President's Corner

       January 23, 2003

Previous issues: January 2002, March 2002, April 2002, May 2002, June 2002, July 2002, September 2002, November 2002

The President’s Corner:

Road End Legislation

The Kowall road end legislation (HB 6548), drafted and introduced in the Michigan House of Representatives in early December, died in committee as the 2002 legislative session drew to a close. Unfortunately, with attention necessarily focused on the State's budget crisis, there simply wasn't time to schedule hearings and gain passage prior to adjournment of the legislature in late December.

The favorable news is that road end legislation has now been drafted in bill form and can be reintroduced in the 2003 session . . . and the HLPOA is already working toward that goal through our political contacts in Lansing. On this note, let me take this opportunity to personally thank each of you for your response in corresponding by letter and e-mail with your elected State House and Senate members voicing support for passage of HB 6548. It truly had an impact.

When the road end legislation is reintroduced . . . hopefully, in the very near term . . . it will again prove advantageous to make contact because of the significant number of newly elected members in the House and Senate. For example: If you are registered to vote in either Gerrish or Lyon Township your representative in the House is now Dale Sheltrown (replacing Rick Johnson) and in the Senate it's Michelle McManus (replacing George McManus). Obviously, we want both our representatives to be sensitive to the issues involving Higgins Lake and its watershed.

Michigan Court of Appeals Decision

On January 17, 2003 the Michigan Court of Appeals issued its decision in consolidated appeals embracing nine lakeshore subdivisions at Higgins Lake. The HLPOA's attorney, William Carey, presented oral argument before the appellate court panel in Grand Rapids last August 6th.

The subject of these cases was the scope of the public's right to use the road ends that terminate . . . within the respective subdivisions . . .at the edge of Higgins Lake. Owners of back lots in these subdivisions, as well as members of the general public, have used these road ends for lounging, sunbathing, and picnicking, as well as, seasonal mooring of watercraft and placement of boat hoists. The HLPOA maintained at the trial court level these activities are beyond the scope of the dedications and sought to enjoin further use of the road ends for these purposes.

A brief summation of the significant findings in the 31 page appellate Court decision follows:

1.     The HLPOA is a nonprofit corporation whose members are primarily lakefront property owners and whose purpose is to protect the lake, the watershed, and the interest of its members.
Accordingly, the HLPOA has standing to sue as a nonprofit membership organization litigating to vindicate the interests of its members.

2.     The HLPOA did not dispute the public's right to access the lake at the road ends. However, lounging, sunbathing, picnicking, and erection of boat hoists, seasonal mooring of watercraft and placement of private docks at the road ends are prohibited as beyond the scope of the dedication. The right of a municipality to build a wharf or dock at the end of a street terminating at the edge of navigable waters is based upon the presumption that the platter intended to give access to the water and permit the building of structure to aid in that access. The pubic access to the lake is
compromised by the appropriation of the road ends to private use by a few individuals. The Court concluded its reasoning in Jacobs to be sound and that records in the instant cases offer no evidence to show that anything more than access to the lake for boating, swimming, and fishing was intended. Interestingly, the appellate Court also offered the following recommendation: "We suggest that a legislative solution is warranted to control the road end activity in a better manner". Hopefully, this judicial observation will be taken seriously by elected officials.

3.     The Court found that injunctive relief sought by the HLPO was not warranted at this time. Common to all these cases, despite the variance in degree and type of use, is a lack of showing of irreparable harm to warrant injunctive relief. However, after this decision, which clarifies the scopes of the plat dedications, injunctive relief may be warranted if impermissible use of the road ends continues.

4.     The argument that the public has acquired rights to the road ends by adverse possession is, in reality, an assertion that the public has an easement by prescription to use the road ends for recreational purposes. The Court found that government entities are generally immune from adverse possession actions and, further, that unless there has been some action by representatives of the public, i.e. the government, a public easement cannot be established by prescription . . . recreational use of an area by various individuals over a period of years is insufficient to establish a public easement. Therefore, the Court ruled that mere use of the property is insufficient to establish a public easement by prescription at the road ends.

Note - The subdivisions consolidated in this Court of Appeals decision were: Old Point Comfort, Highland Park, Triangle Park, Lyon Manor and Shoppenagon's Lodge, Honolulu Beach, Sovereign Park, Whittington Park, Evergreen Park and Almeda Beach.

Ken Dennings,

President Higgins Lake Property Owners' Association