Dispute the scope of an easement; Little v Kin; The law of the case doctrine; Duncan v Michigan

The court held that the trial court did not err by granting summary disposition for defendants-backlot owners after finding the grantors intended to allow them to engage in activities unrelated to the water beyond mere access and to give them riparian rights, including the ability to moor boats at docks overnight. Plaintiffs-lakefront owners sued defendants seeking a declaration that defendants’ rights were very limited as well as injunctive relief. The trial court agreed, finding defendants had an easement of access to the lake for water-related activities only and that they were permitted to erect docks at specified outlots for daily use but not for seasonal or overnight mooring of watercraft. In a prior appeal, the court reversed and remanded, finding the language of the restrictive covenant appeared less restrictive than the trial court determined, and that extrinsic evidence should have been considered. On remand, the trial court found that “the intent of the grantors was to give the [d]efendants, as backlot owners, riparian rights, including the ability to build, maintain, and use the docks, and for overnight mooring of boats on the docks . . . .” In the present appeal, the court rejected plaintiffs’ argument that only contemporaneous historical extrinsic evidence may be considered in construing the ambiguous language of the restrictive covenant. “[I]n considering extrinsic evidence when construing an ambiguous grant, that historical evidence not contemporaneous with the grant is not per se inadmissible; rather, a court, in considering such evidence, may disregard it if it determines that it is irrelevant.” It also rejected their claim that defendants’ access to the lake is limited to mere access and does not include overnight mooring of boats or activities unrelated to the water. It noted that, in the prior appeal, it ruled that “the rights granted to defendants under the restrictive covenant are akin to the rights and obligations held by the riparian owners and not limited to mere access.” The question left to the trial court on remand was the scope of riparian rights that defendants backlot owners possessed. As such, “to agree with plaintiffs, i.e., to conclude that the restrictive covenant only allows access to the lake, would violate the law of the case doctrine. While this Court’s obligation to adhere to prior decisions of the appellate court in the same case may be suspended where there has been a material change in the facts or intervening change in the law, plaintiffs have not highlighted any new material facts or a change in the law that would support their position.” In fact, the new evidence proffered on remand “does not support plaintiffs’ position, but instead supports defendants’ position.” Affirmed.