|
No. 134665
| Frank J. Tomecek, Jr., and Janis H. Tomecek, |
|
John J. Bursch |
Plaintiffs-Appellees, |
|
Matthew T. Nelson |
| v |
(Appeal from Ct of Appeals) |
|
|
(Berrien - Maloney, P.) |
|
|
| Andrew Lucian Bavas, et al, |
|
Jeffery V. Stuckey |
Defendants-Appellants, |
|
Phillip J. DeRosier |
| and |
|
|
| Indiana Michigan Power Company, d/b/a American |
|
|
| Electric Power Company, Inc., Michigan Depart- |
|
|
| ment of Labor and Economic Growth, and |
|
|
| Berrien County Drain Commissioner, |
|
|
Defendants-Appellees, |
|
|
| and |
|
|
| Daniel Johnson, et al, |
|
|
| Defendants. |
|
|
| __________________________________________ |
|
|
Click to view briefs in Adobe format:
Plaintiffs-Appellees' Brief on Appeal>>
Defendants-Appellants' Brief on Appeal>>
Defendants-Appellants' Reply Brief>>
Michigan Lake & Stream Associations, Inc.'s Amicus Curiae Brief
Walloon Lake Association's Amicus Curiae Brief>>
Background
The plaintiffs, Frank and Janis Tomecek, have owned Lot 2 of the Plat of O. T. Henkle for many years. They now wish to build a house on this lot but, in order to do so, must have access to utilities. A restrictive agreement relating to the property provides that “no building, structure or dwelling shall be constructed on Lot 2 of said plat unless and until a municipal sanitary sewer line is made available to the premises.” The defendants argue that there is no sewer line available because there is no sewer easement; therefore, no building can be constructed on Lot 2, they contend. The plaintiffs argue that there is a sewer line available and that the only question is how to access it. The trial court granted the plaintiffs’ motion for summary disposition, finding that a pre-existing “central drive easement” provides a right of passage, including for utilities, over the easement. However, the court refused to establish an easement by necessity for public utilities. The plaintiffs were entitled to a revision of the plat under the Land Division Act, MCL 560.101, et seq., to provide for the changed use of the “central drive easement,” the trial court said. The Court of Appeals affirmed the trial court in a split published opinion. The drive easement was meant only for ingress or egress from the property, but under the Land Division Act, the court could revise the plat to allow for the use of the drive easement for utilities, the Court of Appeals majority said. Moreover, the majority reasoned, the Land Division Act’s language for “vacating, correcting, or revising a plat” was designed not just to alter the plat map, but to alter the underlying property interests reflected in the map. The Court of Appeals majority also found that the trial court could be affirmed on an alternate basis, because there should be an easement by necessity for public utilities. The dissenting judge stated that, because the definition of “plat” in the Land Division Act referred to a map, the only thing that could be changed was the map if the map was in error. He did not conclude that the underlying property rights could be affected. The defendants appeal.
Top of Page
|
