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Opinion Date: 12/30/2008
e-Journal Date: 01/02/2009
Full Text Opinion

Practice Area(s):   Real Property

Issues: Whether the Land Division Act (LDA) (MCL 560.101 et seq.) can be used to create substantive property rights such as a utility easement; Blackhawk Dev. Corp. v. Village of Dexter; Delaney v. Pond; Chapdelaine v. Sochocki; Curran v. Maple Island Resort Ass'n; Bell v. Todd; Construing together contemporaneous documents relating to the same transaction; Interstate Constr. Co. v. United States Fid. & Guar. Co.; MCL 560.221; Neal v. Wilkes; Yaldo v. North Pointe Ins. Co.; MCL 560.226(1); MCL 560.102(a); Whether an easement by necessity for utilities should be allowed; Whether the restrictive covenant running with the land barred the easement
Court: Michigan Supreme Court
Case Name: Tomecek v. Bavas
e-Journal Number: 41427
Judge(s): Kelly and Taylor; Concurring in part, Dissenting in part - Cavanagh and Weaver; Separate Concurring in part, Dissenting in part – Weaver; Separate Concurring in part, Dissenting in part – Young, Jr., Corrigan, and Markman

The court held the original grantors intended to allow utility access to the plaintiffs-Tomeceks' property through the central drive easement. Plaintiffs sought an easement for the purpose of connecting to a city sewer across the lots of their neighbors. The lead opinion concluded in 1975, when the O.T. Henkle subdivision was platted, it was the intent of the grantors the central easement could include utilities. This holding was supported by the fact, on the plat, the central easement and the south easement were both labeled the same. It was undisputed the south easement was a driveway and had utilities at the time of platting. The language of the restrictive covenant running with the plat also supported the holding. The covenant prevented a house from being built on Lot 2 until a municipal sewer system could be made available to the lot. Once a sewer line became available, the covenant allowed a house to be built on Lot 2. The lead opinion agreed with the Court of Appeals the restrictive covenant did not bar the easement. However, the court reversed the Court of Appeals holding the LDA can alter substantive property rights. The lead opinion also concluded it was unnecessary for the Court of Appeals to address whether an easement by necessity should be recognized in Michigan and applied in this case. Affirmed in part, reversed in part, and vacated in part.


Justices Cavanagh and Weaver would affirm the Court of the Appeals result and vacate its reasoning. The justices believed the easement language was latently ambiguous and the circumstances surrounding its writing showed the grantors intended plaintiffs' property to access utilities through the central drive easement. The justices respectfully dissented from the holding the LDA never enables a court to alter property rights.


Justice Weaver partially concurred with and dissented from the lead opinion's conclusions for the reasons stated in Justice Cavanagh's partial concurrence and partial dissent, which she joined.


Justices Young, Jr., Corrigan, and Markman concurred with Justice Kelly's opinion insofar as it held the LDA does not give trial courts the authority to alter substantive property rights and it declined to address the common-law doctrine of easements by necessity. The justices wrote only to express misgivings with regard to the disposition on whether the grantors of the plaintiffs' easement intended to give the plaintiffs utilities access in addition to ingress and egress. Rather than affirm the Court of Appeals result, which granted plaintiffs summary disposition, the justices would remand the case to the trial court for trial.

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