MORSE v COLITTI
Docket No. 328212
317 MICH APP 526
Submitted October 12, 2016. Decided October 18, 2016.
The Court of Appeals held:
When a person purchases property that is recorded in a plat, the purchaser receives both the interest described in the deed and the rights indicated in the plat. A court seeks to effectuate the intent of the plattor when interpreting a plat. The plat “dedicated” the Park to “the use of the present and future lot owners.” Because language dedicating land for “the use” of others was consistent with a grant of an easement, not a grant of fee ownership, the plat granted an easement in the Park. Moreover, because “the use” of the Park was dedicated to “the present and future lot owners,” the holders of the easement were the present and future lot owners, not the public at large. The trial court erred when it described the dedication of the Park as a public dedication. - The trial court‘s statement that the Park was “merely an extension of the easement of the walkway” served to describe the scope of the easement in the Park as the same as the scope of the easement in the Walk; the trial court was not stating that the Park and the Walk constituted a single property feature. Instead, the statement reflected the trial court‘s conclusion that because of the Park‘s character, the scope of the easement in the Park did not include traditional park purposes but was limited to the right to traverse the Park. Accordingly, the Colittis’ argument that the trial court treated the Walk and the Park as a single property feature was without merit.
- When a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large. In this case, because Morse at a minimum had an easement in the Park, he had a substantial interest in determining what rights the Colittis and others had in building a dock and mooring a boat at the shore of the Park. In other words, because only lot holders had an easement in the Park, Morse had a special injury or right, or substantial interest, that would be detrimentally affected in a manner different from the citizenry at large. Accordingly, Morse had standing to challenge the Colittis’ erection of the dock.
- If a dominant estate with easement rights is divided, all resulting parcels take a share in the easement as long as an unreasonable burden is not imposed on the servient estate. Generally, a mere increase in the number of persons using an unlimited right of way to which the land is subject is not an unlawful additional burden. In this case, Lot 44 in the West
Beach plat—the owner of which possessed easement rights in the Walk—was divided, and the Colittis had tenants who lived on one of the resulting parcels. Because a mere increase in the number of persons using a right of way is not an unlawful additional burden, the mere use of the Walk by the tenants (absent some further showing) did not impose an unreasonable burden on the servient estate. Accordingly, the Colittis’ tenants had a right to use the Walk to access the lake, and the trial court did not err by failing to preclude them from doing so. - An owner of property abutting a public street has a reversionary interest to the center of the street. Regardless of how the street was dedicated to the public, title to a street that is vacated or abandoned vests in the owners of the lots abutting the street. In Thies v Howland, 424 Mich 282 (1985), the Supreme Court applied the general rule that, unless a contrary intent appears, the owners of land abutting a street are presumed to own the fee in the street to the сenter, subject to the public easement. The Supreme Court then applied a variant of this rule in 2000 Baum Family Trust v Babel, 488 Mich 136 (2010), when the Court held that owners of land abutting a privately platted walkway that is contiguous to the water are presumed to own the fee in the entire walkway, subject to an easement. On the basis of these two cases and the Supreme Court‘s determination in Little v Hirschman, 469 Mich 553 (2004), that pre-1968 private dedications convey “at least an irrevocable easement in the dedicated land,” the 1928 plat in this case conveyed not only an easement to the lot owners generally, but it conveyed an additional fee interest to the lot owners whose property lay adjacent to the platted walks. Therefore, Morse and the Colittis each owned a fee interest to the midpoint of the Walk, subject to the easement rights of the lot owners generally, and the trial court erred by failing to grant summary disposition in favor of Morse on that issue.
- The owner of a fee interest has the right to keep his or her property free from trespass and significant encroachment. In this case, trial exhibits and testimony showed that at least some portion of the fence was built near Morse‘s property line—and therefore within the portion of the Walk in which he owned a fee interest—but the extent to which the fence and related structures encroached onto Morse‘s portion of the Walk could not be determined. Remand was necessary for that determination as well as for a determination of the appropriate remedies.
- The holder of an easement cannot make improvements to the servient estate if those improvements are unnecessary for the effective use of the easement or if the improvements unreasonably
burden the servient estate. Testimony describing frequent feuds between Morse and the Colittis indicated that a fence might possess some utility in providing a barrier between the neighbors; however, it was questionable at best whether the fence, as erected, was necessary to the effective use of the Walk as an easement. Additionally, placement of the fence combined with other structures that the Colittis erected on the eаsement had the effect of making it appear as though the Walk was part of the Colittis’ lot, which could have deterred lot owners who wished to use the easement. The trial court clearly erred by focusing solely on the fence, by offering no rationale for its finding that the fence did not overburden the Walk other than that, given the poor relations between Morse and the Colittis, it was “probably beneficial for the parties to keep that fence up,” and by failing to address whether the fence and related structures on Morse‘s portion of the Walk were necessary for the effective use of the easement. - With regard to the portion of the Walk owned by the Colittis, the Colittis were permitted to use the property in any manner that did not conflict with the rights of the easement holders. Because the exact location of the structures could not be determined from the record, the trial court was directed on remand to determine which portions of the fence erected on the Colittis’ side of the midpoint of the Walk were valid uses of the property that did not confliсt with the rights of the easement holders.
- The “last antecedent” rule of statutory construction provides that a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent unless something in the statute requires a different interpretation. Section 514 of the BCZO provides that “[f]ences and walls shall not be located outside or beyond the property or lot lines of the lot or parcel.” Plaintiff pointed to nothing in the BCZO that prohibited applying the modifying clause—“of the lot or parcel“—only to the last antecedent, i.e., “lot lines.” Because testimony showed that the fence and wall were located entirely within “the property” of the Walk, the fence and wall did not violate the BCZO.
- A trespass is an unauthorized invasion of the private property of another.
MCL 600.5805(1) provides that a plaintiff shall not bring an action to recover damages for injury to property unless, after the claim first accrued to the plaintiff, the action is commenced within the limitations period.MCL 600.5805(10) provides that the period of limitations is three years after the time of the injury for all actions to recover damages for injury to property.MCL 600.5827 provides that the limitations period runsfrom the time the claim accrues and that the claim accrues at the time the wrong upon which the claim is based was done, regardless of the time when damage results. The “wrong” is “done” when both the act and the injury first occur. In this case, with regard to Count I, the alleged act constituting the trespass and the injury to Morse occurred when the Colittis built the pathway and stairway, which was no later than September 14, 2009. Because Morse did not file his trespass claim within three years after the claim accrued, the claim (insofar as it sought monetary damages) was time-barred. The trial court did not err by granting summary disposition to the Colittis on Count I insofar as it sought monetary damages for trespass. However, under a fair reading of Morse‘s complaint, the relief that he principally sought was injunctive in nature because Morse alleged that the Colittis seized a portion of his property, i.e., Morse‘s portion of the Walk, and requested that the trial court grant injunctive relief to rectify the alleged seizure. Because Morse sought injunctive relief, the applicable statute of limitations was MCL 600.5801 , which contains a 15-year limitations period. The trial court erred by granting summary disposition on statute-of-limitations grounds in favor of the Colittis insofar as the claim sought injunctive relief. With regard to Count II, because there was evidence that the Colittis’ alleged act of improperly installing gravel did not cause injury to Morse‘s property until the summer of 2012—which, if established, meant that the claim did not accrue until 2012—Morse‘s nuisance claim was not barred by the statute of limitations. Therefore, the trial court erred by granting summary disposition to the Colittis on Count II. Finally, because neither the fence nor the wall violated the BCZO, the trial court did not err by granting summary disposition to the Colittis on Count III.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
PROPERTY — WATER AND WATERCOURSES — RIPARIAN RIGHTS — OWNERS OF LAND ABUTTING A PRIVATELY PLATTED WALKWAY CONTIGUOUS TO WATER.
An owner of property abutting a public street has a reversionary interest to the center of the street; regardless of how the street was dedicated to the public, title to a street that is vacated or abandoned vests in the owners of the lots abutting the street; generally, unless a contrary intent appears, the owners of land abutting a street are presumed to own the fee in the street to the center, subject to the public easement; owners of land abutting a privately platted walkway that is contiguous to the water are presumed to own the fee in the entire walkway, subject to an easement.
Outside Legal Counsel PLC (by Philip L. Ellison) for Marc and Joan Colitti.
Before: K. F. KELLY, P.J., and O‘CONNELL and BOONSTRA, JJ.
BOONSTRA, J. In this property dispute, defendants Marc and Joan Colitti1 appeal by right the trial court‘s June 18, 2015 judgment following a bench trial. The trial court held, in part, that defendants’ dock overburdened the property at issue, and the court ordered its removal. Defendants contest plaintiff‘s standing and also challenge certain other aspects of the trial court‘s rulings. Plaintiff, Richard Morse, cross-appeals regarding the trial court‘s denial of his request for removal of a fence erected by defendants on the property, its failure to preclude the use of the property by defendants’ back-lot tenants, and its earlier grаnt of partial summary disposition in favor of defendants with respect to defendants’ construction on the property of a stairway and a pathway forged with landscaping blocks. We affirm in part, reverse in part, and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff and defendants own lots in the West Beach neighborhood bordering Fine Lake in Barry County. The 1928 West Beach plat dedicated the “streets, alleys and parks” to “the use of the present and future lot
Plaintiff filed suit in 2013, in part alleging and seeking monetary damages for trespass, nuisance, and the violation of the Barry County Zoning Ordinance (BCZO). Plaintiff additionally requested that the trial court (1) determine that he owned the fee to the center of the Walk, subject to an easement for ingress and egress; (2) determine that defendants had trespassed on his property and order defendants to remove all dirt, landscaping blocks, and fences from his portion of the Walk (and that, if defendants failed to do so and plaintiff removed the items, plaintiff would receive a judgment against defendants with damages trebled); (3) determine that defendants’ erection of a dock at the end of the Walk violated the BCZO; (4) enjoin defendants from allowing their tenants at 3406 West Shore Drive to use the Walk to gain access to Fine Lake; and (5) grant plaintiff attorney fees and costs. Plaintiff
By order dated November 4, 2014, the trial court denied the parties’ cross-motions for summary disposition. The court further determined “that the [Walk] is not, at this time, subject to the reversionary interest that Plaintiff claims” and “that all lot owners are entitled to use [the Walk] as a [sic] easement.” By order dated June 2, 2015, the trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) (claim barred by limitations period) on plaintiff‘s nuisance, trespass, and violation of the BCZO claims regarding the pathway and stairway. The trial court also held that lot owners had an easement interest in the Park and described the Park as “merely an extension of the easement of the walkway... subject to the right of the public‘s right [sic] to traverse the area.”4 The trial court reserved other issues regarding the fence and the dock for trial. Following a bench trial, the trial court issued the judgment described, in part, earlier. This appeal and cross-appeal followed.
II. DEFENDANTS’ APPEAL
A. PUBLIC DEDICATION
On appeal, defendants argue that the trial court erred when it described the dedication of the Park as a
When a person purchases property that is recorded in a plat, the purchaser receives both the interest described in the deed and the rights indicated in the plat. Minerva Partners, Ltd v First Passage, LLC, 274 Mich App 207, 219; 731 NW2d 472 (2007). When interpreting a plat, this Court seeks to effectuate the intent of the plattor. Tomecek v Bavas, 482 Mich 484, 490-491; 759 NW2d 178 (2008) (opinion by KELLY, J.); id. at 499 (CAVANAGH, J., concurring in part and dissenting in part). When the language of a legal instrument is plain and unambiguous, it is to be enforced as written, and no further inquiry is permitted. Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003).
The plat “dedicated” the Park to “the use of the present and future lot owners.” Because language dedicating land for “the use” of others is consistent with a grant of an easement, not a grant of fee ownership, Dobie v Morrison, 227 Mich App 536, 540; 575 NW2d 817 (1998), the plat granted an easement in the Park. Moreover, because “the use” of the Park was
B. SEPARATE PROPERTY FEATURES
Defendants also argue that the trial court erred by describing the Park as “merely an extension of the easement” in the Walk. According to defendants, the trial court treated the Park and the Walk as one property feature. Although defendants concede that this error is “seemingly minor,” they still seek its correction because they claim that the trial court‘s statement “casts grave uncertainty [on] whether riparian rights run to the Park or to the Walks or both.” Indulging defendants, we disagree that the trial court ever treated the Park and Walk as a single property feature.
At thе summary disposition hearing, the trial court stated that, because of the word “use” in the dedication, the lot owners only received an easement in the Park. It then defined the scope of the easement, concluding that the Park “is merely an extension of the easement” in the Walk. When this challenged statement is read in context, the trial court was not stating that the Park and the Walk constituted a single property feature. Rather, the statement reflected the trial court‘s conclusion that, because of the Park‘s character, the scope of the easement in the Park did not include traditional park purposes, but was limited to the right to traverse the Park. Therefore, the trial court‘s state-
C. STANDING
Next, defendants argue that plaintiff lacked standing to challenge any alleged misuse of riparian rights in the Park (i.e., defendants’ erеction of the dock) because he did not have any riparian rights in the Park. The issue whether a party has standing to assert a claim is a legal question reviewed de novo. Johnson v Dep‘t of Natural Resources, 310 Mich App 635, 649; 873 NW2d 842 (2015).
Land that includes or is bounded by water is defined as riparian. Thies v Howland, 424 Mich 282, 287-288; 380 NW2d 463 (1985).6 Owners of riparian land enjoy certain exclusive rights, including the rights to erect and maintain docks and to permanently anchor boats off the shore. 2000 Baum Family Trust v Babel, 488 Mich 136, 166; 793 NW2d 633 (2010). Generally, it is an “indispensable requisite” that land actually touch water to be riparian, but there are exceptions to this rule. Id. at 167.
Taking different views of the Supreme Court‘s decision in Thies, 424 Mich 282, and this Court‘s decision in Dobie, 227 Mich App 536, the parties disagree about whether the existence of the Park between the front lots and Fine Lake means that the front lots are not riparian. However, we need not determine whether the
In Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010), the Supreme Court set forth the general rule regarding standing:
We hold that Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan‘s longstanding historical approach to standing. Under this approach, a litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment. Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant.
Because plaintiff at a minimum has an easement in the Park, he has a substantial interest in determining what rights defendants and others had in building a dock and mooring a boat at the shore of the Park. In other words, because only lot holders had an easement in the Park, plaintiff had a special injury or right, or substantial interest, that would be detrimentally affected in a manner different than the citizenry at large.
III. PLAINTIFF‘S CROSS-APPEAL
A. USE OF THE WALK BY DEFENDANTS’ TENANTS
Plaintiff argues that the trial court erred by failing to address whether defendants’ tenants were allowed to use the Walk to access Fine Lake. The parties dispute whether plaintiff adequately pleaded this issue; the trial court held that he did not do so. However, even if plaintiff adequately pleaded this issue, plaintiff is not entitled to an order precluding the tenants from using the Walk to access Fine Lake.
If a dominant estate with easement rights is divided, all resulting parcels take a share in the easement as long as an unreasonable burden is not imposed upon the servient estate. See von Meding v Strahl, 319 Mich 598, 611; 30 NW2d 363 (1948); Walker v Bennett, 111 Mich App 40, 44; 315 NW2d 142 (1981). “Generally, a mere increase in the number of persons using an unlimited right of way to which the land is subject is not an unlawful additional burden.” Henkle v Goldenson, 263 Mich 140, 143; 248 NW 574 (1933).
B. THE FENCE AND RELATED STRUCTURES
Plaintiff raises several issues relating to the fence that defendants erected on the Walk, specifically that it interferes with his access to the Walk, that it overburdens the easement on the Walk, and that it violates the BCZO. In moving for summary disposition, plaintiff argued that, because he owns land abutting the Walk, he has a fee interest in the Walk (subject to the easement interests of lot owners generally) and was entitled to “free” access from his property to the Walk. The trial court held that all lot owners had an easement in the walk and initially indicated at the summary disposition hearing that it did not need to address whether plaintiff had a reversionary fee interest because there was no indication that the Walk would ever be abandoned. Yet, as noted, the trial court subsequently determined in its November 4, 2014
1. PLAINTIFF‘S INTEREST IN THE WALK
Plaintiff argues that, as an owner of property abutting the Walk, he owns a fee interest in one-half of the Walk and is therefore entitled to access it from “any” and “all” points along the boundary line between his property and the Walk, that defendants’ fence prevents him from doing this, and that the trial court therefore erred by refusing to order its removal. Indeed, the record reflects that defendants’ erеction of the fence within the Walk (and just outside plaintiff‘s property line) effectively forecloses plaintiff‘s access to the Walk except by entering from the street that fronts both plaintiff‘s and defendants’ lots. For the reasons that follow, we agree that plaintiff possesses a fee interest to the midpoint of the Walk, that the trial court erred by failing to grant summary disposition in favor of plaintiff on that issue, and that a remand is therefore required.8
In Thies, 424 Mich at 291-294, the property owners possessed lots abutting a 12-foot “walk” that separated a front row of lots from a lake and was dedicated for the joint use of the owners of the plat (i.e., present and future lot owners). The Supreme Court held that each owner possessed a fee interest in the walk for the portions that abutted the owner‘s property.9
In this case, the 1928 plat dedicates “the streets, alleys and parks” to “the use of the present and future lot owners.” While the Walk is not specifically described as either a “street” or an “alley,” our review of the plat map indicates that there is nothing that could be termed an “alley” other than the walks that periodi-
We conclude that the context of the instant case provides real meaning to the words “at least” and that, based on the general principles articulated in Thies and 2000 Baum Family Trust, the plat in this case conveys not only an easement to lot owners generally, but an additional fee interest to the lot owners whose property lies adjacent to the platted walks. We therefore hold that plaintiff and defendants each own a fee interest in one-half of the Walk, subject to the easement rights of lot owners generally, and that the trial court erred by failing to grant summary disposition in favor of plaintiff on that issue.
It is undisputed that the owner of a fee interest has the right to keep his or her property free from trespass and significant encroachment. See Dalley v Dykema Gossett PLLC, 287 Mich App 296, 315; 788 NW2d 679 (2010); Kratze v Indep Order of Oddfellows, 442 Mich 136, 149; 500 NW2d 115 (1993); Smeberg v Cunningham, 96 Mich 378, 385; 56 NW 73 (1893). From the trial exhibits and testimony, it appears that at least some portion of the fence (if not the entire fence) is built near plaintiff‘s property line (and therefore within the portion of the Walk in which plaintiff owns a fee interest); however, we are unable to definitively determine from the record to what extent the fence and related structures encroach onto plaintiff‘s portion of the Walk. Having determined that plaintiff owns a fee
2. BURDEN ON THE EASEMENT
Plaintiff next argues that the trial court erred by finding after trial that defendants’ fence did not overburden the Walk. We conclude that the trial court clearly erred by focusing solely on the fence, by offering no rationale for its finding that the fence did not overburden the Walk other than that, given the apparently poor relations between plaintiff and defendants, it was “probably beneficial for the parties to keep that fence up,” and by failing to address whether the fence and related structures on plaintiff‘s portion of the Walk were necessary for the effective use of the easement. Wiggins, 291 Mich App at 550. For the reasons that follow, we further have serious reservations about whether the fence (and related structures) were necessary for the effective use of the easement and whether they did, in fact, overburden the easement.13
Our anаlysis of this issue is affected by our determination that plaintiff and defendants each own a fee interest to the centerline of the Walk, subject to the easement for lot owners, and also are themselves lot
Joan Colitti testified that plaintiff had at least one aggressive dog and that plaintiff‘s invisible dog fence went across the Walk and ended underneath defendants’ hedges (meaning the dogs were able to access the Walk). Further, Marc Colitti testified that plaintiff once “sic‘d” his dogs on neighbors who were using the Walk. Joan testified that at some time before the fence was erected, plaintiff “charged out” at defendants while they were weed-whacking on the Walk. She also testified that plaintiff threatened her and called her names. Additionally, Joan testified that plaintiff, when he mowed his lawn, directed the discharge from the
Additionally, from the record before us, the placement of the fence combined with other structures defendants erected on the easement have the effect of making it appear as though the Walk is part of defendants’ lot. That is, the nature of the fence and its apparent placement on the far side of the Walk along plaintiff‘s lot line—in combination with the placement of landscaping blocks, a retaining wall, and a stairway leading down to defendants’ dock (at least some of which, from the record before us, appеars not to be confined to defendants’ side of the Walk)—all give the appearance that the Walk is or has been appropriated to fall within the confines of defendants’ lot. This could well have a deterrent effect on lot owners who might wish to use the easement. In sum, the fence might both be unnecessary to the effective use of the easement and
With regard to the portion of the Walk owned by defendants, defendants are permitted to use the property in any manner that does not conflict with the rights of the easement holders (including plaintiff). Smeberg, 96 Mich at 385; Morrow v Boldt, 203 Mich App 324, 329; 512 NW2d 83 (1994). These rights include the right to unobstructed passage over the Walk at all times and “such rights as are incidental or necessary to the right of passage.” Morrow, 203 Mich App at 329. As noted earlier, we are unable to determine from the record before us the exact location of the entirety of the fence or the other structures placed within the Walk. On remand, in addition to determining which portions of the fence and other structures need to be removed as violative of plaintiff‘s fee interest, the trial court should conduct further proceedings to determine which portions erected on defendants’ side of the midpoint of the Walk are valid uses of the property that do not conflict with the rights of the easement holders to use the Walk.
3. VIOLATION OF THE BCZO
Next, in Count III, plaintiff argues that the fence and a “landscaping wall” (or indeed the erection of any
The rules governing statutory interpretation apply to ordinances. Bonner v Brighton, 495 Mich 209, 222; 848 NW2d 380 (2014). Thus, this Court‘s goal in the interpretation of an ordinance is to discern and give effect to the intent of the legislative body. If the language used by the legislative body is clear and unambiguous, the ordinance must be enforced as written. Ameritech Publishing, Inc v Dep‘t of Treasury, 281 Mich App 132, 136; 761 NW2d 470 (2008); Warren‘s Station, Inc v Bronson, 241 Mich App 384, 388; 615 NW2d 769 (2000).
Section 514 of the BCZO provides that “[f]ences and walls shall not be located outside or beyond the property or lot lines of the lot or parcel.” Barry County Zoning Ordinance, § 514. According to plaintiff, the fence violates the BCZO because it is located on the Walk, and the Walk is not a “lot or parcel” as those terms are defined by the BCZO.15 However, “[t]he last
C. STATUTE OF LIMITATIONS
Finally, plaintiff argues that the trial court erred by granting summary disposition on Counts I, II, and III—insofar as they relate to the pathway and stairway—of the first amended complaint. We review de novo a trial court‘s decision on a motion for summary disposition. Wiggins, 291 Mich App at 550. Summary disposition is proper under MCR 2.116(C)(7) if “[e]ntry of judgment... is appropriate because... [the] statute of limitations” barred the claim. In reviewing a motion for summary disposition
A plaintiff shall not bring an action to recover damages for injury to property unless, after the claim first accrued to the plaintiff, the action is commenced within the limitations period.
For many years, Michigan courts recognized an exception to application of the statute of limitations when there were continuing wrongful acts. See Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 280; 769 NW2d 234 (2009). Under the “continuing wrongs” doctrine, the limitations period, rather than beginning to run on the occurrence of the first wrongful act, did not begin to run until the continuing wrong was abated. Id. However, the Michigan Supreme Court in 2005 abrogated the continuing-wrongs doctrine. Id. at 288.
The limitations period runs from the time the claim accrues.
In Count I of the second amended complaint, plaintiff alleged that defendants trespassed on the Walk by placing landscaping blocks on the Walk, raising a portion of the Walk, erecting a retaining wall, and filling the area with gravel. A trespass is an unauthorized invasion of the private property of another. Dalley, 287 Mich App at 315. To establish a trespass, there must be proof of an unauthorized intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession. Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 67; 602 NW2d 215 (1999). Once such an intrusion is proved, the trespass is established, and the plaintiff is entitled to at least nominal damages. Id. The alleged act constituting the trespass and the injury to plaintiff occurred when defendants built the pathway and stairway. The evidence showed that the pathway and stairway were completed no later than September 14, 2009. Because plaintiff did not file his trespass claim within three years after the claim accrued, the claim (insofar as it sought monetary damages) was time-barred.
The statute of limitations applicable to a quiet-title cause of action is set forth in
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this sеction.
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(4) In all other cases under this section, the period of limitation is 15 years.
Thus, although plaintiff‘s trespass claim—to the extent it sought monetary damages—is barred by the statute of limitations, plaintiff‘s trespass claim—to the extent it sought injunctive relief—is not barred by the statute of limitations.17 The trial court therefore erred by granting summary disposition on statute-of-limitations grounds in favor of defendants on Count I of plaintiff‘s second amended complaint insofar as Count I sought injunctive relief. Accordingly, we reverse in part and remand for further proceedings consistent with our determination with respect to plaintiff‘s ownership of a fee interest in the Walk.
In Count II of the second amended complaint, plaintiff alleged that defendants “installed gravel inexpertly” that was to have been contained within the landscaping blocks and that “the installation was not proper.” Plaintiff alleged that the improper installation caused water, gravel, and sand to be cast on “plaintiff‘s property” in such a fashion and with such fre-
In Count III of the first amended complaint, plaintiff alleged that the fence and a “landscaping wall” built by defendants in the Walk violated the BCZO. Again, a structure erected in violation of a zoning ordinance constitutes a nuisance per se.
We need not address, however, whether Count III is barred by the applicable statute of limitations. As discussed earlier in this opinion, neither the fence nor the landscaping wall violated the BCZO. Therefore, the
IV. CONCLUSION
Affirmed with regard to the main appeal, apart from our conclusion that the trial court erred by referring to the dedication of the Park as a public dedication. Affirmed in part and reversed and remanded in part with regard to the cross-appeal. The trial court erred by not determining that plaintiff owned a fee interest in the Walk to the centerline, by failing to determine the extent to which the fence and related structures encroached on plaintiff‘s property and to fashion an appropriate remedy, and by holding that the fence did not overburden the easement. Further, plaintiff‘s nuisance claim regarding the installation of gravel and landscaping blocks was not time-barred, nor was plaintiff‘s trespass claim (which we construe as a claim to quiet title) insofar as it sought injunctive relief. However, the trial court did not err by determining that the fence and wall did not violate the BCZO or that plaintiff‘s trespass and nuisance claims were otherwise time-barred. We remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction. No costs may be taxed, neither party having prevailed in full. MCR 7.219(A).
K. F. KELLY, P.J., and O‘CONNELL, J., concurred with BOONSTRA, J.