Westfall Heights Property Owners Assn Inc v. Derek Carr

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

WESTFALL HEIGHTS PROPERTY OWNERS UNPUBLISHED

ASSOCIATION, INC., April 07, 2025

11:24 AM

Plaintiff/Counterdefendant-Appellant,

v No. 365165

Roscommon Circuit Court

DEREK CARR, FREDERICK D. BERRY, LC No. 2017-723550-CH

JOANNE BERRY, ROBERT A. JACOBY LIVING

TRUST, CAROLE L. JACOBY LIVING TRUST,

JACK E. NEWMAN, CAROL L. NEWMAN,

GEORGE SPARROW, RICKY REIST, JOY REIST,

JAMES & NORMA BAKER TRUST, KAREN

JAYE, JAMES M. ROOT, JM INVESTMENT

GROUP, LLC, JEFFREY A. KUCH, DAVID

PIONTKOWSKI, MELANIE PIONTKOWSKI,

LINDA E. FERO, BRIAN LACKEY, JOANNA

LACKEY, LENORE C. BARTH, NORMAN C.

BARTH, DAVID M. BARTH, FLOYD & JUANITA

WALLINGTON TRUST, ROBERT W. GOOD,

MARY A. GOOD, RONALD & MARY MEIRING

TRUST, RAYMOND C. SHOEBOTTOM, SHERYL

L. SHOEBOTTOM, HUBERT M. JONES,

FRANCES L. JONES, CLAYTON SHAFER,

DAELYNN TERRELL, KEVIN HARVEY, TORI

HARVEY, MARGARET P. EVANS, WILLIAM I.

SOLES, KELLY HOWARD, PATRICK HOWARD,

HOWARD A. DIEM, GLORIA J. DIEM,

JENNIFER WILSON, JERRY F. SPEER, MARK D.

BRADLEY, VICKI JO BRADLEY, SCOTT

DOWD, PAM HUNT, KELLIE NAPLES,

DOUGLAS L. RYCKMAN TRUST ET AL.,

WOODROW HOLBROOK, JANICE HOLBROOK,

ROBERT J. FERRALL, WILMA J. FERRALL,

GOOSSEN LIVING TRUST, SALLY BYGROVE,

DEBRA NORTON, DALE J. HOWARD,

MARILYN JO HOWARD, GLEN E. VERDOUX,

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CAROL A. VERDOUX, RONALD L. FLEMING,

MARILYN K. FLEMING, MICHAEL J.

MCDONOUGH, SHARON L. MCDONOUGH,

ROBERT G. GEISLER, DEBORAH A. GEISLER,

FREDERICK A. MONDRO, JOANNE M.

MONDRO, JEFFREY L. WARREN, CHARLES B.

LAPHAM, LINDA LEE MILLER, BARBARA A.

FALLS, ANN M. MANDERNACH, DANIEL J.

MANDERNACH, JR., RAYMOND A. LOWRY,

ANN M. LOWRY, BRIAN MCKEEHAN,

CHARLES L. HOLBROOK, JR., FULLMER LAND

DEVELOPMENT, LLC, TERRENCE D. PARKER

JOYCE E. PARKER, RICHARD CHAPMAN,

CAROL CHAPMAN, EDDIE & CATHERINE

BIELEC LIVING TRUST, CAROL A. BARKE,

ROBERT D. BARKE, PAUL M. VANCE, DIANE

L. VANCE, JOSEPH R. MORSE, DONNA M.

MORSE, THOMAS V. MIKKO, ADAM A.

PURDY, JENNIFER BAKER, JUSTIN

REYNOLDS, KIRK OF UNITED

PRESBYTERIAN, THEODORE T. TOWN,

BARBARA E. BENSON, GREGORY J. YOST,

AMY A. YOST, BONIFACIO HERBERT FAMILY

TRUST, MICHELE A. FAETH REVOCABLE

LIVING TRUST, ELIZABETH L. BUSCH, J. M.

GOLDBERGER, LYNETTE E. GOLDBERGER,

TERRY HOLT, ROBIN HOLT, DONALD L.

LINTON, RUTH E. LINTON, LYNN DARRELL &

LINDA GRUBER TRUST, ERNEST C. BEBOW,

NANCY L. BEBOW, KELLY R. HEERLYN,

THOMAS O. HEERLYN, TIMOTHY J. REILLY

LIVING TRUST, ET AL., BRIAN D. MCNALLY

LIVING TRUST, DWIGHT MCNALLY, DONALD

R. ROHDE, MARLENE J. ROHDE, JOSEPH J.

OSTACH, LORA L. OSTACH, WAYNE BRAUN,

SANDRA BRAUN, MARYANN PAJOT, CHERYL

ANN WERTH, MARTHA ANN POULOS,

REBECCA ANN BOGGS, PATRICIA ANN

WEBER, and NORTHVIEW CABINS, LLC,

Defendants-Appellees,

and

CRAIG BROWN, GLENDA BROWN, JAMES

BROWN, DAVID CARROLL, BRENT COLLEY,

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JOYCE DONALDSON, ANITA HANSON, LYNN

HANSON, PHIL & MELLISSA HENDERSHOTT

TRUST, MELISSA ISAACSON, ROBERT

ISAACSON, SHEREE KORBOWNICK,

THADDEUS KORBOWNICK, JOHN LUND,

KATHLEEN LUND, KRISTINA MALENICH,

TINA WIEGOLD, ADELE PURDY, VERN

PURDY, DEBRA SCHUETTE, JEFFERY

SCHUETTE, JOHN P. DUVENDECK, DAVID

QUIMBY, PAMELA QUIMBY, WILLIAM F.

BEVINS, DEBRA A. BEVINS, MARK S. GATLIN,

ARTHUR E. PAYNE, HELEN K. PAYNE, LORI Q.

CHES, ROBBIN R. COOPER, SHAINA

SCHNEIDER, GILBERT J. NELSON, DOROTHY

A. NELSON, ANDREW NICHTER, MICHELLE

NICHTER, JAMES CANLER, PATRICIA

CANLER, ROBERT JONES, DEBORAH JONES,

DAVID W. CLARK, DONALD J. DENYS, JOYCE

A. DENYS, KRISTA KRAUSE, KENDRA

MURRAY, KARA JOHNSON, WISNIEWSKI

FAMILY TRUST, THOMAS A. SOHN, PETER J.

MARQUETTE, YVONNE J. ARNOLD, ANGELA

BIRD, FREDERICK D. GETTLE, LAURA L.

GETTLE, MILTON D. SPROUL, LOIS A.

SPROUL, TIM AINSWORTH, MARY JO

AINSWORTH, PHILLIP E. HENDERSHOTT

ESTATE ET AL., CRAIG R. BROWN AND

GLENDA S. BROWN FAMILY REVOCABLE

LIVING TRUST ET AL., and MICHAEL

DONALDSON,

Defendants/Cross-Plaintiffs-

Appellees,

and

RALPH A. CZOLGOSZ,

Defendant/Counterplaintiff-Appellee,

and

MARLENE K. CZOLGOSZ,

Defendant/Counterplaintiff,

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and

KEVIN G. FULLER,

Defendant/Cross-Defendant,

and

ANN R. COLLISON, STEVE P. ANTICUAR, JR.,

GAIL ANTICUAR, DONALD WILL, PAMELA

WILL, MICHAEL DANKERT, ALISHA

DANKERT, LYNN T. BAESE TRUST, ROBERT &

SUSAN REHMANN REVOCABLE LIVING

FAMILY TRUST, LINDA DICKINSON, ELDEN

DICKINSON, KATHI LYNN GREENFIELD,

KEITH WILLIAM CRANDALL, ROY D.

BURESH, SANDRA L. BURESH, and SHARON

QUINN,

Defendants,

and

KAREN STAELGRAEVE, GEORGE

STAELGRAEVE, ERIC COOK, and ALICIA L.

COOK,

Counterdefendants.

Before: BOONSTRA, P.J., and LETICA and RICK, JJ.

PER CURIAM.

Plaintiff Westfall Heights Property Owners Association, Inc., appeals by right the

judgment of the trial court following a bench trial. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff is a homeowner’s association with a membership consisting primarily of riparian1

property owners in the Westfall Heights subdivision on Houghton Lake. The defendants in this

1

Although land that abuts a lake, as opposed to a river, is more properly defined as “littoral,”

courts have used the term “riparian” to describe both types of land. 2000 Baum Family Trust v

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case consist of all the property owners in the subdivision.2 This appeal concerns the scope of the

permissible use of two areas in the subdivision used for docking boats, Center Landing and East

Landing.

The landings at issue have docks that extend into Houghton Lake. The dedication of the

plat of the Westfall Heights subdivision (the dedication) provides:

KNOW ALL MEN BY THESE PRESENTS, That we, SIMON

WESTFALL and BETSEY C. WESTFALL, husband and wife, as proprietors have

caused the land embraced in the annexed plat to be surveyed, laid out and platted

to be known as WESTFALL HEIGHTS . . . Denton Twp., Roscommon Co., Mich,

and that all the streets, boulevards, drives and avenues as shown on said plat are

hereby dedicated to the use of the public for roadway purposes and that the two

landings as shown on said plat are hereby dedicated to the use of the owners or

occupants of any or all of the lots included in this plat only.

The Center Landing dock was the subject of a lawsuit in 1999, in which this Court upheld

the trial court’s determination that the scope of the dedication allowed a dock at Center Landing.

Haag v Callard, unpublished per curiam opinion of the Court of Appeals, issued February 15,

2002 (Docket No. 223658). Haag involved a dispute about Center Landing between three

plaintiffs and eight defendants. In that case, the trial court found that the subdivision had been

platted by Simon and Betsey Westfall, who resided in the subdivision after the plat. The trial court

noted that the dedication stated that “the two landings as shown on said plat are hereby dedicated

to the use of the owners or occupants of any or all the lots included in this plat only.” Further,

only 26 of the 184 lots had lake frontage, meaning that more than 85% of the subdivision’s lots

relied on Center Landing and East Landing to access the lake.

In pertinent part, the defendants in Haag had asked the trial court to enjoin the plaintiffs

from using Center Landing for anything more than access to the water. The trial court opined that

the case would be “decided by determining the scope of the dedication of the plattors.” The trial

court noted that the plattors had referred to the access locations as “landings” instead of streets,

alleys, or any other type of passageway. The trial court considered the Black’s Law Dictionary

definition of “landing,” which indicated that a landing included the rights to launch watercraft,

moor boats, maintain a dock, and engage in water-related activities. However, the trial court also

considered the historical use of the landing and described the history of docks and wet-mooring of

boats that existed at Center Landing, stating:

There was extensive trial testimony that Mr. Simon Westfall lived in the

Subdivision after the plat was created through the remainder of the 1940’s and at

Babel, 488 Mich 136, 138 n 1; 793 NW2d 633 (2010). We will use the term “riparian” to remain

consistent with the lower court’s decision and the parties’ arguments on appeal.

2

Unless otherwise indicated, however, our references to “defendants” in this opinion refer to only

those defendants who argued that the scope of the subdivision’s dedication indicated that the

grantors intended to allow a dock to be present at each landing at issue.

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least into the 1950’s. During at least part of this time, boats were moored out from

Center Landing, a dock was installed, there was swimming, sunbathing and

picnicking (without picnic tables) on and near the end of Center Landing. Mr.

Westfall encouraged these activities.

The trial court in Haag found that the defendants’ use of Center Landing was within the

scope of the plat’s dedication. It held that permitted uses included “the placement of a dock that

is accessible to all owners and occupants of lots in the subdivision, seasonal mooring of boats,

sunbathing, picnicking (without picnic tables or structures) and swimming.” Additionally, the trial

court determined that parking while the lot owners or occupants were actually using the lake for

permitted uses was within the scope of the dedication, as long as the vehicles did not block access

to the lake, and that the plaintiffs could use the landing to access their lots. The trial court further

required that

the dock must be located and the boats moored in configurations so that the Lake

is always accessible to another lot owner or occupant who comes along to launch

or remove a vessel.

Additionally, the permitted uses of the landing were not allowed to unreasonably interfere with

the plaintiffs’ use and enjoyment of their property.

On appeal, this Court characterized the three plaintiffs as the owners of two riparian lots

and the eight defendants as nonriparian owners who used the landing to access Houghton Lake.

Haag, unpub op at 1. In pertinent part, this Court stated that, “[i]n determining the scope of

permissible use by nonriparian owners, the intent of the plattors should be determined with

reference to the language used in connection with the facts and circumstances existing at the time

of the grant.” Id. at 2. (emphasis added). We further stated that “[t]he extent of the nonriparian

owners’ dedicated use also may be determined according to the traditional and historical use of

the easement area.” Id.

This Court further agreed with the trial court that it was important that the grantors had

used the word “landing” in their dedication. Id. The parties had not presented evidence of the

facts or circumstances at the time the grantors had dedicated the landing. Id. However, testimony

suggested that one grantor continued to live in the subdivision and did not object to the dock or

the offshore mooring of boats. Id. at 3. This Court opined that “[t]his evidence raised the

reasonable inference that the grantor would have made it known if the subdivision residents were

behaving in a manner inconsistent with his intent at the time of dedication.” Id. When considered

in conjunction with the fact that the grantors had chosen to use the word “landing,” this Court

determined that it was not clearly erroneous for the trial court to have determined that the grantors

intended the dedication to include the right to erect a dock and seasonally moor boats. Id.

In the present case, the parties stipulated that there now are a total of 123 owners in the

Westfall Heights subdivision, with 97 backlot owners. There are both residential and commercial

owners. Plaintiff’s association consists of 22 members, only two of whom do not have lakefront

property. During the course of the lawsuit, the trial court ordered all property owners in Westfall

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Heights to be joined as defendants. The defendant members of plaintiff’s association were later

dismissed by stipulation.3

Plaintiff’s amended complaint sought a declaration concerning the scope of the dedication

of the landings, with plaintiff requesting in pertinent part that the trial court define the scope of the

dedication to include only the discharging or taking on of passengers or cargo. Plaintiff also

alleged two claims of nuisance per se, with one claim based on defendants’ alleged failure to

maintain a marina-operating permit under the Natural Resources and Environmental Protection

Act (NREPA), MCL 324.101 et seq., and the other based on defendants’ alleged violation of the

Denton Township zoning ordinance. As relief, plaintiff requested that the trial court determine the

scope of the dedication and limit it to the discharging and taking on of passengers and cargo,

permanently enjoin defendants from conducting a nuisance per se or, in the alternative, strictly

enforce the prior judgment in Haag, hold some defendants in contempt of court, and eject

defendants who were trespassing on private riparian areas.

Prior to trial, the trial court ruled that plaintiff was collaterally estopped from asserting that

the term “landing,” as applied to Center Landing, was different than the term as defined by the

Haag courts, holding that, although the prior case did not concern the same parties as the current

case, the parties shared identical interests in the scope of the dedication as the parties had in Haag.

Therefore, the current parties were privies under the “substantial identity of interests” rules, and

collateral estoppel could apply. The trial court also rejected plaintiff’s argument that there had

been an intervening change in the law between the time of the Haag decision and the present. The

previous court had relied on Dobie v Morrison, 227 Mich App 536, 540; 575 NW2d 817 (1998).

Haag, unpub op at 2. Although the trial court in this case struggled with the distinction between

Dobie, 227 Mich App at 541 (allowing use of extrinsic evidence in interpretation), Higgins Lake

Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83, 94; 662 NW2d 387 (2003) (not allowing

the use of extrinsic evidence in interpretation), it ultimately opined that Dobie had not been

overturned.

Following several days of trial testimony, the trial court issued a written opinion. The trial

court extensively summarized the procedural and factual history of the case and the testimonies of

an employee of the Department of Environment, Great Lakes, and Energy (EGLE), a Detective

from the Michigan Department of Natural Resources Law Enforcement Division’s Environmental

Investigation Section, and the Denton Township zoning administrator. The trial court found that

changing dock configurations had made it harder for riparian owners to enter and leave their docks

and that wet-anchoring of boats in the lake compounded the problem of congestion. The trial court

also found that the property owners mooring boats at East Landing had started an association that

collected annual fees for dock mooring; despite the fact that there was no formal association at

Center Landing, the trial court noted that a property owner was required to purchase sections of

the communal dock in order to moor a boat there. It determined that “[t]he fee arrangement is

managed and controlled by others that already moor their boats at the landing dock.” The trial

court further found that, because of the number of boats moored at the landings, owners and

3

Numerous other defendants have also been dismissed, declined to participate, or reached consent

judgments.

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occupants in the subdivision were unable to swim and recreate in the 50-foot-wide landing. Often,

those people moved beyond the docks and used the water in front of the riparian owners’ property.

The trial court held that the scope of the dedication for Center Landing had already been

determined in Haag and that the previous courts’ rulings were binding on that issue. Moreover,

although that decision had concerned only Center Landing, the trial court opined that the same

definition should be applied to East Landing because nothing in the language of the dedication

indicated that the grantors intended different scopes of use for the different landings.

Relevant to the arguments in this appeal, the trial court determined that the landing docks

provided seasonal mooring of boats, including the loading and unloading of boats, and concluded

that docks provided a “service” under the NREPA. The trial court noted that MCL 324.30101(j)

defined a “marina” as a facility that “offers service to the public or members of the marina,” and

concluded that the fact that participants were required to pay a fee or pay into a fund to use the

docks qualified the docks (as they were currently used) as a marina. In simpler terms, the trial

court found that the docks were being operated as marinas because a fee was charged to use them.

Additionally, the trial court found that the use of docks at both landings “currently affects riparian

rights and unreasonably interferes with navigation and the correlated rights of adjacent riparian

owners.” Therefore, a permit would be required for the docks to continue operating in the current

manner. The trial court further noted that a permit might be required under the NREPA, even if a

structure is not deemed a marina, if that structure interfered with other legal uses of the water. The

trial court found that the current use of the docks at the landings were not contained solely within

the landings’ riparian owners’ interests, and therefore violated the NREPA by unreasonably

interfering with the riparian rights of others.

After considering the township zoning ordinance and the testimony of the witnesses, the

trial court held that both landings were to be limited to the mooring of no more than ten watercraft

within the landings’ riparian areas of interest, with no more than five watercraft seasonably moored

at the docks and no more than five watercraft wet-anchored beyond the docks. The trial court held

that this limitation on mooring would bring the landings into compliance with the township’s

zoning ordinance, would be consistent with the NREPA, and would not result in an unreasonable

interference with the adjacent riparian uses. Accordingly, this level of use would not require a

permit under the NREPA because the owners had the right to put out a dock and moor boats, the

docks were being used for private, noncommercial, recreational use, and their use would not result

in an unreasonable interference with the adjacent riparian uses.

This appeal followed.

II. COLLATERAL ESTOPPEL4

Plaintiff argues that the trial court incorrectly applied the law of collateral estoppel because

the parties to this case are not the same as the parties to the previous case, and therefore, the

4

Plaintiff frames its arguments on appeal as concerning res judicata rather than collateral estoppel.

Although aspects of these doctrines overlap, these are separate doctrines. See Mecosta Co Med

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doctrine does not apply. Plaintiff also argues that there has been an intervening change in the law

since the Haag decision regarding whether a court may consider historical use when determining

the scope of a dedication. We disagree with both arguments.

This Court reviews de novo the application of the doctrines of res judicata or collateral

estoppel. King v Munro, 329 Mich App 594, 598; 944 NW2d 198 (2019). We review de novo

questions of law. Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019); 2000 Baum

Family Trust v Babel, 488 Mich 136, 143; 793 NW2d 633 (2010).

“Collateral estoppel is a rule of issue preclusion.” Moses v Dep’t of Corrections, 274 Mich

App 481, 503; 736 NW2d 269 (2007). The elements of collateral estoppel are:

(1) a question of fact essential to the judgment must have been actually litigated

and determined by a valid and final judgment, (2) the parties or privies must have

had a full [and fair] opportunity to litigate the issue, and (3) there must be mutuality

of estoppel. [Mecosta Co Med Ctr v Metro Group Prop & Cas Ins Co, 509 Mich

276, 283; 983 NW2d 401 (2022) (quotation marks and citation omitted; alteration

in original.]

A. SAME PARTIES OR PRIVIES

Plaintiff argues that the trial court should not have applied the doctrine of collateral

estoppel because the same parties involved in this suit were not involved in the previous suit. We

disagree, and conclude that the trial court did not err when it determined that the parties were

privies for the purposes of collateral estoppel because the parties’ interests in the previous case

were so identified with the parties’ interests in this case that they represented the same legal rights.

When applying the doctrine of collateral estoppel, a critical factor is “the determination of

whether the respective litigants were parties or privy to a party to an action in which a valid

judgment has been rendered.” Mecosta Co Med Ctr, 509 Mich at 283. “In its broadest sense,

privity has been defined as mutual or successive relationships to the same right of property, or

such an identification of interest of one person with another as to represent the same legal right.”

Id. at 283-284. “Privity does not arise from the mere fact that persons as litigants are interested in

the same question or in proving or disproving the same state of facts.” Id. at 284 (quotation marks

and citation omitted). Rather, “[p]rivity between a party and a non-party requires both a substantial

identity of interests and a working or functional relationship . . . in which the interests of the non-

Ctr v Metro Group Prop & Cas Ins Co, 509 Mich 276, 282-283; 983 NW2d 401 (2022); Synergy

Spine & Orthopedic Surgery Ctr, LLC v State Farm Mut Auto Ins Co, ___ Mich App ___, ___;

___ NW3d ___ (2024) (Docket No. 364359); slip op p 4. “Whereas res judicata involves

preclusion of entire claims, collateral estoppel focuses on specific issues within an action.”

Mecosta Co Med Ctr, 509 Mich at 282-283. Because the issue concerns only whether the prior

case’s definition of the term “landing” should be applied in this subsequent case, collateral estoppel

is the applicable doctrine.

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party are presented and protected by the party in the litigation.” Phinisee v Rogers, 229 Mich App

547, 553-554; 582 NW2d 852 (1998).

There is no dispute that the parties to this case are not the same as the parties to the previous

case. However, the parties are in privity because the interests of the parties in this case are so

identified as to represent the same legal right. See Mecosta Co Med Ctr, 509 Mich at 284. The

subdivision’s plat provides that “the two landings as shown on said plat are hereby dedicated to

the use of the owners or occupants of any or all of the lots included in this plat only.” Every

property owner within the Westfall Heights subdivision would have their rights affected in the

same way by the interpretation of the plat language at issue. The parties merely advance different

positions about the meaning of a term from which all of their mutual property rights devolve.

Additionally, there is no indication that the riparian and nonriparian owners in this case are

attempting to represent different legal interests than those of the riparian and nonriparian owners

in Haag. In Haag , the riparian owners had sought to restrict the nonriparian owners’ use of Center

Landing to only accessing the water. In this case, plaintiff seeks to restrict the nonriparian owners’

use of Center Landing to only discharging and taking on passengers and cargo. The prior plaintiffs

were riparian owners. In this case, plaintiff’s membership consists primarily of riparian owners;

only two members of plaintiff do not have lakefront property. The vast majority of defendants are

nonriparian owners. Notably, all but one of the defendants dismissed from the case by consent

judgment were members of plaintiff. Both riparian and nonriparian owner interests were

represented in the prior proceeding concerning the meaning of the word “landing” as it applied to

all property owners, and this case again involves a dispute between riparian and nonriparian

owners regarding the meaning of that term.

We agree with the trial court that the parties to the respective cases share a substantial

identity of interests sufficient to be privies. This case does not merely concern an overlapping

legal question. Instead, it involves parties whose rights devolve from the same property interest

asserting the same legal rights as the parties in the prior proceeding.

B. INTERVENING CHANGE IN LAW

Plaintiff also argues that the trial court erred by determining that collateral estoppel barred

relitigating the meaning of the word “landing” because there has been an intervening change in the

law that affects how the word should be interpreted. Plaintiff specifically contend that changes in

the law since Haag indicate that a dedication should not be interpreted in connection with the facts

existing at the time of the grant. We disagree.

Res judicata5 does not bar a subsequent action “when there has been an intervening change

of law that alters the legal principles on which the court will resolve the subsequent case.” In re

Bibi Guardianship, 315 Mich App 323, 334; 890 NW2d 387 (2016) (quotation marks and citation

omitted). “When interpreting deeds and plats, Michigan courts seek to effectuate the intent of

those who created them.” Tomecek v Bavas, 482 Mich 484, 490-491; 759 NW2d 178 (2008). A

5

See n 4.

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plat need not use any specific words to create an easement. Id. If the original grantors use the

same labels for easements, they intend that the same use applies to them. Id.

“If the text of the easement is ambiguous, extrinsic evidence may be considered by the trial

court in order to determine the scope of the easement.” Little v Kin, 468 Mich 699, 700; 664 NW2d

749 (2003). However, if the language of a deed is plain and unambiguous, “no further inquiry is

permitted.” Id., citing Gawrylak v Cowie, 350 Mich 679, 683; 86 NW2d 809 (1957) (stating that

“[t]his Court has recognized in prior decisions that a deed of conveyance, if not ambiguous in its

terms, must be construed as written.”). The Little Court noted that

the Court of Appeals stated that “in deciding the scope of [the] defendants’ rights

under the easement, the trial court must consider the language in the easement itself

and the circumstances existing at the time of the grant . . . .” . . . This directive is

clearly inconsistent with the well-established principles of legal interpretation as

stated above and is thus incorrect. [Little, 468 Mich at 700 n 2.]

Therefore, it has been inappropriate, since at least 1957, for a court to consider extrinsic evidence

to determine the scope of an easement’s dedication unless the dedication is ambiguous. There has

been no intervening change in law between the 2002 Haag decision and the present.

Plaintiff argues that the law has changed because the trial court and this Court in Haag

relied on Dobie, 227 Mich App at 541, which plaintiff asserts was overruled by Higgins Lake, 255

Mich App at 94. But the Court in Higgins Lake did not change the law; it applied the law

consistently with the well-established principles noted by the Michigan Supreme Court in Little.

It is clear from caselaw that it is not appropriate for the trial court or this Court to consider the

circumstances existing at the time of the grant unless the dedication is ambiguous. The law has

not changed.6

Even so, we do agree with plaintiff that the law-of-the-case doctrine is inapplicable. The

law-of-the-case doctrine provides that if this Court has ruled on a particular issue, we will not

decide that issue differently during a subsequent appeal in the same case. Lenawee Co v Wagley,

301 Mich App 134, 149 836 NW2d 193 (2013). Haag and this case do not involve a single,

continuing suit. Nevertheless, because the trial court correctly applied the doctrine of collateral

estoppel to reach the same result, its later references to the law-of-the-case doctrine were harmless

because they did not affect the outcome of the lower court’s decision. See Ellison v Dep’t of State,

6

Plaintiff additionally asserts that the Haag courts incorrectly applied the law to the extent that

extrinsic evidence was considered to determine the plattors’ intent without a determination that the

language the plattors used was ambiguous. This assertion is a collateral attack on Haag, and we

decline to address it in this appeal. See Roman Cleanser Co v Murphy, 386 Mich 698, 703-704;

194 NW2d 704 (1972).

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320 Mich App 169, 179; 906 NW2d 221 (2017). Any error is particularly harmless when the trial

court indicated that it would have applied the same definition regardless.7

The trial court did not err by holding that plaintiff was collaterally estopped from litigating

the definition of the word “landing” in this case. King v Munro, 329 Mich App at 598.

III. NREPA VIOLATION

Plaintiff also argues that an EGLE employee’s determination that the landings’ docks

required a permit precluded the trial court from concluding otherwise. We disagree. This Court

reviews de novo questions involving the interpretation and application of statutes. Linden v

Citizens Ins Co of America, 308 Mich App 89, 91; 862 NW2d 438 (2014). We review de novo a

trial court’s equitable decision, but review for clear error any findings of fact supporting those

decisions. Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 270; 761 NW2d 761 (2008). A

finding of fact is clearly erroneous if, giving deference to the trial court’s credibility

determinations, no substantial evidence supports the finding or this Court has a definite and firm

conviction that the lower court made a mistake. Miller-Davis Co v Ahrens Constr, Inc, 495 Mich

161, 173; 848 NW2d 95 (2014).

“All matters of statutory interpretation begin with an examination of the language of the

statute.” McQueer v Perfect Fence Co, 502 Mich 276, 286; 917 NW2d 584 (2018). When

interpreting a statute, this Court’s goal is to give effect to the intent of the Legislature. Sunrise

Resort Ass’n, Inc v Cheboygan Co Rd Comm, 511 Mich 325, 333; 999 NW2d 423 (2023). The

language of the statute itself is the primary indication of the Legislature’s intent. McQueer, 502

Mich at 286. This Court reads the statute as a whole while “reading individual words and phrases

in the context of the entire legislative scheme.” Sunrise Resort Ass’n, 511 Mich at 334 (quotation

marks and citation omitted).

Plaintiff argues that the trial court erred by failing to adopt the testifying EGLE employee’s

determinations regarding whether the docks at the landings violated the NREPA. We disagree.

“[A]gency interpretations are entitled to respectful consideration, but they are not binding on

courts and cannot conflict with the plain meaning of the statute.” In re Complaint of Rovas Against

SBC Mich, 482 Mich 90, 117-118; 754 NW2d 259 (2008). Respectful consideration is not the

equivalent of deference, id. at 108, but rather indicates that the agency’s decision may be helpful

when construing a provision with a doubtful or obscure meaning. See Grass Lake Improvement

Bd v Dep’t of Environmental Quality, 316 Mich App 356, 363; 891 NW2d 884 (2016). The trial

court was not required to give the EGLE employee’s opinion deference when interpreting the

NREPA.

Plaintiff also argues that the trial court rendered inconsistent rulings regarding whether the

docks were marinas that required permits. But a careful review of the trial court’s decision

7

We note that the Haag courts principally relied on definitions of the word “landing” to determine

that a landing included the right to launch watercraft, maintain boats, and engage in water-related

activities; they did not base their interpretations solely or even primarily on the historic use of the

landings.

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establishes that its rulings were not inconsistent. Rather, the trial court found that the docks at the

landings had been operating as unpermitted marinas under the NREPA because fees were being

charged to use the docks (not, as plaintiff contends, because the docks were providing services),

and the trial court tailored its relief so that, in the future, the landings would not require permits

because they would merely be seasonal structures placed on the bottomlands to facilitate private

use and would not unreasonably interfere with the use of water by others.

Michigan’s nuisance law supports the trial court’s holdings. There are two varieties of

nuisance recognized in Michigan: public nuisance and private nuisance. Adkins v Thomas Solvent

Co, 440 Mich 293, 302; 487 NW2d 715 (1992). “A private nuisance is a nontrespassory invasion

of another’s interest in the private use and enjoyment of land.” Id. “[T]he gist of a private nuisance

action is an interference with the occupation or use of land or an interference with servitudes

relating to land.” Id. at 303. The elements of a claim of private nuisance are “that (1) defendants

interfered with the use or enjoyment of plaintiff’s property rights and privileges; (2) defendants’

invasion of the property interests caused plaintiff significant harm; and (3) the invasion was

intentional and unreasonable or was otherwise actionable under the rules governing liability for

negligent, reckless, or ultrahazardous conduct.” Cleveland v Hath, ___ Mich App ___, ___; ___

NW3d ___ (2024) (Docket No. 363321); slip op p 7. See Adkins, 440 Mich at 304. “Where a

private nuisance affects water, a riparian land owner may commence an action for its abatement.”

White Lake Improvement Ass’n v Whitehall, 22 Mich App 262, 272; 177 NW2d 473 (1970).8

“A nuisance at law or a nuisance per se is an act, occupation, or structure which is a

nuisance at all times and under any circumstances, regardless of location or surroundings.”

Ypsilanti Charter Twp, 281 Mich App at 269 n 4, quoting Bluemer v Saginaw Central Oil & Gas

Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959) (quotation marks omitted). “Whether an

allegedly injurious condition constitutes a nuisance per se is a question of law.” Ypsilanti Charter

Twp, 281 Mich App at 269.

The NREPA defines “marina” as “a facility that is owned or operated by a person, extends

into or over an inland lake or stream, and offers service to the public or members of the marina for

docking, loading, or other servicing of recreational watercraft.” MCL 324.30101(j) (emphasis

added). A “ ‘seasonal structure’ includes any type of dock, boat hoist, ramp, raft, or other

recreational structure that is placed into an inland lake or stream and removed at the end of the

boating season.” MCL 324.30101(t). The NREPA provides in pertinent part that, “[e]xcept as

provided in this part, a person without a permit from the department shall not . . . [c]onstruct,

reconfigure, or expand a marina.” MCL 324.30102(1)(c). MCL 324.30106a governs the

permitting of a marina. However, “[a] permit is not required under this part for . . . [a] seasonal

structure placed on bottomland to facilitate private noncommercial recreational use of the water if

8

Although uncontradicted opinions issued before November 1, 1990, are not binding, they should

be considered as precedent and receive greater deference than unpublished cases. Davis v Wayne

Co Election Comm’n, ___ Mich App ___ n 11; ___ NW3d ___ (2023) (Docket No. 368615); slip

op p 12 n 11.

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it does not unreasonably interfere with the use of the water by others entitled to use the water or

interfere with water flow.” MCL 324.30103(1)(b).

The trial court’s ruling regarding the application of the NREPA was complex, but it did

not lose sight of the fact that the end goal of its examination was to determine whether the activity

at the landings constituted a nuisance and, if so, what should be done about it. The trial court held

that the parties had not contested that the landing docks were seasonal structures on bottomlands

to facilitate private noncommercial recreational use of the water; accordingly, even if held to be a

marina under the NREPA, a permit would only be required if the presence or use of the structures

unreasonably interfered with the flow of water or the water by others entitled to do so. The trial

court further found that the landing docks provided seasonal mooring of boats, including the

loading and unloading of boats, and that this use of the docks was a “service” under the NREPA.

However, a facility offering such a service is only a marina if the service is offered to members of

the public or members of the marina. MCL 324.30101(j). Westfall Heights is a private subdivision

and the landings are not open to members of the public. In this case, the trial court emphasized

that property owners were required to pay a fee or pay into a fund to use the docks. The trial court

determined that, based on those facts, the landings’ docks qualified as a “marina.” In other words,

the trial court did not conclude that the docks were marinas solely because they provided a service;

it concluded that the docks functioned as marinas because the docks offered a service to members

who paid for the privilege.

The trial court then found that the uses occurring at the landings’ docks violated the

NREPA because they were an overuse of the landing area and an unreasonable interference with

the rights of the adjacent riparian owners. The use of the docks resulted in boats being operated

outside the confines of the landing area. The trial court specifically found that, “based upon the

testimony of [the EGLE employee] and the formula used in MCL 324.30106a(2), the use of the

landing docks as it exists right now violates MCL 324.30103—thus, a permit is required for both

docks.” (Emphasis added.) The trial court determined that, “[i]n light of the above, the court finds

that the use of the landings presently constitutes an overburdening of the landing area in correlation

with the adjacent riparian owner’s interests.” (Emphasis added.)

After determining that the docks at the landings constituted a nuisance, the trial court was

then permitted to fashion an appropriate remedy. “The difference between a nuisance per se and

one in fact is not in the remedy but only in the proof of it.” Ypsilanti Charter Twp, 281 Mich App

at 269-270. Nuisance-abatement proceedings are equitable in nature. See id. at 270 (concerning

public nuisances). A court sitting in equity “molds its relief according to the character of the

case[.]” Allard v Allard (On Remand), 318 Mich App 583, 596; 899 NW2d 420 (2017).

(Quotation marks and citation omitted).

In this case, the trial court specifically tailored its relief with the intent to bring the docks

into compliance with the NREPA moving forward:

[T]he court finds that both center and east landing shall be limited to having no

more than ten (10) watercraft moored within the landings’ riparian area of interest;

no more than five (5) watercraft can be seasonably moored at the landing docks

(with or without hoists) and no more than five (5) watercraft can be seasonably wet

anchored out beyond the landing docks. Watercraft wet anchored must be

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configured so that the mooring under any wind condition will occur solely within

the landing area. This limitation on boat mooring will bring the landings into

compliance with the township ordinance (despite the township not enforcing the

ordinance) and is consistent with Part 301 of the Act. In the court’s view, limiting

the seasonal mooring at the landings to no more than ten boats will not result in an

unreasonable interference with the correlated adjacent riparian uses and as such,

does not violate MCL 324.30103 which would otherwise require a permit for such

use. The court also finds that MCL 324.30101, 324.30106, and 324.30106a will

not be violated with this limitation of use in place at the landings because this

limited use is intended to be consistent with the correlative rights of other riparian

owners in the area and it is consistent with the property right to put out a dock and

moor boats as ordered in the Haag case. Thus, the two landing docks do not require

a permit under these specific sections of the Act. Finally, the court finds that the

landings are being used for a private noncommercial recreational use of the water

based upon a private property right conveyed to the owners and occupants of the

plat as previously ordered in Haag. [Bold in original.]

The trial court correctly held that, as long as defendants are not offering services to

members of the public or members of the marina, their activity does not fall within

MCL 324.30101(j). And, provided that defendants’ placement and use of docks remains private,

noncommercial, recreational, and does not unreasonably interfere with the use of water by others,

MCL 324.30101(1)(b) provides that those docks do not require a permit. The trial court agreed

with plaintiff that the docks were being operated in a way that was interfering with others’ riparian

interests inconsistent with the NREPA. It then tailored its relief so that the docks would not be

operating as a marina in the future and would, in theory, operate in a way that would not require a

permit. Its rulings were not inconsistent.

Plaintiff also argues that the trial court improperly held that the parties had not contested

the fact that the landings are private and noncommercial. We disagree. Before the trial court,

plaintiff did not argue that any of the activity at the landings was commercial; plaintiff argued only

that the operation of the docks constituted the operation of a marina, and it supported that argument

with the use of fees. All discussion of the dock fees before the trial court was in the context of

whether fees were necessary to establish that the docks were operating as marinas. The trial court

did not err when it held that neither party had argued that the docks were used for commercial

purposes.

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Affirmed.9

/s/ Mark T. Boonstra

/s/ Anica Letica

/s/ Michelle M. Rick

9

We decline the request of defendants Ralph and Marlene Czolgosz to speculate on whether our

opinion may affect the validity of their consent judgment. “A party may not premise an action on

a hypothetical controversy.” Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 553;

904 NW2d 192 (2017). Because no party has challenged the validity of that consent judgment,

this issue is not ripe for review.

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