*1
482 MICH 484
TOMECEK v BAVAS
(Calendar
6).
Argued
2,
Docket No. 134665.
October
No. Decided
December
2008.
Tomecek, Jr.,
brought
Frank J.
and Janis H. Tomecek
an action in
County
Court,
Division, against
the Berrien
Trial
Civil
Andrew L.
others, seeking declaratory
Bavas and
regard
and other relief with
an
plaintiffs’
easement that benefited the
landlocked lot.
agreement,
plaintiffs
Because of a restrictive
the
could not build a
they
home on the lot unless
obtained access to a sewer line. The
question,
easement in
plat, gave
labeled a “drive easement” on the
plaintiffs ingress
egress
lot,
the
they sought
to and
from their
public
court,
to use the easement
Maloney,
for
utilities. The
Paul L.
J., granted
plaintiffs’
summary disposition
motion for
regard
declaratory
to the
concerning
scope
need for
relief
of
easement,
granted only
but concluded that the drive easement
right
passage
granted
a
over the land. The court
the defendants’
summary disposition
motion for
on the issue of an easement
necessity
public
court, however,
utilities. The
also concluded
plaintiffs
had met their burden under MCL 560.221 and
560.226(1)
(LDA),
of the Land
seq.,
DivisionAct
MCL 560.101 et
support
plat
utility easement,
granted
revision of
to include a
summary disposition
plaintiffs
issue,
for the
on that
and entered
revising
plat
an order
in that manner. Several defendants
(hereafter
appealed
defendants”),
referred to as “the
and the
plaintiffs cross-appealed.
Appeals,
The Court of
HOEKSTRA (Zahra, PJ., dissenting), affirmed,
JJ.
holding that the LDA
OWENS,
gave
power
errors,
trial courts the
not
to correct
but also to
underlying
alter a
to affect the
substantive
interests.
that,
The Court further held
had the trial court not revised the
utility easement,
plaintiffs
to allow a
would have been
utility
by necessity.
entitled to a
App
(2007)
Supreme
granted
appeal.
. The
Court
leave to
Markman, authority give alter courts the to LDA not trial The does unnecessary question rights, to reach the property and it is by necessity expanded be should the doctrine of easement whether access. to include utilities part. part, part, reversed in and vacated
Affirmed that, joined by because Justice stated Justice Chief Taylor, strong easement” were that the words “drive there is a inference meaning on the central easement and the to the same intended have may plat, it be inferred that the easement of the south scope, grantors to have the same which intended the two easements egress. ingress To allow and for and includes access both for utilities prevent- drive easement for utilities while the defendants to use their doing preposterous ing plaintiffs be a result. the from the same would plat Further, although a recorded or the LDA allows a court to order vacated, corrected, revised, only map plat any part or of it to be particular area physical property on a the interests that describes property land; not, by itself, a determination of substantive it is Accordingly, intended to enable a court to the LDAwas not interests. right; property it was intended nonexistent establish an otherwise rights already property reflect a court to alter a to to allow unnecessary question Finally, whether to reach the in existence. it is necessity expanded include should be to of easement the doctrine access. utilities the joined by stated that Justice Weaver, Justice Cavanagh, ground granted request on the plaintiffs’ for relief should be ambiguous latently and that the language easement was the grantors writing surrounding showed that the its circumstances through the plaintiffs’ property access utilities to intended regarding Although whether the issue central drive easement. rights property not have been should LDA enables a court to alter rights reached, in at to alter the LDA does allow courts least some circumstances. disagreed partially partially agreed Justice Weaver in Justice opinion’s for the reasons stated lead conclusions joined. opinion, which she Cavanagh’s Opinion by Kelly, J. 482 MICH 484 Young, joined by Corrigan Justice Justices stated Markman, give authority that the LDA does not trial courts to alter property rights and was substantive that there insufficient evi- support a dence to conclusion that the intended plaintiffs’ encompass Moreover, to utilities access. isit unnecessary question reach the whether doctrine of ease- by necessity expanded ment should be include utilities access. - - Property - Land Division Act Plats of Plats. Revision provisions give the Land Division Act that circuit courts authority to order the alteration of a cannot be used to create (MCL 560.226[1]). 560.221; rights substantive MCL Warner & (by Norcross Judd LLP Devin S. Schin- dler, Bursch, Nelson), John J. T. Matthew for the plaintiffs. (by
Dickinson PLLC V. Wright Jeffery Stuckey, Kevin DeRosier) O’Dowd, and Phillip J. and DeFrancesco Dienes) Dienes PC. A. (by Scott for the defendants. Amici Curiae: *3 Cawthorne,
Kelley (by PLLC Frank J. Kelley and Steven D. for the Weyhing), Walloon Lake Association. Law, Richardson, & Weathers (by PC. H. Clifford Bloom) Michigan for the Associations, Lake & Stream Inc. J. case This involves real property to which KELLY, plaintiffs seek an easement for the purpose connect- ing city to a sewer across the lots neighbors. of their (1) (LDA)1 issues are the whether Land Act Division can be used to property rights, create substantive such as (2) utility easement, by whether an necessity (3) for utilities should be case, allowed in this whether the restrictive covenant that runs with the land in question the bars easement. seq. MCL 560.101 et Bavas Tomecek v by provides the LDA held that Appeals
The Court of gives rights changes property substantive allow a to revise authority court the trial that an easement It also concluded utility easement. in created be appropriately for utilities could necessity not bar covenant does that the restrictive case and this easement. Appeals opinion Court of the result We affirm to allow intended original grantors and conclude through property Tomeceks’ to the utility access the restrictive agree drive easement. We central However, we reverse not bar the easement. does covenant LDA can alter holding Appeals Court of unnecessary Finally, it was rights. property substantive an easement to address whether Appeals for the Court of applied in Michigan recognized be by necessity should Therefore, Appeals affirm the Court we in this case. in part. and vacate it it in part, in reverse opinion part,
FACTS property Tomecek own Frank and Janis Plaintiffs Michigan along Lake Henkle subdivision the O. T. a house on their to build County. They wish Berrien (Lot 2).2 claim that a restrictive Defendants prevents plaintiffs the plat that runs with covenant 2. The covenant states building on Lot erecting a from and until on Lot “unless house cannot be built that a to the is made available sewer line sanitary a municipal premises.” an ease- landlocked, have plaintiffs Lot 2 is
Because easement) (the through Lots 1 and 3 over central ment3 map at the end of as “2” on is shown Plaintiffs’ *4 opinion. 3 diagram appended center of the is shown on the lower The easement Lot 2. Lake Road to opinion and runs from Shore 488 484 Opinion by Kelly, J. their Lake Shore they property
which access from Road. they are to use the Plaintiffs claim that entitled central municipal easement access to gain sewer line. A familiarity history with the the O. T. Henkle of in understanding subdivision is this case. In the helpful early 1920s, O. T. Henkle acquired approximately five acres of land on Lake Michigan Chikaming Town ship, County. passed Berrien The T. from O. Henkle, Gladys Farclough, Henkle to C. and W Jane H. (collectively Henkle referred to as “the grantors”).4 1967, n original grantors conveyed what is I defendants, now Lot 1 to of the reserving one an easement for benefit of Lot 2. easement runs from along Lake Shore Road boundary southern of Lot 1.5
Over years, original grantors the next few sold 3, 4, 5, Lots all subject and to an easement running (“the along portion the southern south easement”).6 drive subject Lots 3 and also were to the central 1975, drive easement.7 In was recorded in the At county platting, 3, 4, records. the time of Lots and 5 used the south drive for utilities access8 right-of-way Also, access. the original grantors recorded a restrictive covenant prohibiting the construction of a on until building Lot 2 a municipal sanitary sewer service was made available to the pre- plaintiff Jane Henkle mother is the Tomecek. Janis 5 The map, easement is on the located central easement on the where printed. the word “Drive” is 6 The easement is labeled “Drive Easement” and shown on the left side map. of the easement, The left half central where the word “Easement” appears map. on the provided 3, 4, telephone The south easement Lots 5 with electrical access. *5 489 Bavas Tomecek v by Kelly, J. 1975, Thus, platted the was mises.9 when identically south were the central and easements both the plat, on the as “drive easement” identified had on it. already easement utilities south conveyed 2 to 1976, grantors Lot original In the 2, Lot the plaintiffs bought When plaintiffs. a drawing showing good them with a provided the build a home on lot.10
spot to HISTORY PROCEDURAL 2001, a from the plaintiffs requested In variance Appeals to con- Chikaming Zoning Board Township granted a home lot. When the board struct on their variance, the re- appealed, claiming defendants that a building from prevented plaintiffs strictive covenant did not The trial they home because have sewer access. plaintiffs, ruling granted summary disposition to court to allow to original grantors plaintiffs intended home 2. The court build a on Lot trial observed utility run lines on the south already defendants had easement, to do plaintiffs deserved the same with central their easement. Appeals A divided Court of affirmed the trial panel 11It published opinion.
court’s decision in a
held
trial
to revise
to
empowered
LDA12
court
9
disagree
meaning
“premises”
Plaintiffs
defendants
about
“premises”
to the
restrictive covenant. Plaintiffs contend
refers
in the
exclusively
whole,
claim it
to
as
whereas defendants
refers
subdivision
Lot 2.
10
acquired
property,
original grantors
plaintiffs
before
drawing showing
gave
location for a home on
them another
a desirable
Lot 2.
252;
Bavas,
App
v
NW2d 323
Tomecek
correct,
vacate,
plat. MCL
to
or revise a
The LDA allows a trial court
560.226(1).
Opinion by LDA, include in the utilities central easement. it concluded, a trial than permits merely court do more errors; may correct it underlying alter affect property rights. Appeals held, substantive The Court of in addition, that were an plaintiffs entitled to utilities. necessity OF
STANDARD REVIEW de We novo a trial court’s on a review decision motion *6 for summary disposition.13 party’s The extent rights of a fact, under an question easement is a of and a trial court’s determination of the facts is for reviewed clear error.14 proper and interpretation application of a statute a of presents question law that consider we de novo.15
THE CENTRAL EASEMENT INCLUDED UTILITY ACCESS
AT THE TIME OF PLATTING
We must determine if the central easement running
from Lake Shore Road Lot 2
utility access,
to
includes
or
if
strictly
ingress
egress.
its use is
limited
and
Under
law,
Michigan
well-established
an
“[t]he use of
easement
must be confined
strictly
purposes
for which it was
granted
Exacting
or reserved.”16
“magic words” are not
required
a plat
on
to create an easement.17 When
deeds and
interpreting
plats, Michigan courts seek to
[364]
[14]
Id.
[13]
Blackhawk Dev
(2005).
Corp Village Dexter,
v
of
473 Mich
33, 40;
700 NW2d
findWe intended to on the central easement were easement” “drive on the meaning the same as easement” have that the original easement. We conclude south differently they had have labeled the easements would easement, but allow on the south intended to utilities And we central easement. conclude not on the ease- the central and south original grantors intended scope: both access to have same road ments utility access. ingress egress courts early Michigan recognized as As *7 particular purpose a for a party using right-of-way making the subsequent party a from prevent cannot Todd, plaintiffs Bell v use of the property. same blocking from access to enjoin to the defendant sought Plain- platted a that was but never constructed.19 road in the had blocked unbuilt roads previously tiff Bell case, stating: The same Court dismissed plat. 18 Ass’n, 679-681; Maple 14 v Resort 308 See Curran Island Mich (1944).
NW2d 655
19
Todd,
21;
v
Mich
304
Bell
16 NW
Opinion by that appears [I]t also Railroad street south of South occupied by himself, street is enclosed Bell so that he is doing respect very in his own individual interest in to this precisely street enjoin what he seeks to defendant from doing. preposterous grant prayed It would be the relief circumstances.[20] application for on his under such streets, one, Although here, two not are involved we believe Bell is instructive. use Defendants their “drive easement” prevent for utilities and seek to plaintiffs from their using “drive easement” for the same pur- pose. In Bell, the words of Justice to allow COOLEY such a result be “preposterous.” would also,
It is apparent, envisioned that and, a house would be built on Lot 2 extension, that the central easement would may include utilities. This be gleaned from drawings by Henkel, two C. W one of grantors. The first in 1969, was made six years before the subdivision It platted. was shows Lot adjacent lot to east, Lot 1. On Lot is rectangle with the words “possible house location and dimensions.” central is shown on the drawing.
C. W drawing Henkle made a second in 1978, three years after the subdivision and easements were platted. Like his drawing, first it shows a location on 2Lot where plaintiffs could build a home. The central ease- ment is visible on the drawing. significant It C. W. Henkle included the central easement in his drawings of Lot 2 with a house. He knew then that no house could be erected there until the lot had access to knew, also, sewer line. He that the central easement was the only likely route provide that access. Taken together, drawings these further provide evidence of intent the central drive easement should include utilities.
*8 20 Id. at 28. TOMECEK V BAVAS Opinion by Kelly, J. [493] claim, the word- contrary to the defendants’ Finally, covenant shows of the restrictive ing on house could be built intended that a always intent, the parties’ to discern attempting 2: When Lot documents re- together contemporaneous construe we cov- The restrictive to the same transaction.21 lating contemporaneously 2 was executed enant on Lot therefore, discerning it is relevant plat; in intent at the time. parties’ original grantors make sense that
It does not a sewer language regarding inserted would have building intended that no they had restrictive covenant really had intended to they on Lot 2. If placed ever be Lot'2, have building they on would prevent forever put ever be there. building covenanted that no simply sense, however, if the to a sewer makes The reference eventually building allow a on grantors’ intent was to geo- when the readily apparent Lot 2. This becomes are considered. graphical limitations of the eastern Only five acres size. approximately housing along because a bluff runs half is suitable descending to the beach property, the middle of Therefore, suitable for the five lots Michigan. Lake roughly the 2.5 eastern- adjoin residences each other on most acres of land. and the platted when the subdivision was written,- none of the lots had
restrictive covenant was
tanks22 were
municipal
system. Septic
to a
sewer
access
Co,
Fidelity
Guaranty
&
Constr Co v United States
Interstate
265, 274;
the only plausible alternative for management waste on However, the lots. because of concerns over numerous *9 septic systems and leach relatively fields23in the small area, septic system option every was not an for lot.
Cognizant of problem, grantors likely enacted the restrictive to prevent covenant con- struction of a house on Lot 2 until sewer municipal Hence, service became available to it. the restrictive prevented covenant overloading the small area of land septic waste. aWhen municipal system sewer became available to the 1970s, the late condition in the restrictive covenant was satisfied. The restrictive covenant had served its purpose.
From this we conclude that it was intent of the original grantors that a house could be built on Lot when a municipal sewer became available. We conclude also that the central “drive intended, easement” was like easement,” the south “drive to provide access to the sewer and other utilities.
EFFECT OF THE RESTRICTIVE COVENANT Defendants maintain that the restrictive covenant of 1974 intended prohibit any building on the property until the end of They time. argue that lan- plain guage of the restrictive covenant reflects this. coming surrounding water from the tank damaged. or the area will be This especially likely septic properly body when tanks are located on near a (like water Michigan), in this case that borders Lake because sandy easily soil can become pollutes saturated with chemicals. This surrounding water, causing fish, area plants, and surface serious harm to Craig Cogger, Septic System and other See wildlife. G. Waste Treatment (ac- <http://cru.cahe.wsu.edu/CEPublications/ebl475/ebl475.html> in Soil 12, 2008); Septic Systems cessed December see also Waste Water (ac-
Disposal, <http://www.agwt.org/info/septicsystems.htm> available at 2008). 12, cessed December 23 A leach field is the area of septic land where the wastewater from a deposited. tank is TOMECEKV BAVAS coven- states, hereby “It is The restrictive covenant structure or dwell- building, that no agreed anted and unless and on Lot 2 of said shall be constructed ing to the line is made available municipal until a sewer prohib- claim that the covenant Defendants premises.” 1, the owners of Lots building a home on Lot until its create an ease- 3, 4, grant permission to explicitly service. municipal ment for sewer in the is not reflected words interpretation This As the trial court out: pointed the covenant. reading contradicts Defen- plain
A of this restriction argument: to forever if the wanted [sic] dant’s any on Lot the restriction would preclude construction language by ending the explicit much in have stated as “plat” it it is provision [so “[t]hat after the read word building, hereby agreed that no structure covenanted and plat”]. dwelling on Lot 2 of said or shall be constructed *10 argument regard must therefore fail. Defendants’ in this merely prevented The covenant construction restrictive became available to that lot. on Lot until sewer service RIGHTS THE LDA CANNOT ALTER SUBSTANTIVE PROPERTY surveying LDA and mark- provides process The is com- Property information ing property. subdivided the local on a that is then recorded with piled plat vacate, The LDA allows a circuit court to municipality. correct, argue Defendants plat.24 or revise a recorded plat map only LDA a court to alter a permits rights; it cannot affect existing property reflect properly own- rights underlying property of the the substantive ers. LDA, that our we are mindful construing
When effect to the give is to ascertain primary goal 24 MCL 560.221. Opinion by Kelly,
Legislature’s intent, intent.25 determining When we con- sider first the of a language statute.26 The LDA allows a court to “order a any part recorded or of it to be ,”27 vacated, corrected, or revised. . . “Plat” is defined in the act “a map as or chart of a subdivision of land.”28
The LDA a plat map. defines as a A is a description of the physical property interests on a area particular map, by itself, of land. A is not a determination of substantive interests. If one “revises” a map United States to Michigan show encompassing half of the country, it does not make it so. LDA was never intended to enable a court establish an otherwise nonexistent right. Rather, the act allows a court to alter a plat to reflect property rights already existence. case,
In this LDA did not create new substantive property rights when the circuit court altered the plat to reflect that the central easement encompasses utility right access. This respect existed with to the central easement since its inception, original grantors when the recorded the central easement intending it to include utilities. The trial merely court used the LDA as the tool to validate property rights already existed.
CONCLUSION
when the O. T. Henkle subdivision was
platted,
it was the intent of the grantors
central easement could include utilities. This holding is
supported by
that,
the fact
on
plat,
the central ease-
*11
Wilkes,
(2004).
vNeal
661, 665;
470 Mich
Taylor, C.J., concurred
*12
As the lead
the cardinal rule of inter-
opinion
to
the intent of the
preting
plats
deeds and
effectuate
Ante at 490-491. To effectuate this
rule,
light
parties.
contract,
this Court has
principle
of freedom of
language
of a contract
generally
“[i]f
observed
unambiguous,
it is to be construed accord-
is clear
Grosse
City
meaning.
ing
plain
to its
sense and
...”
Pool, 473
Michigan
Liability
Prop
Pointe Park v
Muni
&
(2005) (citation
188, 197-198;
Mich
500
Extrinsic evidence sometimes also used to in contract, detect an on ambiguity depending whether Id. A ambiguity is latent or patent. patent ambiguity “ document, ‘clearly appears arising on the face of a from ” Id., language Dictionary itself.’ quoting Black’s Law (7th ed). generally necessary Extrinsic evidence is not contrast, In patent ambiguity. ambiguity detect a a latent “ document, readily appear language ‘does not of a but instead arises from a collateral matter when the ” Id. Where applied document’s terms are or executed.’ ambiguity, there is latent extrinsic evidence be used may not the ambiguity, resolve but also to prove Park, Grosse Pointe ambiguity. existence of the latent McCarty Mercury Co, v Mich 198. at See also Metalcraft Kimball, 567, 575; Ives v (1964); 372 Mich NW2d Ives, explaining after that a evidence, latent ambiguity may by parol be shown highlighted Court of this importance doctrine stating that *14 useful, just law, practical
[t]here is no more
rule of
surrounding
than that which admits evidence of
circum-
facts,
stances and collateral
within certain well defined
limits,
purpose
enabling
for the
of
courts
ascertain and
carry
contracting parties.
into effect the intention of
The
applied
cases in which this rule
been
has
are almost
[Ives,
innumerable.
Similarly,
the surrounding circumstances
therefore,
show that there was a latent ambiguity;
extrin-
sic evidence should be used to determine and effectuate
the intent of the
parties.
central and south drive
easements were described in the deeds as “a non-exclusive
right way
for driveway purposes.” “Driveway purposes”
is not so unclear as to create a patent ambiguity. But the
parties’ use of the south drive easement for utilities at the
time the
that,
easements were created suggests
as in
Keller,
parties’
understanding
“driveway
purposes”
legal meaning.” Keller,
was not limited to its
“common
II. DIVISION ACT2 I respectfully holding dissent from the the LDA grant not courts the power to alter substantive does MCL 560.101 et seq. *15 482 MICH
Opinion by Cavanagh, that reached majority I think that the rights. property I in this case. addressing in this issue holding errs that and that its reasoning its is flawed also think that is too hroad. conclusion necessary I do not think that it is importantly,
Most in The lead this issue this case. for this Court to reach case, did the LDA not “[i]n states that opinion the circuit rights when property create new substantive the central ease- to reflect that plat court altered right utility “[t]his access” because encompasses ment easement since its respect to the central existed with .” Ante at 496. I it is agree. Accordingly, inception... whether, this case as a irrelevant to the outcome of the LDA allows courts to alter general proposition, owners. underlying rights property substantive address this Therefore, this Court does not need to issue.
Nonetheless, it, I tend as I am forced to discuss conclusion that disagree opinion’s the lead LDA intended to enable a court to “[t]he was never right.” establish an otherwise nonexistent Ante at 496. I think that there are some flaws this conclusion is opinion’s reasoning lead too broad. 560.226(1) state that courts
Both MCL 560.221 vacate, correct, Section may plat. or revise recorded 226(1) to this but other- exceptions power, lists several vacate, why wise not when or courts should explain does correct, lead reasons that plat. opinion or revise a vacate, to the courts to grant power the LDA’s correct, power revise a is not a substantive or map, everybody the act defines a as a because automatically does not revise revising map knows rights. Regardless substantive underlying majority on this issue is correct of whether TOMECEK V BAVAS Cavanagh, J. *16 concluding permit that LDA does not courts to alter property rights, reasoning I do not think that its proper question. focused on the question plat The relevant is not whether a is a map; question Legislature rather, the is whether the give power intended to property rights by revising map courts the to alter substantive
a under the circum- given opinion gives stances example case. The lead as an “[i]f map that one ‘revises’ a of the United Michigan encompassing States to show half of the country, it does not make it so.” Ante at 496. This average judge statement sitting is of course true of the McNally maps at home with a book of Rand permanent duly empowered and a But, marker. if a Legislature passed stating a statute that when a court map, revises the boundaries of a that revision has the legal changing effect of the boundaries, then a court’s map revision of a would indeed create a substantive change.3 opinion’s If the lead correct, conclusion is map, reason it is correct cannot be that a revision to a by definition, can never alter substantive rights. disagreeing opinion’s
In addition to with the lead reasoning, opinion’s I tend to think that the lead permits statement that LDA never courts to alter property rights through power vacate, correct, its to or Legislature The act itself demonstrates in some instances plat existing property intended that a rights, not reflect but also legal creating be right. example, the sole basis for For MCL 560.253(1) “every dedication, gift grant states public or to the or any person, society corporation plat or marked or noted as such on the conveyance shall be deemed simple sufficient to vest the fee of all parcels provision LDA, of land so marked . . . .” Under this if a plat dedication, is amended to include a then that amendment creates property right. Words, amending In other the act of also property right. amends a 482 MICH by Opinions Young, JJ. Weaver Instead, I state that would is too broad.4
revise a 560.226(1) Legislature intended MCL 560.221 rights permit some at least to alter courts exhaustively attempt deter- I not circumstances. will power grants to alter LDA courts mine when property rights this case do not the facts of because analyzing present these issues. a suitable basis approach Regardless, to this I this Court’s believe that cautious, nuanced, and case- be more issue should specific opinion. approach the lead taken than the
CONCLUSION Appeals result and Court of the I would affirm the reasoning. lan- I that the easement its think vacate *17 ambiguous guage latently that the circum- and was grantors surrounding writing that the its show stances through property plaintiffs’ utilities to access intended respectfully from easement. I dissent the central drive holding alter LDA enables a court to that the never the rights. property
WEAVER, J.,
J.
Cavanagh,
concurred
with
in
J.
dissenting
in
and
(concurring
pari
WEAVER,
partially
from the lead
I
concur with and dissent
part).
226(1)
example,
§
has stated that
is the exclusive
For
this Court
revise,
vacate,
private
remedy
seeking
a
to
or correct
for landowners
Beldean,
541, 542-543;
Mich
Opinion by Young, J. in opinion’s reasons conclusions the stated Justice dissent, CAVANAGH’s and partial partial concurrence which I join.
YOUNG, (concurring dissenting in in part part). I concur as opinion with Justice KELLY’s insofar it holds the Division give that Land Act does not trial courts the authority rights to alter substantive it declines to address the common-law doctrine of ease by necessity. ments I to express misgivings write her regard disposition grantors to on whether the plaintiffs’ easement give plaintiffs intended to ingress utilities access addition egress. Justice explanation that the intended KELLY’s plaintiffs use their easement manner same used defendants their easement at the time of the (and correct).1 grant plausible quite possibly Never theless, I am not fact convinced that the mere defendants have used their easement for utilities access gives the plaintiffs right separate use their similarly. Because there is insufficient evi grantors’ dence of the concerning actual intent at plaintiffs’ particular easement the time the easement created, I Kelly’s was cannot assent to Justice ultimate result that interprets the easement as plaintiffs’ encom utilities access. I passing respectfully therefore dissent from Justice KELLY’s grantors’ determination of the intent, I although concur with Justice KELLY insofar as interprets she Land Act Division and declines to *18 reach the by common-law doctrine of easements necess ity.2 Rather than affirm result, the Court of Appeals case, Although many are I there nominal defendants in this use the throughout opinion term “defendants” this to refer those defen property in dants who own the O. T. Henkle Subdivision. 2 Because this case came before Court on cross-motions for summary disposition, question grantors’ and because the intent 482 MICH
Opinion by Young, J. summary dispo- motion plaintiffs’ grants which the Berrien this case to instead remand sition, I would for trial. Trial Court County
Corrigan JJ., Young, Markman, concurred remand, necessary point open at this for me to it is not remain on would necessity should be of easement whether the doctrine determine expanded access. to include utilities