                     STATE OF MICHIGAN

                       COURT OF APPEALS



SIMS TOWNSHIP,                                    UNPUBLISHED
                                                  February 17, 2015
           Plaintiff-Counter Defendant-
           Appellee,

v                                                 No. 318041
                                                  Arenac Circuit Court
ARENAC COUNTY DRAIN COMMISSIONER,                 LC No. 01-007657-CH

           Defendant-Cross Defendant,

and

FRANCIS N. MORAN TRUST and JOHN F.
MORAN

           Defendants-Counter Plaintiffs-
           Cross Plaintiffs,

and

WALLACE & ORR BACKLOTTERS
ASSOCIATION,

           Defendant-Cross Plaintiff-
           Appellant,

and

ARENAC COUNTY ROAD COMMISSION,
WALLACE & ORR LAKEFRONT PROPERTY
OWNERS ASSN, DIRECTOR OF
TRANSPORTATION DEPARTMENT,
DIRECTOR OF NATURAL RESOURCES
DEPARTMENT, DIRECTOR OF LICENSING &
REGULATION DEPARTMENT, and STATE OF
MICHIGAN,

           Defendants-Appellees,


                                            -1-
and

LAKEFRONT PROPERTY OWNERS ASSN,
CONSUMERS ENERGY, KAYE GREGORY, et
al,1

                 Defendants.


SIMS TOWNSHIP,

                 Plaintiff-Counter Defendant-
                 Appellee,

v                                                                      No. 318096
                                                                       Arenac Circuit Court
ARENAC COUNTY DRAIN COMMISSIONER,                                      LC No. 01-007657-CH

                 Defendant-Cross Defendant,

and

FRANCIS N. MORAN TRUST and JOHN F.
MORAN

                 Defendants-Counter Plaintiffs-
                 Cross Plaintiffs-Appellants,

and

WALLACE & ORR BACKLOTTERS
ASSOCIATION,

                 Defendant-Cross Plaintiff-Appellee,

and

ARENAC COUNTY ROAD COMMISSION,

                 Defendant-Appellee,

and


1
    There are 655 parties, of whom the vast majority are not participating in the instant appeal.


                                                  -2-
WALLACE & ORR LAKEFRONT PROPERTY
OWNERS ASSN,

                 Defendant,

and

DIRECTOR OF TRANSPORTATION
DEPARTMENT, DIRECTOR OF NATURAL
RESOURCES DEPARTMENT, DIRECTOR OF
LICENSING & REGULATION DEPARTMENT,
and STATE OF MICHIGAN,

                 Defendants-Appellees,

and

LAKEFRONT PROPERTY OWNERS ASSN,

                 Defendant,

and

CONSUMERS ENERGY,

                 Defendant-Appellee,

and

KAYE GREGORY, et al,2

                 Defendants.


Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.

PER CURIAM.

       This consolidated appeal concerns real property boundaries and riparian rights within a
lakefront subdivision that was platted in 1904 and has, at least to some extent, been used in ways
inconsistent with the plat. This case commenced in 2001, when Sims Township named all of the


2
    There are 655 parties, of whom the vast majority are not participating in the instant appeal.


                                                  -3-
property owners within the subdivision as defendants, seeking to settle all of the various disputes
between the owners. After many years and a lengthy trial, the trial court eventually held,
relevant to the instant appeal, that all property owners in the subdivision had a right to use and
enjoy the beach “for usual and ordinary beach activities,” but the front lot owners adjacent to the
beach had exclusive riparian rights; the trial court also held that certain platted roads had never
been formally accepted and had been encroached upon in various ways by property owners, but
that the platted roads should only be vacated to the extent of permanent structures thereon. The
back lot owners appeal the first ruling, arguing that the beach should either be public or they
should have coextensive riparian rights with the front lot owners. One of the property owners
appeals the trial court’s refusal to vacate certain of the platted roads in their entirety. The parties
initially appealed certain postjudgment issues but averred at oral argument that those issues were
resolved, so we do not address them. We affirm the trial court regarding the beach, reverse
regarding one of the roads, and remand.

        Factual findings made by a trial court are reviewed for clear error, reversible only if
totally unsupported or if this Court is definitely and firmly convinced that they are mistaken, but
with great deference given to the trial court’s superior ability to evaluate the credibility of the
witnesses and parties who appeared before it. Augustine v Allstate Ins Co, 292 Mich App 408,
424-425; 807 NW2d 77 (2011). Statutory interpretation and other questions of law are reviewed
de novo. 2000 Baum Family Trust v Babel, 488 Mich 136, 143; 793 NW2d 633 (2010).

        Ordinarily, land cannot be riparian unless it actually touches the water. Hilt v Weber, 252
Mich 198, 218; 233 NW 159 (1930). Any land owned in fee between the property in question
and the water will destroy whatever riparian rights that land might have in favor of the
interposing fee owner. 2000 Baum Family Trust, 488 Mich at 167. However, a common-law
dedication of land to public use passes only an easement, not fee ownership. Nash v Duncan
Park Comm, 304 Mich App 599, 628-630; 848 NW2d 435 (2014). A statutory dedication of
land to public use passes an interest nominally described as being in fee, but it is “a fee in name
only” and passes no more “rights in dedicated lands tha[n] the government had traditionally
enjoyed at common law.” 2000 Baum Family Trust, 488 Mich at 164-166 (emphasis in original).
Consequently, any kind of public dedication will not sever the front lotters’ riparian rights,
unless, critically, it is apparent that the plattor intended to pass fee ownership, perhaps as a
private conveyance in fee to all subdivision owners. See Thies v Howland, 424 Mich 282, 293-
294; 380 NW2d 463 (1985).

        A statutory dedication requires two elements: “a recorded plat designating the areas for
public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use”
and “acceptance by the proper public authority.” 2000 Baum Family Trust, 488 Mich at 149
(quotations omitted). A valid common-law dedication of land for public use requires the
property owner to have intended to offer the land for public use and use by the public generally.
Id. at 147. Both the intent of the property owner and the use by the public are determined by
considering all the relevant facts and circumstances. Id. at 148, see also Conkling v Vill of
Mackinaw City, 120 Mich 67, 73-78; 79 NW 6 (1899). Parks, unlike roads, do not necessarily
require overt maintenance or improvement, so public use thereof can be sufficient to effectuate
acceptance of a park dedicated to the public. Village of Lakewod Club v Rozek, 51 Mich App
602, 604; 215 NW 780 (1974). Conversely, public use made of vacant private property that was
never dedicated to the public in the first place will not, in the absence of some manner of

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estoppel under extraordinary circumstances, convert such private property into a public park.
Baker v Johnston, 21 Mich 319, 349 (1870); see also Lee v Lake, 14 Mich 12 (1865).
Ultimately, the intent of the plattor is critical.

        It is undisputed that the plat does not explicitly dedicate the beach to the use of the
public, or in fact address the plattor’s intent for the beach in any way at all. It simply shows that
a beach exists and gives it the name “Promenade Beach.” In contrast, the plat does explicitly
specify “that the streets and alleys as shown on said plat are hereby dedicated to the use of the
Public.” The back lotters correctly state that the principle of ejusdem generis does not
necessarily compel the conclusion that the beach was therefore not dedicated to the public
merely because only the streets and alleys were explicitly mentioned. Conkling, 120 Mich at 69.
However, the evidence must still show that the plattor had such an intention; e.g., in the form of
an unambiguous attempted dedication that failed to comply with some legal requirements or an
actual expression from the original property owner. Id. at 69-78. No such expressions of an
intent to dedicate the beach to the public appear in the record here.

        The back lotters contend that the “beach” on the plat should be construed as if the word
was synonymous with a “park,” on the theory that both labels demonstrate a clear intent by the
plattor to convey the land for public use. A beach certainly can be treated as the equivalent of,
or also being, a park. However, a “park” is explicitly defined as “a public area of land, usually in
a natural state, having facilities for recreation,” whereas a “beach” is defined as “an expanse of
sand or pebbles along a shore.” Random House Webster’s College Dictionary (2001 ed); see
also MCL 123.1133(h); MCL 141.321(a) (defining “parks”); cf MCL 333.12541(5)(a) (defining
“bathing beach”). A “park” therefore by definition necessarily implies a public use, whereas a
“beach” merely describes a geographic area. We decline to imply more than is stated. We also
decline to imbue the name “Promenade Beach” with any particular significance.

        We simply do not find any clear error in the trial court’s finding that the beach was not a
public park and conveyed no riparian rights away from the front lot owners. Because the front
lot owners have not cross-appealed the trial court’s finding that the beach is a private beach for
use by all property owners in the subdivision, we do not disturb that finding; furthermore, we
note that such a finding is a reasonable implication from the beach’s inclusion in the plat as
something seemingly distinct from either the streets or the lots. We note that the trial court
explicitly held that nothing in its holding was intended to affect the public trust in the
bottomlands. The trial court’s holding that only the front lot owners have riparian rights is
affirmed.

        The back lotters also argue that the trial court should not have vacated portions of the
beach landward of the seawalls erected thereon, arguing that as a consequence, they would be
unable to enjoy the beach during times when the water is high. We disagree. The evidence
showed that the front lot owners had constructed not only seawalls but also fences, some dating
back more than half a century, and had used those areas exclusively. Objections to vacating land
based on scenic beauty or lake access when principle routes of access would remain undisturbed
are not reasonable. Abbey Homes of Michigan, Inc v Wilcox, 89 Mich App 574, 582-583; 280
NW2d 868 (1979). The trial court appears to have properly taken into account the entire
situation as a whole. See Westveer v Ainsworth, 279 Mich 580, 584-85; 273 NW 275 (1937).


                                                -5-
We find no clear error in the trial court’s holding, which we deem to be a reasonable and
balanced compromise between the competing interests.

         Regarding the platted streets, we first address whether the individual front lot owner, the
Morans, who chose to appeal the issue have standing to contest any roads other than the platted
19th and 20th streets. We find that the Morans do not. First, we must presume that the remaining
backlotter parties who chose not to appeal are, for whatever reason, sufficiently satisfied with the
result below. Appeal to this Court is by right for any aggrieved party, so the other backlotters’
choice not to appeal may well mean they do not believe they are truly aggrieved. Indeed, the
trial court effectuated a seemingly reasonable compromise by vacating the platted streets to the
extent of permanent structures intruding thereon. That ruling has also not been cross-appealed,
so all involved parties other than the Morans may have believed the result was good enough for
their purposes. Second, we do not perceive how the Morans would benefit in any way from
reversing the trial court’s rulings regarding any streets that do not directly affect the Morans’
own property. Only platted 19th and 20th streets do so. We therefore conclude that the Morans
have standing on appeal only to challenge the trial court’s holdings regarding platted 19th and
20th streets, so we address only those two streets.

        We note first that the trial took place prior to our Supreme Court’s decisions in Tomecek
v Bavas, 482 Mich 484; 759 NW2d 178 (2008), and Beach v Twp of Lima, 489 Mich 99; 802
NW2d 1 (2011). In relevant part, those cases held that an action to vacate or revise a plat under
the Land Division Act (LDA), MCL 560.101 et seq., cannot itself vindicate and substantive
property rights, but rather can only effectuate a change to a plat to reflect a conflicting property
right that has already been legally recognized. Beach, 489 Mich at 102. The parties, by
agreement, tried the instant matter solely under the LDA, rather than, for example, explicitly
trying a claim of adverse possession. Beach did not explicitly state whether it has retroactive
effect on trials already conducted. However, we need not decide that question, because we agree
with the Morans that they actually filed their action claiming adverse possession, and as a
practical matter, adverse possession was effectively litigated.

        Adverse possession requires the property claimant to prove clearly that they actually,
visibly, openly, notoriously, exclusively, and continuously possessed the property for at least 15
years in a manner hostile to the true owner’s title and either with the true owner’s knowledge or
so blatantly that the true owner must be considered on notice. Burns v Foster, 348 Mich 8, 14-
15; 81 NW2d 386 (1957). Regarding platted 19th and 20th streets, the record unambiguously
lacks any evidence that either was ever accepted by the public or improved as streets or pathways
in any manner. There was evidence that if the platted streets were to be opened up as such, use
would be made of them. However, the only evidence that any of the back lotters had actually
used those platted streets was vague; we have not been cited any evidence that platted 19th or 20th
streets were specifically ever so used. In contrast, the evidence showed that the Morans erected
fences in 1952 and other structures within those fences thereafter, which, under the
circumstances, gives every indication of being unambiguously and openly hostile to any possible
use of the land as streets.

       We believe the Morans have adversely possessed the land that they fenced-in. Therefore,
the other owners in the subdivision had the burden of proving “reasonable objections” to the
vacation of that land pursuant to the LDA. See In re Gondek, 69 Mich App 73; 244 NW2d 361

                                                -6-
(1976). We conclude that in light of the Morans’ contiguous ownership of the entire length of
the streets in question, the testimony that the streets are not practical access routes to the beach,
the other available access routes, and the somewhat speculative nature of what the subdivision
may look like in the future, no such reasonable objections can be found.

        In summary, we believe that the trial court, faced with a magnificently convoluted and
contentious situation, for the most part crafted as equitable a result as the law and evidence could
permit under the circumstances. However, the trial court’s decision not to vacate 19th and 20th
streets was improper, and while we commend the trial court’s intentions, we must reverse that
ruling.3 Because the parties averred at oral argument that all other issues had been resolved, we
have not considered them. We remand this matter to the trial court and instruct the trial court to
vacate 19th and 20th streets to the extent the Morans actually used the land thereunder for the
requisite 15-year period in favor of the Morans and modify the plat accordingly. In Docket
Number 318041, the appellees are the prevailing party and may tax costs pursuant to MCR
7.219(A). In Docket Number 318096, neither party has prevailed in full, so neither party may
tax costs. We do not retain jurisdiction.

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Amy Ronayne Krause




3
  We express no opinion regarding the propriety of the trial court’s rulings regarding the other
platted streets, because, as discussed, they are not properly before us.


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