                      STATE OF MICHIGAN

                         COURT OF APPEALS



DAVID CAMPBELL, LYNNE CAMPBELL,           UNPUBLISHED
RICHARD J. MANZARDO, and PAULA K.         January 15, 2015
MANZARDO,

           Plaintiffs-Appellants,

v                                         No. 318606
                                          Genesee Circuit Court
FENTON TOWNSHIP, DEPARTMENT OF            LC No. 11-095255-CH
ENERGY, LABOR, AND ECONOMIC
GROWTH, GENESEE COUNTY ROAD
COMMISSION, DEPARTMENT OF
TREASURY, WILLIAM A. RICHARDSON, II,
DAVID G. POLIDAN, GAYLE POLIDAN,
KATHERINE M. VISSER, JERI A.
HACKENBERRY, RONALD BIRCHMEIER,
PHILIP LEWIS, OLIVIA PIERCE, and the
CAROLE-ARTHUR WYMAN REVOCABLE
TRUST,

           Defendant-Appellees,

and

GENESEE COUNTY DRAIN COMMISSION,
JSJJ, L.L.C., BAC HOME LOANS SERVICING,
ROBERT J. SWATOSH, MICHELLE
SWATOSH, AMY SOWERS, VICTOR
SHEPHERD, DAVID OVERWAY, JR.,
MICHELLE OVERWAY, DONALD
KIRKWOOD, ROGER STUDLEY, KATIE
LEONI, JANICE MACKSOOD LIVING TRUST,
SHARON DAVIS TRUST, CRAIG ANDERSON,
THOMAS MACKSOOD, ARICK GOETZ,
CRAIG ANDERSON, DAVID W. POLIDAN, and
ALPHONSE SCHMIDT,

           Defendants.



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Before: FORT HOOD, P.J., and HOEKSTRA and O’CONNELL, JJ.

PER CURIAM.

        Plaintiffs, David Campbell, Lynne Campbell, Richard J. Manzardo, and Paula K.
Manzardo, appeal as of right an opinion and order denying their request to vacate a park located
between plaintiffs’ properties. On appeal, plaintiffs argue that the trial court erred in denying
their action to vacate or modify the park and that the trial court erred when it determined the
allowable uses of the park included snowmobiling. We affirm.

        This dispute centers around a 20-foot strip of land, referred to as a “park,” located
between David and Lynn Campbell’s real property and Richard and Paula Manzardo’s real
property in Fenton Township, Michigan. The Campbell’s own lot 66 in the Shore Acres
Homesites subdivision, and the Monzardos own lots 64 and 65. Between lots 65 and 66 is the
park, which was dedicated for the use of all present or future owners of land in Shore Acres
Homesites. All three lots are located on Lake Fenton. Thus, the park was intended to provide
land owners in Shore Acres Homesites access to the lake. Plaintiffs filed a complaint to vacate
the park based on water issues and flooding, as well as misuse of the park. Alternatively,
plaintiffs asked the trial court to define the scope of park use and, in particular, find that
subdivision residents could not use snowmobiles in the park. After a bench trial, the trial court
denied plaintiffs’ request to vacate the park. The court further ordered that pedestrian and
snowmobile traffic would be permissible in the park, and granted specific relief designed to
remedy plaintiffs’ concerns about the park. Plaintiffs appeal.

       Plaintiffs first argue that the trial court erred in refusing to vacate the park located
between their properties. We disagree based on defendants’ correct assertion that plaintiffs did
not have a legal or record basis to request that the trial court vacate the park pursuant to Beach v
Twp of Lima, 489 Mich 99, 105-106; 802 NW2d 1 (2011).

       We review a trial court’s findings of fact in a bench trial for clear error and review de
novo its conclusions of law. Chelsea Investment Group LLC v City of Chelsea, 288 Mich App
239, 250; 792 NW2d 781 (2010). “A finding is clearly erroneous if there is no evidentiary
support for it or if this Court is left with a definite and firm conviction that a mistake has been
made.” Id. at 251.

        Plaintiffs filed a complaint to vacate the disputed portion of the Shore Acres Homesites
plat1 pursuant to the Land Division Act (LDA), MCL 560.221 et seq. MCL 560.221 provides
that the “circuit court may, as provided in sections 222 to 229 vacate, correct, or revise all or a
part of a recorded plat.” “[T]o vacate, correct, or revise a recorded plat or any part of a recorded
plat, a complaint shall be filed in the circuit court by the owner of a lot in the subdivision, a
person of record claiming under the owner, or the governing body of the municipality in which


1
    Plat is defined as “a map or chart of a subdivision of land.” MCL 560.102(a).




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the subdivision covered by the plat is located.” MCL 560.222. The complaint must set forth “(a)
The part or parts, if any, sought to be vacated and any other correction or revision of the plat
sought by the plaintiff,” and “(b) The plaintiff’s reasons for seeking the vacation, correction, or
revision.” MCL 560.223. Once plaintiff has asserted reasons for vacation of the plat, those
objecting to the vacation have the burden of showing a reasonable objection to the request. In re
Petition of Gondek, 69 Mich App 73, 74-77; 244 NW2d 361 (1976).

        Thus, the vacation, correction, or revision of plats is controlled by the LDA. Martin v
Beldean, 469 Mich 541, 542-543; 677 NW2d 312 (2004). “[T]he exclusive means available
when seeking to vacate, correct, or revise a dedication in a recorded plat is a lawsuit filed
pursuant to MCL 560.221 through 560.229.” Id. However, “The LDA was never intended to
enable a court to establish an otherwise nonexistent property right. Rather, the act allows a court
to alter a plat to reflect property rights already in existence.” Tomecek v Bavas, 482 Mich 484,
496; 759 NW2d 178 (2008); see also Beach, 489 Mich at 115.

        In Beach, the dispute centered around platted roads which had never been developed.
Beach, 489 Mich at 103-104. The Court held that an action pursuant to the LDA would not have
been proper because the plaintiffs, lot owners in the plat, did not have a substantive property
right. Id. at 110-111.

       Without possessing record title to the property, no one, including [the] plaintiffs,
       had a basis on which to request an alteration of the plat under the LDA.
       Therefore, plaintiffs were not required to proceed under MCL 560.221, which
       allows a circuit court to vacate, correct, or revise a plat but does not enable a court
       to establish an otherwise nonexistent property right. [Id. at 102 (citations,
       footnotes, and internal quotation marks omitted).]

Defendants rely on Beach to support their assertion that plaintiffs, who do not own record title to
the park, had no basis to request vacation of the plat under the LDA. We agree with defendants,
and hold, that pursuant to Beach, because plaintiffs do not have an existing property right in the
park by way of record title they are unable to request that the trial court vacate the property.

        Plaintiffs assert that the dedication of the park to lot owners in the subdivision, including
plaintiffs, distinguishes the current case from Beach. It is true that in Beach, there was no private
dedication, as there is here. Plaintiffs further rely on Martin and Tomecek to support their
position, claiming that the current case is factually distinguishable from Beach. However, we
disagree that Martin and Tomecek present similar factual circumstances to the current case. In
Martin, the plaintiffs owned part of the lot that was in dispute. Martin, 469 Mich at 544-545. As
such, the holding in Martin was consistent with Beach because the plaintiffs owned record title
to part of the disputed property. In Tomecek, the case centered on the scope of an existing
easement. Tomecek, 482 Mich at 487-494. In regard to the LDA, the Court only held that
giving effect to an easement’s purpose did not create new substantive property rights; the LDA
was used in Tomecek as a tool to validate property rights which already existed. Id. at 495-496.
We do not agree that Tomecek supports plaintiffs’ position that they can seek vacation of the
park, and, in fact, Tomecek seems to stand for the opposite proposition— that the LDA cannot be
used to establish new substantive property rights. Pursuant to Tomecek, while plaintiffs could


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use the LDA to define the scope of the dedication, discussed infra, they cannot create new
property rights.

        Moreover, even assuming plaintiffs were able to request that the property be vacated, we
do not agree that the trial court clearly erred in finding that defendants showed a reasonable
objection to the vacation. While plaintiffs are correct that there was no testimony regarding the
impact on the value of the back-lot homes if the park were vacated, this Court has held that “a
private dedication is effective upon the sale of a lot because it is reasonably assumed that the
value of that lot, as enhanced by the dedication, is reflected in the sale price. That is, purchasers
relied upon the dedications that made the property more desirable.” Little v Hirschman, 469
Mich 553, 559; 677 NW2d 319 (2004). In further support, Jeri Hackenberry, lot owner in the
subdivision, testified that the sole reason she purchased her home was the close access to the
park, showing that the existence of the park is influential to buyers. For these reasons, the trial
court did not clearly err in finding that “it seems reasonable and probable that the value of
plaintiffs’ property is less because of the location of the park and that the value to those non lake
front property owners is increased because of their access to the lake through the park,” and
refusing to vacate the park.

       Plaintiffs next argue that the trial court erred when it determined that snowmobile use
was permitted in the park. We disagree.

        “The extent of a party’s right under an easement is a question of fact.” Dobie v
Morrison, 227 Mich App 536, 541; 575 NW2d 817 (1998). Accordingly, we review a trial
court’s determination of the parties’ respective rights under an easement for clear error. Id. “A
finding is clearly erroneous if there is no evidentiary support for it or if this Court is left with a
definite and firm conviction that a mistake has been made.” Chelsea Investment Group, 288
Mich App at 251.

        The intent of the grantor controls the scope of a private dedication. Higgins Lake Prop
Owners Ass’n v Gerrish Twp, 255 Mich App 83, 88; 662 NW2d 387 (2003). When interpreting
the scope of a private dedication creating an easement, courts must begin by examining the text
of the dedication itself. Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003). If the language
of the dedication is plain and unambiguous the court must enforce it as written and no further
inquiry is permitted. Id. However, “[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.”
Id. Moreover, if the trial court concludes that the easement grants defendants a specific use of an
easement, the court must determine (1) whether the use is necessary for the defendants’ effective
use of the easement and (2) whether the use unreasonably interferes with plaintiffs’ use and
enjoyment of their property. Id. at 701; see also Dobie, 227 Mich App at 541-542.

        In this case, the plat of Shore Acres Homesites dedicated the park to the use of all present
and future land owners in the subdivision. However, the specific use of the park was not
defined. Therefore, the dedication was ambiguous and extrinsic evidence was permissible to
determine the scope of the easement. Little, 468 Mich at 700. Here, both parties agree that
under standard dictionary terms, a park is generally defined as an area of land used for
recreation. Based on that definition, and the lack of other evidence regarding the dedicator’s
intent, the trial court did not clearly err in determining that the use of snowmobiles reasonably

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falls within the scope of recreational activities, particularly in light of testimony that
snowmobiles have been used in the park for many years.

        Plaintiffs contend that historical snowmobile use in the park is not relevant to
determination of the scope of the dedication. Plaintiffs rely on Higgins, where this Court
considered the scope of a public dedication for use of road ends, and refused to consider the
historical use of the public dedication to determine the scope of the dedication. Higgins, 255
Mich App at 88, 103. The Court held that “in the absence of evidence that the historical uses of
the road ends were contemporaneous with the dedication, the road-end activity
occurring after the dedication are not helpful in determining the dedicators’ intent.” Id. at 103
(emphasis in original).

        In contrast, in Dobie, this Court considered a lakefront park dedicated to subdivision
residents, which, according to the Court, was necessarily included in the plaintiffs’ home
owners’ lot. Dobie, 227 Mich App at 537. The Court first considered whether the dedication
granted subdivision residents fee title or an easement in the park by considering the subdivision
plattors’ intent. Id. at 538-540. In doing so, the Court explained that courts should consider “the
language used in connection with the facts and circumstances existing at the time of the grant.”
Id. at 540. After determining that the park was an easement, the Court went on to hold that the
trial court did not err in concluding that the defendant plat owners could continue to use the park
as they had done “traditionally and historically” for picnicking, swimming, fishing, sunbathing,
constructing a dock, and seasonal mooring, because the trial court properly found that such uses
were within the scope of the easement and did not unreasonably interfere with the plaintiffs’ use
and enjoyment of their property. Id. at 541-542.

        Dobie is more comparable to the current case than to Higgins. Higgins can be
distinguished from the current case and from Dobie because it involved a public dedication as
opposed to a private dedication. Higgins, 255 Mich App at 88; Dobie, 227 Mich App at 537.
Here, as in Dobie, the parties did not present evidence regarding the use of the park at the time of
dedication in 1924. Rather, several witnesses testified that since the 1970’s, at least, the park had
been used for snowmobiles. Given this testimony, and pursuant to Dobie, we are not left with a
definite and firm conviction that the trial court erred in determining that snowmobile use fell
within the scope of the dedication. See Dobie, 227 Mich App at 541-542.

        Further, the testimony establishes that such a use is necessary to defendants’ effective use
of the park in the winter months, as the park is used for little else during that time. Little, 468
Mich at 701. We also do not agree that the use of snowmobiles unreasonably interferes with
plaintiffs’ use and enjoyment of their property. Id. The trial court ordered that plaintiffs could
limit snowmobile use to daylight hours, which reasonably addresses one of plaintiffs’ chief
complaints regarding snowmobile use. Plaintiffs other main concern regarding snowmobile use
was the proximity of the snowmobiles to their homes, and the fact that the snowmobiles may at
times cross over the property lines. This issue could be solved by a fence, as suggested by the
trial court. Therefore, we do not agree that use of snowmobiles in a reasonable manner interferes
with plaintiffs’ use and enjoyment of their property.




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Affirmed. Defendants, the prevailing parties, may tax costs pursuant to MCR 7.219.

                                                  /s/ Karen M. Fort Hood
                                                  /s/ Joel P. Hoekstra
                                                  /s/ Peter D. O'Connell




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