Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman
FILED DECEMBER 30, 2008 FRANK J. TOMECEK, JR., and JANIS H. TOMECEK, Plaintiffs-Appellees,

v No. 134665 ANDREW LUCIAN BAVAS, JOYCE BAVAS, INEZ HILDEGARD BAVAS, STANLEY FRANCIS STASCH, JULIA STASCH, MARTHA STASCH, PATRICIA M. CURTNER, TIMO THY V. McGREE, PETER A. STRATIGOS, ALICE M. STRATIGOS, PAMELA KRUEGER, DEVEREAUX BOWLY, JR., DAVID N. DERBYSHIRE, ELLEN R. L A FOUNTAIN, JONATHAN RODGERS, ROYAL KENNEDY RODGERS, LEE STAHL, III, and SUSAN STAHL, Defendants-Appellants, and
INDIANA MICHIGAN POWER COMPANY, doing busi ness as AMERICAN ELECTRIC POWER COMPANY, INC., MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH, and BERRIEN COUNTY DRAIN COMMISSIONER,Defendants-Appellees, and DANIEL JOHNSON, SCOTT LOESS, KATHLEEN LOESS, JANE HENKLE, RICHARD CRAGG, LOIS ZYER, ARTHUR C. MERTZ REVOCABLE TRUST, PETER LEVY, BENITA LEVY, LAKESIDE PROPERTY OWNERS, CHIKAMING TOWNSHIP, ROBERT FORKER, JR., NEW BUFFALO SAVINGS BANK FIFTH THIRD BANK, SHORELINE BANK, SEMCO ENERGY, INC., SEMCO ENERGY GAS COMPANY, SBC AMERITECH CORPORATION, MICH AEL L. JONES, LAURA L. AVERY, and JULIA E. PIETRAS, Defendants.

BEFORE THE ENTIRE BENCH KELLY, J. This case involves real prop erty to which plaintiffs seek an easement for the purpose of connecting to a c ity sewer across the lo ts of their neighbors. The issues are (1) whether the Land Division Act (LDA) 1 can be used to create substantive property rights, such as a utility easement, (2 ) whether an easem ent by necessity for utilities should be allowed in this case, and (3) whether the restrictive covenant that runs with the land in qu estion bars the easement. The Court of Appeals held that the LDA provides for substantive changes to property rights and gives th e trial court the authority to revise the plat to allow a

1 MCL 560.101 et seq.

2utility easement. It also concluded that an easement by necess ity for utilities could appropriately be created in this case and that the restrictive co venant does not bar the easement. We affirm the result of the Court of Ap peals opinion and conclude that the original grantors intende d to allow utility access to the Tomeceks’ property through the central drive easement. We agree that the restrictive covenant does not bar the easement. Howe ver, we reverse the Court of Appeals holding that the LDA can alter substantive pr operty rights. Finally, it was unnecessary for the Court of Appeals to address wheth er an easement by necessity should be recognized in Mich igan and applied in this case. Therefore, we affirm the Court of Appeals opinion in part, reverse it in part, and v acate it in part.
F ACTS Plaintiffs Frank and Janis Tomecek own property in the O.T. Henkle subdivision along Lake Michig an in Berrien County. Th ey wish to build a house on their property (Lot 2). 2 Defendants claim that a res trictive covenant that runs with the plat prevents plaintiffs from erecting a building on Lo t 2. The covenant states that a house cannot be built on Lot 2 “unless and until a municipal sanitary sewer line is made availabl e to the premises.”

2 Plaintiffs’ property is shown as “2” on the map at the end of this opinion.

3Because Lot 2 is la ndlocked, plaintiffs have an easement 3 (the central easement) over Lots 1 and 3 through which they access their property from Lake Shore Road. Plaintiffs cl aim that they are entitled to use the central easement to gain access to the municipal sewer line. A familiarity with the hist ory of the O.T. Henkle su bdivision is helpful in understanding this case. In the early 1 920s, O.T. Henkle acquired approximately five acres of land on Lake Michigan in Chikaming Township, Berrien County. The property passed from O.T. Henkle to C.W. Henkle, Gladys Farclough, and Jane H. Henkle (collec tively referred to as “the original grantors”). 4 In 1967, the original grantors conveyed what is now Lot 1 to one of the defendants, reserving an easement for the benefit of Lot 2. The easement runs fro m Lake Shore Road along the southern boundary of Lot 1. 5 Over the next few years, the original grantors sold Lots 3, 4, and 5, all subject to an easement running along th e southern portion of the property (“the south drive easement”). 6 Lots 3 and 4 were also subject to the central drive

3 The easement is shown on the low er center of the diagram appended to this opinion and runs from La ke Shore Road to Lot 2.

4 Jane Henkle is the mother of plaintiff Janis Tomecek.

5 The easement is located on the central easemen t on the map, where the word “Drive” is printed.

6 The easement is labeled “Drive Ease ment” and shown on the left side of the map.

4easement. 7 In 1975, the plat wa s recorded in the county records. At the time of platting, Lots 3, 4, and 5 used th e south drive easem ent for utilities access 8 and for right-of-way access. Also, in 1975, the original grantors recorded a restrictive covenant prohibiting the co nstruction of a building on Lot 2 until a municipal sanitary sewer service was made available to the premises. 9 Thus, when the property was platted in 1975, both th e central and south easements were identically identified as “drive easement” on the plat, and the south easement already had utilities on it. In 1976, the original grantors conveyed Lot 2 to plaintiffs. When plaintiffs bought Lot 2, the original grantors prov ided them with a d rawing showing a good spot to build a home on the lot. 10
P ROCEDURAL H ISTORY In 2001, plaintiffs requested a variance from the Ch ikaming Township Zoning Board of Appeals to construct a home on their lot. When the board granted the variance, defenda nts appealed, claiming that the restrictive covenant

7 The left half of the central easemen t, where the word “E asement” appears on the map.

8 The south easement provided Lots 3, 4, and 5 with telephone and electrical access.

9 Plaintiffs and defendants disagree ab out the meaning of “premises” in the restrictive covenant. Plainti ffs contend “premises” refers to the subdivision as a whole, whereas defendants claim it refers exclusively to Lot 2.

10 In 1969, before plaintiffs acquired the property, the original grantors gave them another drawing showing a desi rable location for a home on Lot 2.

5prevented plaintiffs from bu ilding a home because they di d not have sewer access. The trial court granted summary disposition to plaintiffs, ruling that the original grantors intended to allow plaintiffs to build a home on Lot 2. The trial court observed that defendants ha d already run utility lines on the south easement, and plaintiffs deserved to do the same with their cent ral easement. A divided Cour t of Appeals panel affirmed th e trial court’s decision in a published opinion. 11 It held that the LDA 12 empowered the trial court to revise the plat to include utilities in the central ease ment. The LDA, it c oncluded, permits a trial court to do more than merely correct errors; it may alter a plat to affect underlying substantive propert y rights. The Court of Ap peals held, in addition, that plaintiffs were enti tled to an easement by n ecessity for utilities.
S TANDARD OF REVIEW We review de novo a trial cour t’s decision on a motion for summary disposition. 13 The extent of a party’s rights un der an easement is a question of fact, and a trial court’s determination of the facts is reviewed for clear error. 14 The

11 Tomecek v Bavas, 276 Mich App 252; 740 NW2d 323 (2007).

12 The LDA allows a trial court to v acate, correct, or revise a plat. MCL 560.226(1).

13 Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).

14 Id.

6proper interpretation and application of a st atute presents a question of law that we consider de novo. 15

T HE C ENTRAL E ASEMENT I NCLUDED U TILITY A CCESS AT THE T IME OF P LATTING We must determine if the central easement running from Lake Shore Road to Lot 2 includes utility access, or if its use is strictly limited to ingress and egress. Under well-established Michigan law, “[t]h e use of an easement must be confined strictly to the purpo ses for which it was granted or reserved.” 16 Exacting “magic words” are not required on a plat to create an easement. 17 When interpreting deeds and plats, Michigan courts seek to effectuate the intent of those who created them. 18 Plaintiffs assert that, wh en the original grantors platted the subdivision, they assumed that both the south easement and the central easement included access for utilities. Defendants assert the contrary and add that Lot 2 was always intended to remain vacant. It is undisputed that the central a nd south easements are identically labeled “drive easement” on the plat. At the tim e of platting, the central easement was

15 Eggleston v Bio-Medical Applic ations of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).

16 Delaney v Pond , 350 Mich 685, 687; 86 NW2d 816 (1957).

17 See Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339 (2001).

18 See Curran v Maple Island Resort Ass’n, 308 Mich 672, 679-681; 14 NW2d 655 (1944).

7used only for ingress and egress to Lot 2; there were no utilities on the easement. However, the south easement was used both as a drivew ay and for telephone and electrical lines to Lots 3, 4, and 5. We find a strong inferen ce that the words “drive easement” on the central easement were intended to have the same meaning as “drive easement” on the south easement. We conclude that the or iginal grantors woul d have labeled the easements differently had they intended to allow utilities on the south easement, but not on the central easem ent. And we conclude th at the original grantors intended the central a nd south easements to have th e same scope: both road access for ingress and egre ss and utility access. As early as 1883, Michigan courts recognized that a party using a right-of

way for a particular purpose cannot preven t a subsequent party from making the same use of the property. In Bell v Todd, the plaintiffs so ught to enjoin the defendant from blocking access to a road th at was platted but never constructed. 19 Plaintiff Bell had previously blocked unbui lt roads in the same plat. The Court dismissed the case, stating: [I]t also appears that Railroad street south of South street is enclosed and occupied by Bell himself, so that he is doing in his own individual interest in respect to th is very street precisely what he seeks to enjoin defendant from doing. It woul d be preposterous to grant the relief pray ed for on his application under such circumstances. [20]

19 Bell v Todd, 51 Mich 21; 16 NW 304 (1883).

20 Id. at 28.

8Although two streets, not one, are involved here, we believe Bell is instructive. Defendants use their “drive easement” for utilities a nd seek to prevent plaintiffs from using their “drive easement” for the same purpose. In the words of Justice Cooley in Bell , to allow such a result would be “preposterous.” It is apparent, also, that the grantors envisioned that a house would be built on Lot 2 and, by extension, that the central easement w ould include utilities. This may be gleaned from two drawings by C.W. Henkel, one of the or iginal grantors. The first was made in 1969, six years befo re the subdivision was platted. It shows Lot 2 and the adjacent lot to the east, Lot 1. On Lot 2 is a rectangle with the words “possible house location and dimensions.” The central easement is shown on the drawing.
C.W. Henkle made a second drawin g in 1978, three years after the subdivision and easements were platted. Li ke his first drawing, it shows a location on Lot 2 where plaintiffs coul d build a home. The cent ral easement is visible on the drawing. It is significant that 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 a sewer line. He knew , also, that the central easement was the only likely route to provi de that access. Taken together, these drawings provide further evid ence of intent that the central drive easement should include utilities.

9Finally, contrary to the defendants’ cl aim, the wording of the restrictive covenant shows that the orig inal grantors always intend ed that a ho use could be built on Lot 2. When attempting to disc ern the parties’ intent, we construe together contemporaneous documents relating to the same transaction. 21 The restrictive covenant on Lo t 2 was executed contemporan eously with the plat; therefore, it is relevant in discerning the parties’ intent at the time. It does not make sense that the orig inal grantors woul d have inserted language regarding a sewer in the restric tive covenant had they intended that no building ever be placed on Lot 2. If th ey had really intended to forever prevent building on Lot 2, they would have simply covenanted that no building ever be put there. The reference to a sewer makes sense, however, if the grantors’ intent was to eventually allo w a building on Lot 2. This b ecomes readily app arent when the geographical limitations of the plat are cons idered. The plat is approximately five acres in size. Only the eastern half is suitable for housing b ecause a bluff runs along the middle of the prop erty, descending to the b each and Lake Michigan. Therefore, the five lots suitabl e for residences adjo in each other on roughly the 2.5 easternmost acres of land.

21 Interstate Constr Co v United St ates Fidelity & Guaranty Co, 207 Mich 265, 274; 174 NW 173 (1919).

10In 1975, when the subdivision was platted and the restrictive covenant was written, none of the lots had access to a municipal sewer system. Septic tanks 22 were the only plausible alt ernative for waste management on the lots. However, because of concerns ov er numerous septic sy stems and leach fields 23 in the relatively small area, a septic system was not an option for every lot. Cognizant of this problem, the or iginal grantors likely enacted the restrictive covenant to prev ent construction of a house on Lot 2 until municipal sewer service became available to it. He nce, the restrictive covenant prevented overloading the small area of land with se ptic waste. When a municipal sewer system became available to the plat in the late 1970s, the condition in the restrictive covenant was satisf ied. The restrictive covena nt had served its purpose.

22 A septic tank is a small-scale sewa ge treatment system common in rural areas where there is no access to a municipa l sewer line. Wastewater enters the septic tank from a connected residence, and solids settle to the bottom. The remaining water flows out of the tank and is absorbed into the soil, which usually filters out the remaining impurities in the water. However, there must be adequate soil area to handle the wast ewater coming from the tank or the surrounding area will be damaged. This is especially likely when se ptic tanks are located on property near a body of water, (like the property in this case that borders Lake Michigan) because the sandy soil can easily become saturated with chemicals. This pollutes the su rrounding area and surface water, cau sing serious harm to fish, plants, and other wildlife. See Craig G. Cogger, Septic System Waste Treatment in Soil, < http://cru.cahe.wsu.edu/CEPub lications/eb1475/eb1475.html> , accessed December 12, 2008; see also Septic Systems for Waste Water Disposal, available at

< http://www.agwt. org/info/septicsystems.html> , accessed December 12, 2008.

23 A leach field is the area of land wh ere the wastewater from a septic tank is deposited.

11From this we conclude that it was the intent of the origin al grantors that a house could be built on Lot 2 when a municipal sewer became available. We conclude also that the central “drive eas ement” was intended, like the south “drive easement,” to provide access to the sewer a nd other utilities.
E FFECT OF THE R ESTRICTIVE C OVENANT Defendants maintain that the restric tive covenant of 1974 intended to prohibit any building on the pr operty until the end of time. They argue that the plain language of the restrict ive covenant reflects this. The restrictive covenant states, “It is hereby covenanted and agreed that no building, structure or dwelling shall be cons tructed on Lot 2 of said plat unless and until a municipal sewer line is made available to the premises.” Defendants claim that the covenant proh ibits building a home on Lot 2 until the own ers of Lots 1, 3, and 4, explicitly grant permission to create an easement for municipal sewer service. This interpretation is not reflected in th e words of the covenant. As the trial court pointed out: A plain reading of this restriction contradicts Defendant’s [sic] argument: if the grantors wanted to forever preclude any construction on Lot 2, the restricti on would have stated as much in explicit language by ending the pr ovision after the word “plat” [so that it read “[t]hat it is here by covenanted an d agreed that no building, structure or dwelling shall be constructed on Lot 2 of said plat”]. Defendants’ argument in this regard must therefore fail. The restrictive covenant merely preven ted construction on Lot 2 until sewer service became availa ble to that lot.

12T HE LDA C ANNOT A LTER S UBSTANTIVE P ROPERTY R IGHTS The LDA provides a pr ocess for surveying a nd marking subdivided property. Property information is compiled on a plat that is then recorded with the local municipality. The LDA allows a ci rcuit court to vacate, correct, or revise a recorded plat. 24 Defendants argue thatthe LDA permits a cour t to alter a plat map only to properly reflect exis ting property rights; it can not affect the substantive rights of the underlying property owners. When construing the LDA, we are mindf ul that our primary goal is to ascertain and give effect to the Legislature’s intent. 25 When determining intent, we consider first the language of a statute. 26 The LDA allows a court to “order a recorded plat or any part of it to be vacated, co rrected, or revised . . . .” 27 “Plat” is defined in the act as “a map or chart of a subdivision of land.” 28 The LDA defines a plat as a map. A plat is a des cription of the physical property interests on a particular area of land. A map, by itself, is not a determination of substantive property in terests. If one “revises” a map of the United States to show Mich igan encompassing half of the country, it does not make it so. The LDA was never intended to enable a court to establish an

24 MCL 560.221.

25 Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).

26 Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998).

27 MCL 560.226(1).

28 MCL 560.102(a).

13otherwise nonexistent property right. Rather , the act allows a c ourt to alter a plat to reflect property rights al ready in existence. In this case, the LDA did not create ne w substantive property rights when the circuit court altered the plat to reflect that the cen tral easement encompasses utility access. This right ex isted with respect to the central easement since its inception, when the original grantors record ed the central easem ent intending it to include utilities. The trial court merely used the LDA as th e tool to validate property rights that already existed.
C ONCLUSION In 1975, when the O.T. He nkle subdivision was platte d, it was the intent of the grantors that th e central easement could includ e utilities. This holding is supported by the fact that, on the plat, th e central easement and the south easement are both labeled the same. It is undisputed that the south easement was a driveway and had utilities at the time of platting. The language of the restrictive covenant that runs with the plat su pports this holding. The co venant prevented a house from being built on Lot 2 until a muni cipal sewer system could be made available to the lot. Hence, once a sewer line became available, the co venant allowed a house to be built on Lot 2. Therefore, we affirm the Court of A ppeals judgment. However, we reverse its holding concerning the LDA. The LDA cannot be used to create substantive property rights. Regarding the Court of Appeals dicta creating an easement by necessity for u tilities, we decline to a ddress whether such an easement is available in Mi chigan, it being unnecessary to resolve the case. The

14result reached by the C ourt of Appeals is affirmed on th e basis of the intent of the grantors.

Marilyn Kelly Clifford W. Taylor

1516v S T A T E O F M I C H I G A N SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H. TOMECEK, Plaintiffs-Appellees,
No. 134665 ANDREW LUCIAN BAVAS, JOYCE BAVAS, INEZ HILDEGARD BAVAS, STANLEY FRANCIS STASCH, JULIA STASCH, MARTHA STASCH, PATRICIA M. CURTNER, TIMO THY V. McGREE, PETER A. STRATIGOS, ALICE M. STRATIGOS, PAMELA KRUEGER, DEVEREAUX BOWLY, JR., DAVID N. DERBYSHIRE, ELLEN R. L A FOUNTAIN, JONATHAN RODGERS, ROYAL KENNEDY RODGERS, LEE STAHL, III, and SUSAN STAHL, Defendants-Appellants, and
INDIANA MICHIGAN POWER COMPANY, doing busi ness as AMERICAN ELECTRIC POWER COMPANY, INC., MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH, and BERRIEN COUNTY DRAIN COMMISSIONER, Defendants-Appellees, and DANIEL JOHNSON, SCOTT LOESS, KATHLEEN LOESS, JANE HENKLE, RICHARD CRAGG, LOIS ZYER, ARTHUR C. MERTZ REVOCABLE TRUST, PETERLEVY, BENITA LEVY, LAKESIDE PROPERTY OWNERS, CHIKAMING TOWNSHIP, ROBERT FORKER, JR., NEW BUFFALO SAVINGS BANK FIFTH THIRD BANK, SHORELINE BANK, SEMCO ENERGY, INC., SEMCO ENERGY GAS COMPANY, SBC AMERITECH CORPORATION, MICH AEL L. JONES, LAURA L. AVERY, and JULIA E. PIETRAS, Defendants.

CAVANAGH, J. ( concurring in part and dissenting in part ). I concur with the result of the lead opinion because I agree that plaintiffs’ request for relief should be granted. I write separately to clarify my view that the circumstances surrounding the easement’s cr eation show that it contains a latent ambiguity and that the or iginal grantors intended to allow utility access to plaintiffs’ property through the central drive easement. I respectfully dissent, however, from the lead opinion’s holding that the Land Division Act (LDA) does not grant courts the power to alt er substantive property rights.
I. INTENT OF THE ORIGINAL GRANTORS I concur with the lead opinion’s conclusion that the original grantors intended plaintiffs’ propert y to have access to utilities through the central drive easement, and I would grant pl aintiffs’ request for relief. 1 I also concur with the

1 This holding applies to the southern half of the central drive easement. The northern half of the central drive eas ement was reserved before platting, and with language distinct from the language used in the south drive easement.

2lead opinion’s conclusion that the restrictive covenant do es not bar plaintiffs from building on their property. As the lead opinion noted , the cardinal rule of in terpreting deeds and plats is to effectuate the inte nt of the parties. Ante at 7. To effectuate this rule, in light of the principle of freedom of contract, this Court has gen erally observed that “[i]f the language of a contract is clear and unambiguous, it is to be construed according to its plain sens e and meaning . . . .” City of Grosse Pointe Park v Michigan Muni Liab ility & Prop Pool , 473 Mich 188, 19 7-198; 702 NW2d 106 (2005) (internal citation and quotation marks omitted). Where a contract is ambiguous, however, this Court may us e extrinsic evidence to determine the intent of the parties. Id. at 198. Extrinsic evidence may sometim es also be used to de tect an ambiguity in a contract, depending on whether the am biguity is latent or patent. Id. A patent ambiguity “‘clearly appears on the face of a document, arising from the language itself.’” Id. , quoting Black’s Law Dictionary (7 th ed). Extrin sic evidence is generally not necessary to detect a patent ambiguity. In contrast, a latent ambiguity “‘does not readily appear in the language of a document, but instead arises from a collateral matter when th e document’s terms are applied or executed.’” Id. Where there is a latent ambi guity, extrinsic evidence may be used not only to resolve the ambiguity, but also to prove the existence of the latent ambiguity. Grosse Pointe Park, 473 Mich at 198. See also McCarty v Mercury Metalcraft Co , 372 Mich 567, 575; 127 NW2d 340 (1964); Ives v

3Kimball , 1 Mich 308, 31 3 (1849). In Ives , after explaining that a latent ambiguity may be shown by parol evidence, this Co urt highlighted the importance of this doctrine by stating that [t]here is no more useful, just and p ractical rule of law, than that which admits evidence of surrou nding circumstances and collateral facts, within certain well defined lim its, for the purpose of enabling courts to ascertain and carry into effect the intention of contracting parties. The cases in which this rule has been applied are almost innumerable. [ Ives, 1 Mich at 313

. ] This Court has applied the latent am biguity doctrine to give easement language a meaning that becomes apparent only in light of the surrounding circumstances. See Keller v Paulos Land Co , 381 Mich 355; 161 NW2d 569 (1968); McConnell v Rathbun , 46 Mich 303; 9 NW 426 (1881). Keller is particularly instructive in this case. In Keller , the parties di sagreed over the purpose of a “nonexclusive easement of ingress and egress,” where the easement was landlocked within the defendant’s property. Keller , 381 Mich at 360. The defendant argued that, in context, it was clear that the easement was only intended to be used for parking. Id. at 360-361. This Court concluded that the language was ambiguous because a landlocked easement is “not a use of ingress and egress within the common legal m eaning,” and accordingly it was appropriate for the Court to use oral testimony to determine the true intent of the parties. Id. at 362. Similarly, in this case, the surrou nding circumstances show that there was a latent ambiguity; therefore, extrinsic ev idence should be used to determine and effectuate the intent of the parties. Th e central and south dr ive easements were

4described in the deeds as “a non-exclusive right of way for driveway purposes.” “Driveway purposes” is not so unclear as to create a pa tent ambiguity. But the parties’ use of the south drive easement for utilities at the time the easements were created suggests that, as in Keller , the parties’ unders tanding of “driveway purposes” was not limited to its “common legal meaning.” Keller , 381 Mich at
362. Because there is a latent ambiguity, the court may look to extrinsic evidence to determine the intent of the parties. As explained in the l ead opinion, extrinsic evidence shows that the grantors intended that the central eas ement could be used for utilities access for plainti ffs’ property. Therefore, I concur that plaintiffs should be granted relief.
II. LAND DIVISION ACT 2 I respectfully dissent from the holding that the LDA does not grant courts the power to alter substantiv e property rights. I think that the majority that reached that holding errs in ad dressing this issue in this case. I also think that its reasoning is flawed and that its conclusion is too broad. Most importantly, I do not think that it is necessary for this Court to reach this issue in this case. Th e lead opinion states that “[i ]n this case, the LDA did not create new substantive property rights when the circuit court altered the plat to reflect that the central easem ent encompasses utility acce ss” because “[t]his right existed with respect to the central eas ement since its ince ption . . . .” Ante at 14. I

2 MCL 560.101 et seq

. 5agree. Accordingly, it is i rrelevant to the outcome of this case whether, as a general proposition, the LDA allows courts to alter the underlying substantive rights of the property owners . Therefore, this Court does not need to address this issue. Nonetheless, as I am forced to discu ss it, I tend to disa gree with the lead opinion’s conclusion that “the LDA was never intende d to enable a court to establish an otherwise nonexistent property right.” Ante at 13-14. I think that there are some flaws in the l ead opinion’s reasoning and that this conclusion is too broad. Both MCL 560.221 and 56 0.226(1) state that courts may vacate, correct, or revise a recorded plat. Section 226(1) lists several exceptions to this power, but otherwise does no t explain when or why courts should vacate, correct, or revise a plat. The lead opinion reasons th at the LDA’s grant of power to the courts to vacate, correct, or revise a plat is not a substantiv e power because the act defines a plat as a map, and every body knows that revising a map does not automatically revise the underlying substantive prop erty rights. Regardless of whether the majority on this issue is correct in c oncluding that the LDA does not permit courts to alter property rights, I do not think that its reasoning is focused on the proper question. The relevant question is not whether a pl at is a map; rather, the question is whether the Legislature intended to give courts the power to alter substantive property rights by revising a map under th e circumstances in a given case. The

6lead opinion gives as an example that “[i]f one ‘revises’ a map of the United States to show Michigan en compassing half of the country, it does not make it
so.” Ante at 13. This statement is of cour se true of the average judge sitting at home with a book of Rand McNally maps a nd a permanent marker. But, if a duly empowered Legislature passed a statute st ating that when a court revises the boundaries of a map, that revision has th e legal effect of changing the boundaries, then a court’s revision of a map would indeed creat e a substantive change. 3 If the lead opinion’s conclusion is correct, th e reason it is correct cannot be that a revision to a map, by definition, can nev er alter substantive property rights. In addition to disagreeing with the lead opinion’s reas oning, I tend to think that the lead opinion’s stat ement that the LDA never permits courts to alter property rights through its power to vacate, correct, or revise a plat is too broad. 4

3 The act itself demonstrates that the Legislature in some instances intended that a plat not only reflect existing property rights, but al so be the sole legal basis for creating that right. For example, MCL 560.253(1) stat es that “every dedication, gift or grant to the public or any person, so ciety or corporation marked or noted as such on the plat shall be d eemed sufficient conveyance to vest the fee simple of all parcels of land so marked . . . .” Under this provis ion of the LDA, if a plat is amended to incl ude a dedication, then that amendment creates a property right. In other words, the act of amending the plat also ame nds a property right.

4 For example, this Court has stated that § 226(1) is the exclusive remedy for landowners seeking to vacate, revise, or correct a private dedication. Martin v Beldean , 469 Mich 541, 542-54 3; 677 NW2d 312 (2004). Vacating a dedication on a plat alters property rights; if § 2 26(1) is the “exclusiv e” way to make this change, then it must be that the statute itself permits courts to alter property rights. In Martin , this Court held that a plaintiff had to bring an action to void a private dedication under the LDA and not as an action to quiet title. Martin, 469 Mich at 550-552. If the LDA was not the legal basis for the court’s power to void a

7Instead, I would state that the Legislat ure intended MCL 560.221 and 560.226(1) to permit courts to alter property rights in at least some circumstances. I will not attempt to exhaustively det ermine when the LDA grants courts the power to alter property rights because the facts of this case do not present a suitable basis for analyzing these issues. Regardless, I belie ve that this Court’ s approach to this issue should be mo re cautious, nuanced, and case-sp ecific than the approach taken by the lead opinion.
CONCLUSION I would affirm the Court of the Appeal s result and vacate its reasoning. I think that the easement language was latently ambiguous and that the circumstances surrounding its writing show that the grantors intended plaintiffs’ property to access utilities through the cent ral drive easement. I respectfully dissent from the holding that the LDA ne ver enables a court to alter property rights.

Michael F. Cavanagh Elizabeth A. Weaver

dedication, then this Court would have held that the pl aintiff was required to bring an action to quiet title and an action under the LDA.

8v S T A T E O F M I C H I G A N SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H. TOMECEK, Plaintiffs-Appellees,
No. 134665 ANDREW LUCIAN BAVAS, JOYCE BAVAS, INEZ HILDEGARD BAVAS, STANLEY FRANCIS STASCH, JULIA STASCH, MARTHA STASCH, PATRICIA M. CURTNER, TIMO THY V. McGREE, PETER A. STRATIGOS, ALICE M. STRATIGOS, PAMELA KRUEGER, DEVEREAUX BOWLY, JR., DAVID N. DERBYSHIRE, ELLEN R. L A FOUNTAIN, JONATHAN RODGERS, ROYAL KENNEDY RODGERS, LEE STAHL, III, and SUSAN STAHL, Defendants-Appellants, and
INDIANA MICHIGAN POWER COMPANY, doing busi ness as AMERICAN ELECTRIC POWER COMPANY, INC., MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH, and BERRIEN COUNTY DRAIN COMMISSIONER, Defendants-Appellees, and DANIEL JOHNSON, SCOTT LOESS, KATHLEEN LOESS, JANE HENKLE, RICHARD CRAGG, LOIS ZYER, ARTHUR C. MERTZ REVOCABLE TRUST, PETERLEVY, BENITA LEVY, LAKESIDE PROPERTY OWNERS, CHIKAMING TOWNSHIP, ROBERT FORKER, JR., NEW BUFFALO SAVINGS BANK FIFTH THIRD BANK, SHORELINE BANK, SEMCO ENERGY, INC., SEMCO ENERGY GAS COMPANY, SBC AMERITECH CORPORATION, MICH AEL L. JONES, LAURA L. AVERY, and JULIA E. PIETRAS, Defendants.

WEAVER, J. ( concurring in part an d dissenting in part ). I partially concur with and dissent from the lead opinion’s conclusions for the reasons stated in Justice Cavanagh’s partial concurrence and partial dissent, which I join.

Elizabeth A. Weaver

2v S T A T E O F M I C H I G A N SUPREME COURT

FRANK J. TOMECEK, JR., and JANIS H. TOMECEK, Plaintiffs-Appellees,
No. 134665 ANDREW LUCIAN BAVAS, JOYCE BAVAS, INEZ HILDEGARD BAVAS, STANLEY FRANCIS STASCH, JULIA STASCH, MARTHA STASCH, PATRICIA M. CURTNER, TIMO THY V. McGREE, PETER A. STRATIGOS, ALICE M. STRATIGOS, PAMELA KRUEGER, DEVEREAUX BOWLY, JR., DAVID N. DERBYSHIRE, ELLEN R. L A FOUNTAIN, JONATHAN RODGERS, ROYAL KENNEDY RODGERS, LEE STAHL, III, and SUSAN STAHL, Defendants-Appellants, and
INDIANA MICHIGAN POWER COMPANY, doing busi ness as AMERICAN ELECTRIC POWER COMPANY, INC., MICHIGAN DEPARTMENT OF LABOR AND ECONOMIC GROWTH, and BERRIEN COUNTY DRAIN COMMISSIONER, Defendants-Appellees, and DANIEL JOHNSON, SCOTT LOESS, KATHLEEN LOESS, JANE HENKLE, RICHARD CRAGG, LOIS ZYER, ARTHUR C. MERTZ REVOCABLE TRUST, PETERLEVY, BENITA LEVY, LAKESIDE PROPERTY OWNERS, CHIKAMING TOWNSHIP, ROBERT FORKER, JR., NEW BUFFALO SAVINGS BANK FIFTH THIRD BANK, SHORELINE BANK, SEMCO ENERGY, INC., SEMCO ENERGY GAS COMPANY, SBC AMERITECH CORPORATION, MICH AEL L. JONES, LAURA L. AVERY, and JULIA E. PIETRAS, Defendants.

YOUNG, J. ( concurring in part and dissenting in part ). I concur with Justice Ke lly’s opinion insofar as it holds that the Land Division Act does not give trial courts th e authority to alter substantive property rights and it declines to address the common-law doctrine of easements by necessity. I write only to express misg ivings with regard to her disposition on whether the grantors of the plaintiffs’ easement inte nded to give the plaintiffs utilities access in addition to ingress and eg ress. Justice Kelly’s explanation that the grantors intended that th e plaintiffs use their easemen t in the same manner that the defendants used their easement at the ti me of the grant is plausible (and quite possibly correct). 1 Nevertheless, I am not convin ced that the mere fact that the defendants have used their easement for utilities access gives th e plaintiffs the right to use their separate easement similarly. Be cause there is insufficient

1 Although there are many nomin al defendants in this case, I use the term “defendants” throughout th is opinion to refer only to those defendan ts who own property in the O.T. Henkle Subdivision. 2evidence of the g rantors’ actual intent con cerning the plaintiffs’ particular easement at the time the eas ement was created, I cannot a ssent to Justice Kelly’s ultimate result that interp rets the plaintiffs’ easemen t as encompassing utilities access. I therefore resp ectfully dissent from Justice Ke lly’s determination of the grantors’ intent, although I concur with Justice Kelly insofar as she interprets the Land Division Act and dec lines to reach the common-la w doctrine of easements by necessity. 2 Rather than affirm the Court of Appeals result, which grants the plaintiffs’ motion for summary disposition, I would instead remand this case to the Berrien County Trial Court for trial.

Robert P. Young, Jr. Maura D. Corrigan Stephen J. Markman

2 Because this case came before this Court on cr oss-motions for summary disposition, and because the question of the grantors’ in tent would re main open on remand, it is not necessary at this point for me to de termine whether the doctrine of easement by necessity should be expanded to include utilities access. 3