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### STATE OF MICHIGAN

COURT OF APPEALS

RICHARD T. BILDSTEIN and CONNIE M. YUSKA,

Plaintiffs-Appellees/CrossAppellants, UNPUBLISHED January 21, 2016

v No. 323094
Van Buren Circuit Court EARL F. HASLER, DIANNE HASLER, WILLIAM F. BENNER, ARTHUR BENNER, ELIZABETH BENNER, RYAN FLAGEL, APRIL MONTEY, TINA REIDY, LORETTA REIDY, JOHN MCNAUGHTON, DANIEL HUGHES, JAMES V. MEERSMAN, JR., MATTHEW THUNELL, MINDY THUNELL, WILLIAM O’MEARA, TRUSTEE, ARTHUR O’MEARA, JASON MCCROREY, MARJORIE BLAYLOCK, WAYNE BLAYLOCK, BOBBY BLAYLOCK, and MICHELLE BLAYLOCK, LC No. 11-060787-CH

Defendants-Appellants/CrossAppellees,
and

DANIEL VIDA, CATHERINE KUTCKA, AUDREY J. SPERLING TRUST, JAMES R. WRIGHT, WILLIAM MORACA, TERESA MORACA, RONALD PAVLIK, ROSARIO PICONE, JR., ROSARIO PICONE, SR., DANIEL VIDA, SUSAN VIDA, JAMES WITTLING, RONALD PAVLIK, KATHERINE PAVLIK, THOMAS WICHLINSKI, PATRICA WICHLINSKI, JEFFERY SCHMAL, AUDREY HUGHES, GRACE HENDRICKSON, DANIEL GREENE, FRANK CICCHETTI, GADO ONGWELA, EDWIN LAMMEL, GIL SNYDER, NANCY SNYDER, RUSSELL CROSS, JR., MARCUS TENNANT, KRISTINE TENNANT, SHARON ROURKE, BARBARA BALDWIN, RANDALL MCMANIGAL, RONALD-2- MCMANIGAL, MICHAEL CONRAD JR., TRUSTEE, NICHOLAS MAROZSAN, DELORES MAROZSAN, THOMAS FOSTER, JANET FOSTER, IRENE MESTACH, DEREK NESTICH, JODI MANEKE, EAA PROPERTIES, L.L.C., STEVE LAVEL LE, LYNN LAVELLE, TERRENCE SALS, THOMAS GANGAS, GEORGE GANGAS, STEPHEN KERESZTESI, MICHAEL BURRAFATO, ALISON BURRAFATO, BIRNEY VANDERBOEGH, JACQUELINE JONKER, MARILYN HERALD, SISTER LAKES, L.L.C., THOMAS HUGHES, HELEN HUGHES, HARRY KOWALSKI, ANGELA KOWALSKI, KAREN KAZMIERZAK, ROGER S OUCY, ELIZABETH SOUCY, and JAMES HOGAN,

Defendants.

Before: B ECKERING , P.J., and G LEICHER and M. J. K ELLY , JJ.

P ER C URIAM

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The parties own lots in the Woodland Beach No. 1 subdivision b ordering Crooked Lake in Van Buren County. Plaintiffs are a married couple who own a lakefront lot that abuts “Woodland Court,” a strip of land that culminates at the lake. Disgruntled by the “partying” of certain backlot owners around a dock extending from Woodland Co urt, plaintiffs filed suit seeking a declaration of everyone ’s interests and an injunction to prevent undesirable activities. Upon competing motions for summary disposition, the circuit cou rt ruled that plaintiffs had littoral rights in their lot, 1 but that a dedication in the plat map gave all backlot owners the right to enjoy Woodland Court and the platted beach along the lakefro nt. The backlot owners’ rights included the right to erect a nonexclusive dock for the tempora ry mooring of boats and to use the beach at Woodland Court for normal beach activity.

Both sides have appealed. The backlot owners contend that the circuit court improperly resolved the matter without the addition of all necessary parti es, i.e., the complete roster of the subdivision property owners. The y also challenge the court’s d ecision to reach certain issues at all, as well as the propriety of the restrictions on their use of Woodland Court. Plaintiffs, on the

1 Technically, land abutting a river includes riparian rights, w hile land abutting a lake includes littoral rights. See 2000 Baum Family Trust v Babel , 488 Mich 136, 138 n 1; 793 NW2d 633 (2010). The parties and the circ uit court referred to plaintif fs’ interests as riparian. We employ the correct description of the se rights in this opinion.-3- other hand, argue that the rest rictions are not broad enough. We affirm the circuit court’s decision to proceed with the matte r despite the absence of seve ral lot owners. We also affirm the court’s rulings in regard to th e parties’ rights to Woodland Co urt. The parties correctly assert that the circuit court should not have defined the parameters o f the beach easement along the lakefront properties, however , and we vacate that part of the j udgment.

I. BACKGROUND

In 1941, the four original owners of a block of land recorded a plat map for the Woodland Beach subdivision on Crooked Lake. The plat dedicated “the str eets and beaches as shown on said plat . . . to the use of persons owning property in said p lat, except the street designated as ‘county road,’ which [was] dedic ated to the use of the public.” The 20-foot-wide Woodland Court, which is perpendicular to and ends at Crooked Lake, bord ers plaintiffs’ lot. On the plat, when Woodland Court reaches Crooked Lake, it turns and becomes a “beach (private)” (the Beach). The Beach sits between a row of six lots, including pl aintiffs’, and Crooked Lake.

Plaintiffs initially filed suit only against Earl and Dianne H asler, challenging their
activities on Woodland Court. The Haslers constructed a long F -shaped dock into Crooked Lake extending from Woodland Court. The y moored a boat at the dock for extended periods. And the Haslers, along with a bevy of guests, spent the summer lounging and picnicking on the dock, engaging in water activities, and generally “partying” accordin g to plaintiffs. In their March 25, 2011 “complaint to determine interest in land,” plaintiffs desc ribed Woodland Court and the
Beach and indicated that these we re dedicated to the use of all lot owners. Plaintiffs asserted, however, that the Haslers’ “activities in front of Plaintiffs’ lot and on Woodland Court exceed the scope of their dedicated rights,” and that this overreachin g had impaired the use and enjoyment of plaintiffs’ littoral rights. Plaintiffs sought a declaration that the dedication did not include the right to erect a pier or to moor watercraft at the end of Woodland Court and that as littoral owners, plaintiffs posse ssed the rights accompanying t hat interest. Plaintiffs also sought an injunction preventing the Haslers from exceeding the scope o f the dedication in the future.

The Haslers retorted that all lot owners within the subdivisio n were necessary parties to the action because plaintiffs sought to define the rights of al l. After some negotiation, plaintiffs agreed to amend their complaint and began the Herculean effort of serving every lot owner. Ultimately, service could not be accomplished as to approximate ly 20 lot owners and the court dismissed plaintiffs’ claims aga inst those parties. Many other defendants declined to respond and default judgments were enter ed against them. Only the smal l group of defendants-appellants remained. The Haslers again soug ht to dismiss the suit based o n the dismissal of certain defendants for lack of service, but the court denied the reques t. As plaintiffs were seeking to enjoin certain individuals from engaging in uses beyond the sco pe of the dedication, rather than to amend the plat or exert title over the dedicated areas, the court determined that those parties who were actually necessary were then before the court.

Plaintiffs and remaining defendants subsequently filed competi ng motions for summary disposition, each believing the law was on their side in defini ng the scope of their interests. In a confusing and sometimes contradi ctory order, the circuit court denied the motions on March 5, 2014. Following the transfer of the matter to a different judg e, plaintiffs sought reconsideration
and the court decided to rehear the matter. The circuit court partially granted each side’s motion-4- on July 17, 2014. The circuit court held that all subdivision owners had the following rights to Woodland Court and the beach at its terminus: (1) to install on e nonexclusive dock; (2) to temporarily moor boats to the dock, but not overnight; (3) to u se Woodland Court as it extends into Crooked Lake for fishing, swimming, boating, and other inc idental purposes; and (4) to use the beach on Woodland Court for regular beach activities. The court also held that plaintiffs’ lot
was littoral and that the lot owners had an easement to use the Beach in front of plaintiffs’ lot for ingress and egress to Crooked Lake.

II. NECESSARY PARTIES

Defendants continue to argue tha t the circuit court should hav e dismissed the action in its entirety because plaintiffs failed to effectuate service on eac h lot owner within the subdivision. We review a circuit court’s decision regarding joinder for an a buse of discretion. Mason Co v Dep’t of Community Health , 293 Mich App 462, 489; 820 NW2d 192 (2011).

MCR 2.205(A) provides that “persons having such interests in t he subject matter of an action that their presence in the action is essential to permit the court to render complete relief must be made parties and aligned as plaintiffs or defendants[.] ” When such persons have not been made parties and are subjec t to the jurisdi ction of the co urt, the court shall order a summons for their appearance. MCR 2.205(B). The purpose of MCR 2.205( A) is “to prevent the splitting of causes of action and to ensure that all parties having a rea l interest in the litigation are present.” Mason Co , 293 Mich App at 489

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In their amended complaint, plaintiffs alleged that “[s]ome or all defendants” had “constructed piers that extend into Crooked Lake from Woodland Court and from the beach area on or near” their lot. They also alleged that “[s]ome or all d efendants” had moored boats to the piers and “engaged in sunbathi ng, partying, swimming, picnickin g, and other beach activities at the end of Woodland Court and on or near” their lot. According to plaintiffs, these activities exceeded the scope of the dedication for Woodland Court. In th eir amended complaint, plaintiffs
asked the court to declare the r ights of defendants regarding W oodland Court, including that defendants did not have a right to erect a pier and moor waterc raft at the end of Woodland Court, and to grant injunctive relief, including requiring defendants to remove the dock and forbidding defendants from placing additiona l docks into Crooked Lake and from mooring boats. Essentially, plaintiffs wanted a judgment that prohibited defen dants from engaging in activities that they believed were beyond the scope of the dedication. Th ere is no claim that any of the dismissed defendants engaged in any of the alleged prohibited a ctivities. The individuals who had purportedly engaged in the s ubject activities had been serv ed with process, submitted to the circuit court’s jurisdiction, a nd would be subject to any judgm ent of the court. See MCR 3.114(H). Therefore, the circuit court could render complete r elief to plaintiffs, and acted within its discretion in denying defenda nts’ motion to dismiss.

III. LITTORAL RIGHTS A ND BEACH DEDICATION

Defendants assert that the circuit court should not have resol ved whether plaintiffs possessed littoral rights or determined the scope of the dedica tion of the Beach as those issues had no bearing on the use of Woodland Court, the only real issu e in the case according to
defendants. Plaintiffs concede in their responsive brief to de fendants’ appeal that the circuit-5- court should not have defined the scope of the Beach easement. Indeed, beyond the cursory allegations regarding the Beach in plaintiffs’ complaint, plain tiffs made no argument in this regard. Absent an “actual contr oversy” over the use of the Bea ch, MCR 2.605(A)(1), we vacate that portion of the c ircuit court order. 2

However, we discern no reversib le error in the circuit court’s decision to elucidate plaintiffs’ property interest. I n order to define the parties’ interests in Woodland Court, the circuit court was first required to identify the parties’ inter ests in their own lots and the subdivision. Moreover, plaintiffs are littoral owners. Plaintiffs own a lot separated from the lake only by a strip of land dedicated to all lot owners as a b each. Michigan courts have repeatedly held that such dedications and easements do not cut off the waterfront owner’s littoral rights. See Thies v Howland , 424 Mich 282, 293; 380 NW2d 463 (1986). See also 2000 Baum Family Trust , 488 Mich at 167-168. Accordingly , we discern no error meriti ng relief.

IV. SCOPE OF WOODLAND COURT DEDICATION

Neither party was satisfied with the circuit court’s descripti on of defendants’ rights to use and enjoy Woodland Co urt. Defendants argue that the circuit co urt improperly limited the length of time they may moor boats to the nonexclusive dock. Plaintif fs complain that defendants should have no right to insta ll, maintain, or use any dock.

Plaintiffs sought summary disposition under MCR 2.116(C)(9) an d (10), and defendants under MCR 2.116(I)(2). As a motion based on MCR 2.116(C)(9) (f ailure to present a viable defense) is dependent on the pleadings alone, Glass v Goeckel , 473 Mich 667, 677; 703 NW2d 58 (2005), and the court considered the evidence presented by t he parties, we consider the motion as granted under MCR 2.116(C)(10).

We review a trial court’s decisi on on a motion for summary dis position de

novo. . . .

A motion under MCR 2.116(C)(10) t ests the factual support of a plaintiff’s claim. Summary disposition is appropriate under MCR 2.116(C)(1 0) if there is no genuine issue regarding any mate rial fact and the moving party is entitled to judgment as a matter of law. In reviewing a motion under MCR 2 .116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to t he nonmoving party to determine whether any genuine issue of material fact e xists to warrant a trial. A genuine issue of material fact exists when the record , giving benefit of reasonable doubt to the opposing party, leaves open an issue up on which reasonable minds might differ. [ Zaher v Miotke , 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotation mar ks and citations omitted).]

2 As the circuit court should not have reached this issue, we ne ed not consider defendants’ alternate challenges to the substance of the order.-6- The Woodland Beach subdivision was platted before the Land D ivision Act, MCL 560.101 et seq., took effect in 1968. Martin v Beldean , 469 Mich 541, 547; 677 NW2d 312 (2004). “[D]edications of land for private use in plats before [the Land Division Act] took effect convey at least an irrevocable easement in the dedicated land.” Little v Hirschman , 469 Mich 553, 564; 677 NW2d 319 (2004). “[A] purchaser of platted lands receives not only the interest described in the deed, but also whatever rights are reserved to the lot owners in the plat.” Id. at 561. 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 K ELLY , J); id. at 499 (C AVANAGH , J., concurring in part and diss enting in part). When the lan guage of a legal instrument is plain and unambiguous, it is to be enforced as wr itten and no further inquiry is permitted. Little v Kin , 468 Mich 699, 700; 664 NW2d 749 (2003); Dyball v Lennox , 260 Mich App 698, 704; 680 NW2d 522 (2004). Only if the language is una mbiguous may extrinsic evidence be considered to determine the plattor’s intent. Little , 468 Mich at 700; Dyball , 260
Mich at 704.

Here, the plat simply states: “[T]he streets and beaches as sh own on [the] plat are hereby dedicated to the use of persons o wning property in said plat.” The plat does not define “use.” The scope of the “use” can be d etermined, however, by looking t o the legal understanding of that term in relation to roadways te rminating at the waterfront.

First, caselaw supports the circu it court’s conclusion that de fendants could install a
nonexclusive dock into Crooked Lake from Woodland Court. It wa s long settled before the current plat was created that when a road that ends at the wate r is dedicated to public use, a public agency may construct a dock for public use. See Backus v Detroit , 49 Mich 110, 120; 13 NW 380 (1882). As described in Thies , 424 Mich at 296, the right to construct a dock is not dependent on the public owning the roadway in fee. “Rather, it is based upon the presumption that the plattor intended to give access to the water and permi t the building of structures to aid in
that access.” Id. The only limit is that “[a]ny dock which is constructed at th e end of a common way must be made available for the use of those to whom the way is dedicated.” Id. In Thies

, the Supreme Court noted that the result should be no different when the roadway (and therefore the dock) are dedicated to the use of subdivision lot owners. Id. Accordingly, neither party’s challenge to this portion of the court’s order has merit.

Second, defendants complain that their right to moor boats sho uld not be limited to temporary use. One stick in the bundle of littoral and riparia n rights is the right “to permanently
anchor boats off the shore.” 2000 Baum Family Trust , 488 Mich at 166. See also Thies , 424 Mich at 288; Hall v Wantz , 336 Mich 112, 117; 57 NW2d 462 (1953). However, “[a]n incide nt of the public’s right of navigati on is the right to anchor boat s temporarily .” Thies , 424 Mich at 288 (emphasis added). See also Delaney v Pond , 350 Mich 685, 688; 86 NW2d 816 (1957). Defendants are not littoral owners, they are backlot owners wit h a right to access the water through land dedicated for that purpose on the plat map. Absen t littoral rights, defendants have no ground to assert a right to moor boats on the lake for any e xtended period of time. It was within the circuit court’s purview to determine what constitute d “temporary mooring” and we
discern no error in t he overnight restr iction defined by that c ourt.

Third, we also discern no error in the circuit court’s determi nation that defendants could use the dock for fishing, swimming, and boating, and that porti on of the beach on Woodland-7- Court for regular beach activities. In Thies , 424 Mich at 288, the Supreme Court noted, “Nonriparian owners and members of the public who gain access t o a navigable waterbody have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming.” We see no reason the same should not be true where a dedicated roadway ends at the water. Compare Delaney , 350 Mich 686-687 (notin g that where the backlot owners enjoyed a 10-foot easement along a riverfront pier which was specifically limited as an access point , the backlot owners could not use the pier for fishing and swi mming without committing a trespass). Here, there was no such specific limit ation on the use of Woodland Court or the water’s edge. Acco rdingly, within the confines of Woodland Court and the dock extending from its terminus, the circuit court correctly determ ined that defendants could engage
in normal beach and dock activities. 3

We affirm in part and vacate i n part. We do not retain jurisd iction.

/s/ Jane M. Beckering
/s/ Elizabeth L. Gleicher /s/ Michael J. Kelly

3 Given these conclusions, we need not address defendants’ alter nate argument that they had obtained a prescriptive easement to maintain a dock.