141 N.W.2d 717 | Mich. Ct. App. | 1966
WINIECKE
v.
SCHEURER.
Michigan Court of Appeals.
Robert E. Childs, for plaintiffs.
Werner Clabuesch and Rothe, Marston, Mazey, Sachs & O'Connell (D. Charles Marston, of counsel), for defendants.
QUINN, J.
Plaintiffs filed this action in Huron county circuit court to obtain injunctive and other relief. Trial resulted in judgment for defendants; motion for new trial was denied and plaintiffs appeal. The 3 questions raised on appeal are as follows:
1. Are the declarations made by two of several owners of real estate as tenants in common binding upon the other cotenants?
2. Did the circuit court err in holding that plaintiffs were purchasers of "channel lots"?
3. Are plaintiff owners entitled to an unobstructed view of Wild Fowl Bay?
October 2, 1954, the owners recorded the plat of Island View subdivision located in Caseville township, Huron county, Michigan. Defendants Scheurer and Rothe were among the owners. In the process of developing and platting this subdivision, the owners had dug a channel on land retained by them *180 and lying between the subdivision and Wild Fowl Bay. By the end of July, 1954, the channel was completed in front of and for a considerable distance on both sides of lot 2 of said subdivision. June 22, 1954, plaintiffs made a deposit of $600 on lot 2 and received a preliminary sales agreement signed by defendants Clare A. Scheurer and Nicholas J. Rothe (exhibit 2). By land contract dated January 5, 1955, plaintiffs contracted to purchase said lot 2. The copy of this contract offered and received in evidence at trial as defendants' exhibit 2 contained the following:
"The sellers agree as follows: to sell * * *. Subject to restrictions and reservations of record and as hereinafter set forth."
and had attached to it a statement of restrictions which contained the following:
"The grantors expressly reserve the right to maintain, improve, and extend all roads, drives, and channels over and across any lots retained by them on this plat and any other undeveloped land owned by them. * * *
"That the owners of lots fronting on channel shall have exclusive use of the land lying between their lot line and channel, providing however, that the grantors, their successors, heirs, and assigns reserve the right to maintain and improve said channel as hereinafter provided. No structure of any kind shall be erected or moved onto the land lying between lot line and channel and said land shall be kept clean at all times."
A declaration of plat restrictions with identical language to that just quoted was recorded December 1, 1955, in liber 235 of deeds, page 586. By deed dated November 4, 1955, and recorded December 9, 1955, plaintiffs took title to lot 2 subject to "This deed is given subject to reservations, conditions, and *181 restrictions recorded in liber 235 of deeds, page 586." Plaintiffs built a permanent home on lot 2 and moved into it in 1956. In 1963, defendants had further work done on the channel that runs in front of plaintiffs' property and increased the height and width of the spoil bank on the bay side of the channel to the extent that plaintiffs contend it cuts off their view of the bay. Claiming that lot 2 extended to the water's edge of Wild Fowl Bay, plaintiffs brought this action on the theory that this obstruction of view violated their littoral rights, and that such violation entitled them to have the offending bank removed.
Prior to GCR 1963, plaintiffs' action would have been in chancery, so the appeal is heard de novo, but great weight is to be given to the findings of fact by the trial judge. Resh v. Fox (1961), 365 Mich. 288. Unless a reading of the entire record convinces this Court that it would have reached a different result, reversal is not in order. Resh, supra. The trial court found that plaintiffs knowingly purchased a channel lot and that no riparian or littoral rights were involved. A review of the record convinces us that no other finding was possible.
The trial court ruled inadmissible plaintiffs' exhibit 2, the preliminary sales agreement signed by Clare A. Scheurer and Nicholas J. Rothe. At the time exhibit 2 was given, there were 5 owners of this property, each with an undivided interest. Exhibit 2 recited that plaintiffs agreed to purchase from Rothe, Goodman, Armitage, Schram, and Scheurer. No written authorization for Rothe and Scheurer to sign for the others was shown. Exhibit 2 was void under CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908). It did not bind the parties not signing it; it was not dated and contained a faulty description. The trial court was correct in not admitting exhibit 2.
*182 Finally, plaintiffs contend 2 of the defendants orally agreed to remove the offending bank and that this agreement is binding on all defendants. The record does not sustain a finding that such an agreement was made, and if it did, there is no showing of a basis for holding such an agreement was binding on all defendants.
Affirmed, with costs to defendants.
McGREGOR, P.J., and HOLBROOK, J., concurred.
