court, we review the matter for plain error affecting the
nongovernmental defendants’ substantial rights. Rental Props Owners Ass’n of Kent Co v Kent
Co Treasurer, 308 Mich App 498, 532; 866 NW2d 817 (2014).


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       In general terms, an amended statute will operate prospectively “ ‘unless the Legislature
has expressly or impliedly indicated its intention to give it retrospective effect.’ ” Aztec Air Serv,
Inc v Dep’t of Treasury, 253 Mich App 227, 233; 654 NW2d 925 (2002) (citation omitted). In
LaFontaine Saline, the Michigan Supreme Court set forth four guiding principles to consider in
determining whether a law has retroactive effect.

               In determining whether a law has retroactive effect, we keep four
       principles in mind. First, we consider whether there is specific language
       providing for retroactive application. Second, in some situations, a statute is not
       regarded as operating retroactively merely because it relates to an antecedent
       event. Third, in determining retroactivity, we must keep in mind that retroactive
       laws impair vested rights acquired under existing laws or create new obligations
       or duties with respect to transactions or considerations already past. Finally, a
       remedial or procedural act not affecting vested rights may be given retroactive
       effect where the injury or claim is antecedent to the enactment of the statute.
       [LaFontaine Saline, 496 Mich at 38-39 (citations omitted).]

In Gillette Commercial Operations North America & Subsidiaries v Dep’t of Treasury, 312 Mich
App 394, 418; ___ NW2d ___ (2015), this Court recognized that concerns regarding the
retroactive application of a statute stem from constitutional due-process requirements “ ‘that
prevent retrospective laws from divesting rights to property or vested rights, or the impairment of
contracts.’ ” (Citation omitted.)

               A vested right has been defined as an interest that the government is
       compelled to recognize and protect of which the holder could not be deprived
       without injustice. Nonetheless, when determining whether a right is vested,
       policy considerations, rather than inflexible definitions must control, and we must
       consider whether the holder possesses what amounts to be a title interest in the
       right asserted. [Id. (citation and quotation marks omitted).]

This Court recognized that “[a] vested right is a legal or equitable title to the present or future
enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption
from a demand by another.” Id. at 419. To amount to a vested right, one must have “more than
a mere expectation” of the right on the basis of “an anticipated continuance of the present laws.”
Id.

        In their brief on appeal, the nongovernmental defendants do not present a meaningful,
coherent argument with regard to how they allege the trial court improperly retroactively applied
the Act under the facts of this case. In any event, where the Act applies to the nongovernmental
defendants’ actions on Elm Court and Wamplers Lake that predated the enactment of the
relevant amendments, the instant case presents a scenario where, “simply because a statute
relates to an antecedent event, it is not necessarily regarded as operating retrospectively[.]”
Tobin v Providence Hosp, 244 Mich App 626, 661; 624 NW2d 548 (2001). Further, the
nongovernmental defendants do not present a developed, specific argument regarding how their
rights to use Elm Court and the adjoining water of Wamplers Lake were “vested rights” that are
somehow impaired by the retroactive application of the Act. See LaFontaine Saline, 496 Mich
at 38-39; Gillette Commercial Operations, 312 Mich App at 418-419. Indeed, the state of the

                                                -13-
law before the relevant amendments to the act, pursuant to Higgins Lake and predecessor cases
relied on in that case, confirms that while the nongovernmental defendants had rights to access
the surface of the water in a reasonable manner where Elm Court terminated at the water’s edge,
any rights to erect a private dock or boat hoists were limited, and the scope of the dedication of
the plat controlled. See Higgins Lake, 255 Mich App at 99. Accordingly, under the
circumstances of this case, the nongovernmental defendants have not made a persuasive showing
that the Act was applied retroactively, or that their rights to use Elm Court and the adjoining
water were vested rights.

       Affirmed.


                                                            /s/ Kathleen Jansen
                                                            /s/ Peter D. O’Connell
                                                            /s/ Michael J. Riordan




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