Petition for Writ of Certiorari — Yee v. Shiawassee County Board of Commissioners
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OD) somes ue
03 $352 SEP 2 2003
Docket No.
In the SUPREME COURT of the UNITED STATES
On Petition for Writ of Certiorari for the:
Michigan Supreme Court,
Yee, Petitioner v Shiawassee County Board of
Commissioners et al, Respondents; Yee, Petitioner v
George Braidwood, Jr. et al Respondents,; Yee, Petitioner
v Donald G. Cummings, Trustee et al, Respondents
&
Michigan Court of Appeals, District I Detroit
Yee, Petitioner v Shiawassee County Board of
Commissioners et al, Respondents; Yee, Petitioner v
George Braidwood, Jr. et al Respondents,; Yee, Petitioner
v Donald G. Cummings, Trustee et al, Respondents
&
Shiawassee County, 35" Circuit Court, Michigan
Yee, Petitioner v Shiawassee County Board of
Commissioners et al, Respondents
William R. Yee appearing pro se
P. O. Box 310
Owosso, MI 48867-0310
517 214-6196
Questions Presented
This case will resolve disputes regarding iimits of state
powers over riparian property on private lakes in the United
States, states formerly part of the Northwest Territories and
the state of Michigan.
Does this case address an attempt by a state to extend its
powers over private property in violation of United States
Supreme Court decisions regarding rights of due process
and property protected by the Fifth and Fourteenth
Amendments of the United States Constitution?
Petitioner says yes.
Respondents would say “No.”
Can a state change a court rule and modify a statute so as
to permit condemnation of private riparian property for the
private use of other riparian property owners on a private
lake with no public access and no public purpose alleged in
the complaint or proven at trial without violating the intent
of the Fifth and Fourteenth Amendments to the United
States Constitution?
Petitioner says No.
Respondents would say “Yes.”
Are sanctions against Petitioner an abuse of discretion in
furtherance of a state’s effort to deprive its citizens of
property rights protected by the Fifth and Fourteenth
Amendments of the United States Constitution?
Petitioner says yes.
Respondents would say “No.”
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A list of all parties
Michigan SC 122123; COA 226612 Genesee 00-067 136-
CZ, Shiawassee 99-3617-CZ
William R. Yee,-Petitioner
Vv
Shiawassee County Board Of Commissioners, Bernard
Butcher, and George Braidwood, JR., Respondents,
Michigan SC 122124; COA 226613 Genesee County 00-
067157-CZ, Shiawassee County 99-4120-CZ
William R. Yee, Petitioner,
V
George Braidwood, Jr., Cynthia Braidwood, George
Braidwood, Sr., Rosemary Braidwood, Kimberly Call,
Donald G. Cummings, Eva Cummings, Kevin Dutcher,
Matthew Dutcher, Lloyd Fayling, Leslie Fayling, Edward
Flynn, Josephine Flynn, Bryan Jackson, Kelly Jackson,
Eric King, Melody King, Ozark Land Company, Norma
Power, Norma Jean Power Trust, Christine Roche, Jerry
Shorna, Letha Shorna, Shorna Family trust, Inez Ross,
Louis Whalen, Director Of The Department Of
“environmental Quality, Director Of The Department Of
Natural Resourdes, Michigan State Police, Shiawassee
County Commissioners, Shiawassee County Prosecutor,
Shiawassee County Sheriff, and Forrest and Eva
Cummings Trust, Respondents;
Michigan SC 122125; COA 226614 Genesee County 95-
038534-CH, Shiawassee County 95-004535-CH
William R. Yee, Petitioner/Plaintiff below, and
Michigan Attorney General, for Michigan Department of
Environmental Quality, Respondent/Intervening Plaintiff
Below
Vv
Vonald G. Cummings, Trustee of the Forrest and Eva
Cummings Trust, Forrest and Eva Cummings Trust, Forrest
Cummings, Eva Cummings, George Braidwood, Cindy
Braidwood, Bryan Jackson, Kelly Jackson, Rosemary
Braidwood, Kenneth J. Foote, Jerry Shorna, Letha Shorna,
Norma Power, Kim Call, Lloyd Fayling, Leslie Fayling,
Edward Flynn, Jacqueline Flynn, Eric King, and Melody
King, Respondents/Defendants
Michigan Shiawassee No. 00-005032-CZ, 06-14-1999
IN THE MATT’ & OF Determination of a Lake Level for
the Waters of Bambi Lake
William R. Yee, Petitioner/Riparian owner and Respondent
Below
Vv =
Bernard A. Butcher, Shiawassee County Drain
Commissioner, Respondent/Petitioner below, agent for:
Shiawassee County Board of Commissioners,
Respondents/Petitioners Below
Eva Cummings,; Bryan Jackson, Kelly Jackson, Edward
Flynn , Jacqueline Flynn, Inez Ross, Lois Whalen, George
Braidwood , Cindy Braidwood, George Braidwood, Sr..
Rosemary Braidwood, Sr., Jerry Shorna, Letha Shorna,
Kim Call, Eric King, Melody King, Norma Power,
Respondents/ Riparian Owners who petitioned the Board of
Commissioners;
James P. Edwards, Joyce A. Edwards, David Gingery,
Michelle Gingery, Christopher Pearce Angle. June Merece
Angle, Respondents/Appellees, Respondents added by
court order;
Westerly Tressler, Respondent/3" Party in Interest (Down-
Stream Riparian.
Petitioner does not know of any corporation that has an
interest in this proceeding.
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iv
table of contents
FA ices cobtcdiseys debansederstasactetemrnwnus Page Number
Rn IIIIINII . o2,. s cvndacouvennenasanmaies i
PE Fe BI civ vccin sci nsceansescnvecicscbesees ii-iii
RE I nine sccnecsanenes sn cecscnseesnnesse iv
Table of Cases, Statutes and Court Rules
Fe Bo iiksectsicceseicccniaons v-vi
Table cf Constitutional Law................ vii
Table of Michigan Statutes................ vii
Table of U. S. Supreme Court Rules....... vii
Michigan Court Rules.....................5 viii
Citations of the official /unofficial reports __ viii
Statement basis jurisdiction......................64. 1-2
The constitutional provisions.....................+5. 3
A concise statement of the case................ 655. 4-13
A direct and concise argument
Prior Law Property Rights the Common Law.... 13
Prior Law: Riparian Property Rights Under Deeds 13-15
Prior Law Permitted Suit to Protect Property......... 15
Prior Law Applied the ILLA to Public Waters........ 15-17
Michigan Now Changes Prior Law...................+. 17-18
Public safety is protected by the Dam Safety Act.....18-19
Michigan Changes to Petitioner's Property Rights... 19-22
The mediation agreement did not
include taking petitioner's property.................. 22-23
Michigan Denies Petitioner Due Process.......... 23-24
CR IS ec cicsewinkaniasavpcuisniseperommntarin 24-25
PRNNE E ihikcsids ac ccieiensenininenikeieennciin 26-28
Signature and Attestation of truth.................. 28
RI PIN i isn sid nr skxnccdevncnncvanineetecnonindes 29
PTI 9 0 sicinccins rian esnaddacertocnepemeinenunieal 30-74
iv .
TP wtlcwncicanteanuaaniasa ee Page Number
Arnold v Ellis, 5 Mich App 101, 109-112:
145 NW2d 822 (1966)............... 15, 18, 23, 25, 26, 27, 28
Bott v. Natural Resources Comm'n, 415 Mich. 45,
60, 77-78, 327 N.W.2d 838 (1982).................... ..... 13
Cincinnati v Vester, 281 U.S. 439 re 3, 25, 26
City of Lansing v Edward Rose Realty, Inc.,
192 Mich. App. 554- 555; 481 NW2d 795 (1992)... ..20-21
First English Evangelical
Lutheran Church v County of
Los Angeles, 482 US 304 (1987)................. 3, 25, 26
Gillespie v Dunn 246 Mich 415, 419:
Oe FFU ae Pays ctesbiiiecinicdieaceachc ane 14
Haddon v Hemingway, 39 Mich 615,
616 and 618-619 (1878)... cooocceceeeeeeecc ccc 15
Hart v Detroit, 416 Mich. 488, 501-504:
SSE NW.28 438 (1962)... cinceceveaecoseececceses...... 25
IN THE MATTER OF Determination of a
Lake Level for the Waters of Bambi Lake.
5" Circuit No. 00-005032-CZ
Michigan Court of Appeals No., 244794......... é, 10, 11, 12.
sons disseeeheshahintldeeydacthev sens binciunentios 14, 20, 24, 27, 28
In re Van Ettan Lake, 149 Mich. App. 517,
922-523; 386 N.W.2d 572 (1986)........................ 16-17
Jeness v Smith, 58 Mich 280, 285:
Ce RUE WE Wis esis ie 15
Kampf v Kampf, 237 Mich. App. 377, 381-382:
603 N.W.2d 295 (1999) ......000....cccccccceeeeecccee.. Anu
Kraft v Miller, 314 Mich 390, 393, 463;
CP CORIO PF AUB Sigs scenes prinvenvoveneecdevececedce. 15
vi
WI, v00ciscinnthssncunesenanseceveeuneeneenineeannell Page No
Koopman v Blodgett, 70 Mich 610, 618-619;
SO Bree Re CR vacchinvevaerssessdeverseueeseen 15
Missouri P. R. Co. v Nebraska,
SOG US. BGG, Coe ian std anocabectdcccnbumesneaeen 3, 25, 26
Monroe v Carter, 167 Mich 325, 327-328; ................. 15
AS2 NW ICES (IGE Bo cisisctvedctccitemeeeee 15
Mumaugh v McCarley, 219 Mich 641, 646-647; 558
OWE GSS CI ini ccc cascnnicceiststanncsqueueeee
Niles v. Meeker, 219 Mich. 361,
367-SGR; LGD I. We. Gere CD atsdcvactishinkansemeerns 15-16
Peterman v Dep't of Natural Resources,
446 Mich 177, 184, 187, 193, 194-195, 203, 205-206;
S21 NW.20 GOO (IDOI sions cs sccinsnssnsscavneenine 13, 14, 15
Standard Industries, Inc. v. Michigan
Department of Transportation,
183 Mich App 53, 54 N.W.2d 417; (1990)..............0...22
Stuart v Defrost Finnish Co-op. Summer Camp Assn.,
277 Mich 144, 151; 269 NW 122 (1936).................088 14
Thomas v Steuernol, 185 Mich. App. 148, 155;
460 NW .28 STE (UGG os ocsscssickncin cance vesenteaececneel 14
Winchell v Clark, 68 Mich 64, 75; 35 NW 907 (1888)....14
Yee v Shiawassee Co Bd of Comm'rs, 251 Mich.
App. 379, 383- 391, 393, 399-400; 651 N.W.2d
156 (RUBE. « .+s0skssrsceeeael 1, 2, 4-10, 10, 13, 15, 16
+209 hha Ak uke 18, 20, 21, 22, 23, 24, 25, 26, 27, 28
Yee v. Shiawassee County Bd. of Comm'Rs, 468 Mich. 852;
658 N.W.2d 491; 2003 Mich. LEXIS 277, February 28,
GODS, LOCKE, ..«.. «icecexien0agnentnpaetieahaakeghieenaenneaale l
Yee v. Shiawassee County Bd. of Comm'rs, 664 N.W.2d
212; 2003 Mich. LEXIS 1194, June 12, 2003, Decided..1, 2
Vii
Constitutional Law
Wd viv ehvbdaterviniasitincssteincigithaserubeatisna: dit Page No.
Ne aE 1, 3, 20, 26, 27, 28
Ud. Cotemt, Aas SIV... occ cccoesceeeces se. 1, 3, 20, 21, 24, 26, 28
Michigan Statutes
MCL § 213.52; MSA § 8.265(2)........ 13, 23-24, 24, 26, 28
The Natural Resources and Environmental
Protection Act, Act 451 of 1994 and Act 57,
58, 59, 60 and 71 of 1995,
PART 307. INLAND LAKE LEVELS MCLA §§
324.30701; MSA § 13A.30701 et seq (ILLA)
iadaskuhdsdtueuientine shkétiees 1, 12, 13, 15, 16, 18, 23, 24, 26, 28
PART 315. DAM SAFETY, of the NREPA, MSA §
MCL § 324.31501; MSA § 13A.31501 et seq .............. 18
MCL § 324.31504(5); MSA § 13A.31504(5)............... 19
324.31523; MSA § 13A.31523 et SeQ.....ecccccccccececeeee 19
Court Rules United States Supreme Court Rules
Supreme Court Rule 10(c) 2.2.00... .00ccccececccceecccceceeee. 2
Supreme Court Rule 13(1)..............0cccccccceccceececese.....2
Supreme Court Rule 14(1)(h) (ii). ............................. 2
Supreme Court Rule 29(4)(b) ...........0.cccccc00ce000--e 2
Supreme Court Rule 41.................c.cccccssssccsseseeccee 26
Supreme Court Rule 45.................cccccccsssscceesees 26, 27
Viii
Vili
Michigan Court Rules
SE shkundunbastonieysenssadenbashakekubeveumidanl Page Number
SERIE siivislibiicncciemicknebainasieecnpinhhenabeniiee cuales 10
SE EEE igakcnis sussieietesncknsiedacsnenstibciamianeuaibenaie i)
ee a casukcensusbavsniwecsencdbbenekenseeuabcedgniicanial 7
eR cessncnvediwcnkeinndesiihexmmesauennedeseatats 10
ae ne IR 0 viis stnranwbaxnabicuvonbstchitasaneeeboueneds 7
GE Sik PIR Co tiivivianennsnssnenccracionsnnibeneasinence 7,9
SL GE inc snwinntickshuaitaaenbbiunineniakenmebnanchicn aa 10
ST icirs sasckdinscctnciunaennuleganbiatndaasabaentaniats 13
NE I idintnchessessieiseshansecibinnsdibiebinnaaleiiayan 13
IT I ikadessiniicnndchsnedipevntieriovesenbusentonall 10
SC OUD ta aksithinvedacsedgdbabeenmnccomeninnetes 17-18
RE le Wil vvdcevernsnbsnecancccknederkdanestaepaves 11, 26, 28
Citations of the official and unofficial reports
Yee v Shiawassee Co Bd of Comm'rs, 251 Mich. App. 379,
383- 391, 393, 399-400; 651 N.W.2d 756 (2002)
Yee v. Shiawassee County Bd. of Comm'Rs, 468 Mich. 852;
658 N.W.2d 491; 2003 Mich. LEXIS 277, February 28,
2003, Decided
Yee v. Shiawassee County Bd. of Comm'rs, 664 N.W.2d
212; 2003 Mich. LEXIS 1194, June 12, 2003, Decided
| Statement basis jurisdiction:
On May 21", 2002 the Court of Appeals issued Yee v
Shiawassee Co Bd of Comm'rs, 251 Mich. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002).
Petitioner filed a timely Motion and Brief for Rehearing
in Yee, id on June 11, 2002. The Court of Appeals denied
the Motion for Rehearing in Yee, id on July 18, 2002,
Appendix page 55-56.
The Petitioner filed a timely Application for Leave to
Appeal. The Michigan Supreme Court declined to consider
an application for leave to appeal. Yee v. Shiawassee
County Bd. of Comm'Rs, 468 Mich. 852: 658 N.W.2d 491;
2003 Mich. LEXIS 277, on February 28, 2003, Appendix
pages 56-57.
Petitioner filed a timely motion for reconsideration in
Yee, id, on March 21, 2003. The Michigan Supreme Court
denied reconsideration for Yee v. Shiawassee County Bad. of
Comm'rs, 664 N.W.2d 212; 2003 Mich. LEXIS 1194, June
12, 2003, Decided, Appendix page 57-59.
The affirmation in Yee, id did in fact move private
riparian property on private lakes from the domain of
deeded property rights into the domain of the The Natural
Resources and Environmental Protection Act, Act 451 of
1994 and Act 57, 58, 59, 60 and 71 of 1995, Part 307,
Inland Lake Levels, MCLA §§ 324.30701: MSA §
13A.30701 et seq, hereinafter the ILLA.
The affirmation in Yee, id did in fact render private
riparian property subject to condemnation without
compensation for the private use of other riparian owners.
The Michigan Supreme Court has allowed the affirmation
in Yee, to extend the reach of the ILLA (Inland Lake Level
Act) from navigable waters and public lakes to private
lakes with no public access. The ILLA and Yee, id permit
condemnation of private riparian land for the private use of
other riparian owners with no public purpose or use in
violation of the U.S. Const, Am V and IV and precedent
established by the United States Supreme Court. This is a
major intrusion of state power over private property. This
intrusion potentially sets precedents in all 50 states. It sets
precedent to private lakes in the states that were formerly
the Northwest Territories, i.e. Michigan.
The United States Supreme Court has jurisdiction over
Yee, id pursuant to Supreme Court Rule 10(c) and 13(1) as
this petition and proof of service is filed within 90 days of
6-12-2003, the date the motion for reconsideration was
denied in the in Yee, id.
The Michigan Court of Appeals, hereinafter the COA did
reference a “companion case” on May 21%, 2002 in, Yee v
Shiawassee Co Bd of Comm'rs, 251 Mich. App. 379, 387-
388: 651 N.W.2d 756 (2002), hereinafter “in re Bambi
Lake”:
Upon completion of this study in April 2000, the board
directed the county {251 Mich. App. 388} attorney to
commence an action in the Shiawassee Circuit Court
"to set the water surface elevation level at Bambi Lake
at 800.67 feet." The county attorney initiated such ~
action on June 13, 2000. According to the parties, that
matter is currently pending in the Shiawassee Circuit
Court, (IN THE MATTER OF Determination of a Lake
Level for the Waters of Bambi Lake, 35" Circuit No.
00-005032-CZ, 06-14-1999, Michigan Court of
Appeals No., 244794, hereinafter be referred to as “in
re Bambi Lake”)
The United States Supreme Court has jurisdiction over
“in re Bambi Lake” as a “companion case” pursuant to
Supreme Court Rule 14(1) (h) (ii).
Court Rule 29(4)(b) does not apply.
The constitutional provisions
United States Constitution, Amendment V:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation.
United States Constitution, Amendment XIV:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
First English Evangelical Lutheran
Church v County of Los Angeles, 482 U. S.
304 (1987):
Cincinnati v Vester, 281 U.S. 439 (1930):
Missouri P. R. Co. v Nebraska, 164 U. S. 403, (1896)
A concise statement of the case
Petitioner relies upon the statement of the case rendered
by the Michigan Court of Appeals in, Yee v Shiawassee Co
Bd of Comm'rs, 251 Mich. App. 379, 383- 391; 651 .W.2d
756 (2002):
I. Basic Facts and Procedural History
| These matters arise from a dispute regarding the
| water level of Bambi Lake,’ an impoundment of water
created following the construction of a dam along a
branch of Spring Hollow Creek in southern Shiawassee
County. The dam was constructed in the early 1970s by
defendant Forrest Cummings, pursuant to a permit
issued by the state department of conservation. “ After
formation of the lake, Cummings sold off parcels
fronting the water to several of the named defendants in
these actions or their predecessors in interest. Plaintiff
purchased one such lot, with an existing residence, in
1986. According to plaintiff, at the time he purchased
the home its basement "was in good repair," with "no
evidence of dampness, leakage, or other significant
damage to the basement floor." Beginning in 1994,
however, the floor of plaintiffs basement began to
"heave and crack" as a result of {251 Mich. App. 384}
increased hydrostatic pressure beneath the home
prompted by a rise in the lake's water level, which is
controlled by a spillway located at the southwest end of
the lake.* According to plaintiff, from 1970 to 1993 the
lake's water level had been consistently maintained at
799 feet above sea level, the "crest elevation" cited in
the dam permit awarded Cummings in 1970. However,
beginning in 1994, the lake's water level began to rise,
resulting in the encroachment of lake water onto
portions of plaintiffs property that were previously dry
and in damage to trees and other vegetation on his
property. To alleviate these problems, as well as the
resulting damage to his home, plaintiff removed the top
spillway stop log in order to lower the lake's level to its
previous elevation of 799 feet. Shortly thereafter,
however, owners of property surrounding the lake
replaced the stop log and placed a pad lock on the
spillway, thereby setting the lake's level at a permanent
elevation of approximately 800.95 feet above sea level.
In August 1995, plaintiff filed suit (Docket No.
226614) alleging that defendants had conspired to
operate the spillway in a manner calculated to maintain
Bambi Lake at a level detrimental to his property.‘
Plaintiff sought relief in the form of monetary damages
for trespass and additionally requested that the trial
court issue an injunction requiring the defendant
property owners to reduce the lake's level to a {251
Mich. App. 385} crest elevation of 799 feet above sea
level, in accordance with the 1970 dam permit.
In February and June 1998, defendants moved to
bifurcate trial of plaintiff's claims in the interest of
judicial economy, arguing that the damages issue would
not need to be decided unless it was first determined
that the lake was being maintained at an inappropriate
level. The trial court agreed and, in July 1998, entered
an order bifurcating the lake level issue from that of
damages. The portion of the case pertaining to
monetary damages was nevertheless submitted to
mediation in November 1998, pursuant to MCR 2.403,
with trial on the lake level issue scheduled to take place
before the bench on January 20, 1999. On January 7,
1999, the mediation clerk issued notice advising that all
parties had accepted the mediation evaluation in favor
of the plaintiff. The following week the trial court was
informed that defendant Forrest Cummings had died on
January 8, 1999.
On January 18, 1999, issues concerning the trial
court's authority to establish a legal lake level were
raised in a trial brief submitted by intervening plaintiff
Michigan Department of Environmental Quality
(DEQ). ° In its brief, the DEQ argued that, contrary to
plaintiff's position, the dam permit awarded to Forrest
Cummings in April 1970 under the former dam
construction approval act ® did not establish an
enforceable lake level, because establishment of a {251
Mich. App. 386} legal lake level was outside the scope
of the act. Rather, the department argued, the exclusive
method for establishing a legal lake level is through the
procedures outlined under Part 307 of the Natural
Resources and Environmental Protection Act
(NREPA). ’ Because those procedures had not been
followed, the department argued, the trial court had no
authority to act in the manner requested by plaintiff.
The department further argued that, even if the 1970
dam permit could be found to have established an
enforceable lake level, because Cummings was now
deceased, there was no one left against whom the trial
court could enforce the permit requirements.
Accordingly, the DEQ item that the matter be
dismissed.
Several defendants adopted the arguments of the
DEQ in motions for summary disposition filed on
January 19, 1999. On January 20, 1999, the parties
assembled for trial on the lake level issue. Before trial,
however, the court heard argument on the issues raised
by the DEQ in its trial brief. After hearing the
arguments of all parties, the court determined that
summary disposition of plaintiffs claims was
appropriate. In doing so, the trial court ruled (1) that the
1970 dam construction permit did not establish a legal
lake level, (2) that even if the permit had operated as
such, the permittee had passed away and thus there was
no one against whom to enforce such a {251 Mich.
App. 387} level, (3) that the determination of a lake
level for purposes of assessing damages liability was
moot in light of mediation acceptance, and (4) that it
had no jurisdiction to determine and impose a legal lake
level in the absence of an action filed pursuant to Part
307 of the NREPA. The trial court further suggested
that if the parties wished to establish a legal lake level,
they should petition the Shiawassee County Board of
Commissioners to do SO “as soon as possible."
An order granting summary disposition under MCR
2.116(C)(4), lack of subject-matter jurisdiction, and
MCR 2.116(C)(8), failure to state a claim on which
relief could be granted, was entered in favor of all
defendants on February 3, 1999. The order expressly
provided that the parties could file judgments pursuant
to mediation acceptance following entry of that order.
Counsel for the various parties prepared judgments
pursuant to MCR 2.403(M), the last of which was
entered on February 18 1999. Plaintiff. however,
apparently refused to accept the judgment proceeds or
to sign a satisfaction of judgment, and thus each of the
defendants was required to pay the judgment proceeds
to the county clerk, who issued the necessary
satisfactions of judgment.
Several days after dismissal of plaintiff's suit, those
defendants who were riparian owners on Bambi Lake
petitioned the Shiawassee County Board of
Commissioners to establish a normal lake level for
Bambi Lake under Part 307 of the NREPA. Acting on
this petition, the Shiawassee County Board of
Commissioners, on April 15, 1999, directed that an
engineering study be conducted in order to determine
the historic water surface elevation of the lake. Upon
completion of this study in April 2000, the board
directed the county {251 Mich. App. 388} attorney to
commence an action in the Shiawassee Circuit Court
“to set the water surface elevation level at Bambi Lake
at 800.67 feet." The county attorney initiated such
action on June 13, 2000. According to the parties, that
matter is currently pending in the Shiawassee Circuit
Court.
On August 6, 1999, plaintiff filed a second action
(Docket No. 226612), naming the Shiawassee County
Board of Commissioners, the Shiawassee County Drain
Commissioner, and George Braidwood, Jr., as
defendants. ® The first amended complaint, under which
this action was litigated, sought to enjoin the county
commissioners from setting a legal water level for
Bambi Lake. In bringing this action, plaintiff asserted
that the issue of the lake level was properly before the
trial court in the 1995 action and that the dam permit set
the legal lake level at 799 feet above sea level, and
demanded that the trial court issue an order declaring
that the legal lake level had been set at 799 feet above
sea level. Plaintiff further sought damages for the
flooding of his property, as well as an injunction ‘to
abate the flooding."
On November 22, 1999, plaintiff filed a third action
relating to the water level of Bambi Lake (Docket No.
226613). ’ Although filed as a claim to quiet title and
determine interests in land, the relief sought by plaintiff
was in essence the same as that sought in the previous
two actions, i.e., an order declaring that the “lawful
normal" elevation of Bambi Lake, as established by the
1970 dam permit, was 799 feet above {251 Mich. App.
389} sea level, and that no county agency had authority
to alter that level.
Each of the defendants in the second case, and a
majority of those in the third, moved for summary
disposition under various theories, including res
judicata stemming from the trial court's previous ruling
that the 1970 dam permit did not establish a legal lake
level and plaintiff's acceptance of mediation regarding
any damages related to the flooding of his property.
9
The county defendants further argued that summary
disposition of plaintiff's request to enjoin the board of
commissioners from Seeking to establish a legal lake
level under Part 307 of the NREPA was appropriate,
because the board had not yet filed the requisite petition
in the circuit court seeking to do so and, therefore, there
was no basis for an injunction at that time. '° At a
hearing on these motions, plaintiff argued that because
the issue of the lake level was not decided in the
previous action, res judicata did not apply to bar his
subsequent suits. Plaintiff further argued that, because
Bambi Lake is a private lake rather than a public lake,
the Shiawassee County Board of Commissioners did
not have authority to seek establishment of a legal lake
level for Bambi Lake and that it therefore did not
matter that the board had not yet filed a petition in the
circuit court seeking to do so. The trial court disagreed,
finding that an _ injunction against the county
commissioners was premature and that plaintiff had
nonetheless failed to meet the requirements for
injunctive relief. Accordingly, the trial court dismissed
plaintiff's {251 Mich. App. 390} request for injunctive
relief under MCR 2.116(C)(8). The trial court further
found that, in light of its previous ruling that the 1970
dam permit did not establish a legal lake level, as well
as plaintiff's acceptance of mediation, any subsequent
claims for damages or equitable relief based on the
elevations cited in that permit were barred by res
judicata and thus summary disposition under MCR
2.116(C) (7) was appropriate.
In September 1999, plaintiff attempted to revive the
litigation in Docket No. 226614 by filing a motion for
postjudgment relief requesting that the trial court
reverse its order granting defendants summary
disposition and allow plaintiff to substitute a
representative for the deceased Forrest Cummings and
iil
10
add any other party necessary to allow that action to
continue. Plaintiff asserted that he was entitled to such
relief under MCR 2.612(C), because the defendants had
perpetrated a fraud on the court by representing that the
action could not continue upon Cummings death
despite the right to substitute a representative party
provided for under MCR 2.202 and MCR 2.207.
Plaintiff further argued that he was denied due process
because MCR 2.116(B)(2) does not permit a hearing on
a motion for summary disposition until twenty-eight
days after service of the pleadings on the nonmoving
party. After hearing argument from the parties, the trial
court denied the motion, finding no fraud to have
occurred. Plaintiff subsequently sought reconsideration
of the motion, which was ultimately denied.
While reconsideration was pending in the trial court,
plaintiff filed a claim of appeal in each of these three
cases. This Court consolidated the appeals and {251
Mich. App. 391} ordered that plaintiffs claims be
treated as if on leave granted."
The Michigan Court of Appeals made reference to the
“companion case” in Yee supra, pages 387-388:
Upon completion of this study in April 2000, the
board directed the county {251 Mich. App. 388}
attorney to commence an action in the Shiawassee
Circuit Court "to set the water surface elevation level at
Bambi Lake at 800.67 feet." The county attorney
ini’ \ted such action on June 13, 2000. According to the
parties, that matter is currently pending in the
Shiawassee Circuit Court.
The “companion case” is, IN THE MATTER OF
Determination of a Lake Level for the Waters of Bambi
Lake, 5" Circuit No. 00-005032-CZ, hereinafter “in re
Bambi Lake”.
On March 19, 2001 the judge in “in re Bambi Lake”
denied a motion to transfer (Appendix Pages 59-60) the
case to Judge Judith Fullerton pursuant to MCR 8.11]
Assignment of Cases: :
(D) Actions Arising Out of Same Transaction or
Occurrence. Subject to subrule 8.1 10(C),
(1) if one of two or more actions arising out of the
same transaction or occurrence has been assigned to a
judge, the other action or actions must be assigned to
that judge;
(2) if an action arises out of the same transaction or
occurrence as a civil action previously dismissed or
transferred, the action must be assigned to the judge
to whom the earlier action was assigned;
(3) the attorney for the party bringing the other action
under subrule (1) or the new action under subrule (2)
Shall notify the clerk of the fact in writing in the
manner prescribed in MCR 2.113(C)(2). An attorney
who knowingly fails to do so is subject to disciplinary
action.
(4) The chief judge may reassign cases, other than
those encompassed by subrule 8.111(D)(1), in order
to correct docket control problems resulting from the
requirements of this rule.
The judge in “in re Bambi Lake” conducted a trial in
June of 2002, hereinafter “the trial”.
At “the trial” in June of 2002 in “in re Bambi Lake” Mr.
Protasiewiecz testified that Bambi Lake -would be higher
and lower at different times, trial transcript, page 136,
(Appendix Page 62).
Mr. Protasiewiecz testified that part of Appellant William
R. Yee’s property would be flooded at the proposed normal
elevation of Bambi Lake at 800.67 feet above sea level,
trial transcript pages 164-165, (Appendix Page 62-63).
1]
1]
12
Mr. Protasiewicz testified in “in re Bambi Lake” that
flooding Appellant's property wouid not be a detriment
because Appellant would then own the part of the lake that
flooded Appellant's property, trial transcript pages 346-
349. (Appendix Pages 63-66).
Mark Vanraemdonck was a surveyor and testified for
‘respondents in “in re Bambi Lake” that at no time-did he
knciw what the proper elevation of Bambi Lake was, trial
transcript page 410, (Appendix Pages 66).
At “the trial” Petitioner submitted deeds and surveys filed
with the Register of Deeds. In 1974 and 1979 Plaintiff's
predecessors in interested purchased 5281 Lake Drive,
Owosso, MI 48867 from Forrest and Eva Cummings in two
parcels, trial transcript pages 404, (Appendix Page 66-67)
and 447-450, (Appendix Pages 67-70). The chain of title
shows Petitioner's property to “the water's edge” on a
“private lake”, trial transcript page 450, (Appendix pages
69-70).
Petitioner's property (known as 5281 Lake Drive) was
surveyed on 1974 and 1978 and the surveys filed in the
Shiawassee County Register of Deeds office, “in re Bambi
Lake” trial transcript pages 399-400, (Appendix pages 70-
71) and 451, (Appendix page 71-72) and accepted by the
court at page 407 (Appendix page 72) as fact. At page 408
(Appendix page 73) of the trial transcript Mr. Davison
conceded that nowhere was there 4 reservation by the seller
to raise or lower Bambi Lake.
Appellant testified in “in re Bambi Lake” that starting
around 1994 Bambi Lake started revolving around 801 feet
above sea level. Prior to that Appellant observed that
Bambi Lake was unstable around 799.0 feet above sea
level, trial transcript, page 510, (Appendix page 73-74).
After the attorneys made closing arguments the trial
judge in “in re Bambi Lake” determined that the ILLA aka
the Inland Lake Level Act, allowed private property to be
flooded without a claim of public purpose, proof of
condemnation, trial transcript, page 612:
Third, any taking in connection with the establishment
of a lake level is incidental to a broader public purpose
and, I don't think, under current Federal Constitutional
takings law would constitute taking for purposes for the
Fifth Amendment. But that issue, as | say, has been
addressed already by the Court of Appeals.
The trial judge then ordered that Bambi Lake be set at
800.67 feet above mean sea level, Appendix Pages 60-61.
On 09/20/02 Petitioner filed a motion for a new trial and
relief from a judgment pursuant to MCR 2.611 & MCR
2.612 and a trial pursuant to MCLA § 324.30710; MSA §
13A.30710; MCL § 213.52; MSA § 8.265(2). The trial
judge denied motion on 10/29/2002, Appendix Pages 61-62
A direct and concise argumes<
Prior Law: Property Rights the Common Law
This case will resolve a dispute regarding riparian
_ property rights on a private inland lake (Bambi Lake),
which has no navigable inlet cr outlet and no public access.
Stare decisis controlled law in Michigan prior to 1990,
Bott v. Natural Resources Comm'n, 415 Mich. 45, 77-78,
327 N.W.2d 838 (1982):
Prior to Yee v Shiawassee Co Bd of Comm rs, 251 Mich.
pp. 379, 383- 391, 393, 399-400: 651 N.W.2d 756 (2002)
riparian rights were circumscribed by common law
concepts of the public interests in a navigational servitude
and fishery, Peterman v Dep't of Natural Resources, 446
Mich 177, 194-195; 521 N.W.2d 499 (1994):
Bambi Lake is a private lake and is not navigable. It is
not subject to any public interest pursuant to Bott v Natural
Resources Comm, 415 Mich 45, 60; 327 NW2d 838 (1982).
Prior Law: Riparian Property Rights Under Deeds
Petitioner owns riparian property that may not be flooded
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pursuant to the deed of title, Fifth Amendment of the
United States Constitution and art 10, § 2 of the Michigan
Constitution, Mumaugh v McCarley, 219 Mich App 641,
646-647; 558 NW2d 433 (1996).
In Michigan property rights are found in deeds where any
ambiguity is construed against the seller in favor of the
buyer. In “in re Bambi Lake” the deeds in trial exhibit 2-X
were Clarified by surveys filed in the office of the county
register of deeds, trial Exhibits 2-V and 2-W. The buyer
has a reasonable expectation that the seller will maintain
Bambi Lake at the elevation that occurred at the time of the
certified surveys filed with register of deeds office pursuant
to Thomas v Steuernol, 185 Mich. App. 148, 155; 460
N.W.2d 577 (1990).
The surveys do not control the actual shape of the
property along the shoreline, which is described as
meandering and may change with erosion and reliction,
Peterman v Dep't of Natural Resources, 446 Mich 177,
184, 193; 521 N.W.2d 499 (1994), id footnote 21. In fact
the 1978 survey shows one foot of increase of the property
to the east (reliction) and into Bambi Lake as compared to
the 1974 survey, putative reliction assuming the sellor and
lake owner maintained Bambi Lake at 799.0 feet above
mean sea level.
The deed however controls the elevation of Bambi Lake
and Respondents may not claim a natural elevation for
Bambi Lake as the lake is controlled by the owner's
operation of a dam pursuant to Gillespie v Dunn 246 Mich
415, 419; 224 NW 374 (1929).
The seller may not raise Bambi Lake pursuant to, Thomas
supra page 155 and Stuart v Defrost Finnish Co-op.
Summer Camp Assn., 277 Mich 144, 151; 269 NW 122
(1936).
Petitioner has a right to abate flooding pursuant to
Winchell v Clark, 68 Mich 64, 75; 35 NW 907 (1888).
Petitioner has a right to abate flooding pursuant to
Koopman v Blodgett, 70 Mich 610, 618-619: 38 NW 649
(1888):
Respondants may not raise Bambi Lake and flood
Petitioners property pursuant to Kraft v Miller. 314 Mich
390, 393, 403; 22 NW2d, 857 (1946):
The county commissioners may not flood petitioner's
property pursuant to Peterman v Department of Natural
Resources, 446 Mich 177, 184, 187, 203, 205, 206: 521
NW2d 499 (1994).
Furthermore, such nuisances may be halted by the
issuance of an injunction, Peterman v Dep't of Natural
Resources, 446 Mich 177, 205-206; 521 N.W.2d 499
(1994)
All possible parties must be made a party to the action to
quiet title pursuant to Jeness v Smith, 58 Mich 280, 285: 25
NW 191 (1885).
Petitioner's failure to bring everyone who may interfere
with property rights, including state agencies, into a
complaint to quiet title will cause the action to fail pursuant
to Haddon v Hemingway, 39 Mich 615, 616 and 618-619
(1878).
Siate agencies and officers are subject to an action to
quiet title pursuant to Monroe v Carter, 167 Mich 325,
327-328; 132 NW 1023 (1911):
Prior Law Permitted Suit to Protect Property
Under prior law Petitioner could in fact obtain
jurisdiction to establish a lake level upon the basis of
deeded property rights, Arnold v Ellis, 5 Mich App 101,
109-112; 145 NW2d 822 (1966).
Prior Law Applied the ILLA to Public Waters
Prior to the Yee case the ILLA did not apply to private
inland lakes unless they were navigable and there was a
public purpose pled and proven pursuant to Niles v.
Meeker, 219 Mich. 361, 367-368: 189 N.W. 207 (1922):
15
15
{219 Mich. 367}The authority given the board of
supervisors by Act No. 202 is limited to determining
"the natural height and level of the water" of this lake,
and to “acquire, in the name of the county, by gift or
purchase, or by condemnation proceedings, any
existing dam which may affect the level of the waters in
such lake, and all sites for dams or embankments or
other lands," etc., needful or convenient to carry out *he
purposes of the act, which are to aid navigation or {21°
Mich. 368} promote public health. A _ definite
determination of need for that purpose and of the
normal shore line or "natural height and level" of such
lake is made the basis of all which follows. Not only
did the board of supervisors fail to find the natural
level, but it made no declaration that any action to that
end was necessary “in order to improve or maintain
navigation thereon, or to promote public health or
welfare." When the petition was presented to the board
it turned the matter over to a committee and later
simply "approved" the report of such committee. The
report contained no suggestion of what the ‘natural
height and level" of the lake was, nor its ordinary,
normal average or mean level, at any time or for any
length of time, and recommended an arbitrary, artificial
level higher than that found at a certain date by an
engineer whose report shows no attempt on his part to
determine the natural level. The only reason given by
the committee in its report for recommending such
arbitrary
Prior to the Yee case the ILLA did apply only to public
lakes pursuant statute and In re Van Ettan Lake, 149 Mich.
App. 517, 522-523; 386 N.W.2d 572 (1986):
The expense of determining the normal height and
water level of any public inland lake, the expense of
constructing and maintaining any dam, together with
the cost and expense of acquiring lands and other
property by condemnation necessary thereto, may be
assessed, levied and collected upon the taxable property
within the special assessment district." MCL § 281.79:
MSA § 11.300(19).
Section 19 in its original form provided that the cost of
constructing and maintaining a dam under the 1961 act
“may be assessed, levied and collected upon the taxable
property of the county, the same as other general taxes
are assessed, levied and collected in such county”.
Financing through special assessment districts was
authorized pursuant {Mich. App. 523} to a 1969
amendment. We think that if the Legislature had
intended to authorize the creation of special assessment
districts only where the county sought to change a
previous determination, build a new structure or
determine a lake level for the first time, it could easily
have said so in the 1969 amendment.
Respondent's jurisdictional argument is frustrated not
only by the terms of the statute but by the case law as
well. Respondent's reliance on Niles v Meeker, 219
Mich 361, 368; 189 NW 207 (1922), is misplaced
since, in that case, the Supreme Court held that the
county had no authority under the predecessor statute to
construct a proposed dam because it had failed to first
obtain a determination of the natural height and water
level and had failed to substantiate on the record the
benefit of the dam to the navigability of the lake or to
the public heaith or welfare of the county. Petitioner
met both requirements in the instant case.
Michigan Now Changes Prior Law
In November of 1990 Michigan courts altered property
rights by a change in court rule, MCR 7.215(I)(1),
(I) Resolution of Conflicts in Court of Appeals
Decisions.
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(1) Precedential Effect of Published Decisions. A panel
of the Court of Appeals must follow the rule of law
established by a prior published decision of the Court of
Appeals issued on or after November 1, 1990, that has
not been reversed or modified by the Supreme Court, or
by a special panel of the Court of Appeals as provided
in this rule.
In 2002 Michigan courts further altered property rights
pursuant to , Yee v Shiawassee Co Bd of Commrrs, 251
Mich. App. 379, 399-400; 651 N.W.2d 756 (2002),
In reaching this conclusion, we recognize that a panel
of this Court previously considered the statutory
language now found in MCL 324.30702(1) and
concluded that, by providing that the county “may” —as
opposed to “shall”—seek to initiate proceedings to
determine the normal level of an inland lake, the
Legislature did not foreclose a private cause of action
for {251 Mich. App. 400} this purpose.’ The panel in
Arnold, however, failed to consider the comprehensive
nature of the statutory scheme employed by the
Legislature or the public purpose in devising that
scheme, and we therefore reject its conclusion that suit
by an individual is not foreclosed. In any event, because
that case was decided before November 1, 1990, we are
not bound to follow the decision.””
The public safety is protected by the Dam Safety Act
Bambi Lake is a private lake, it is not navigable and as no
public access. It is not necessary or reasonable to invoke
PART 307. INLAND LAKE LEVELS, MCLA §
324.30701; MSA § 13A.30701 et seq. as the public safety
is adequately protected by Part 315 of the NREPA, DAM
SAFETY.
The public safety is protected by PART 315. DAM
SAFETY, of the NREPA, MSA § 324.31501; MSA §
13A.31501 et seq. The public safety is protected
19
specifically by the Emergency Action Plan, MCLA §
324.31523; MSA § 13A.31523
(1) An owner shall prepare, and keep current,
emergency action plans for all high and significant
hazard potential dams owned by that person.
(2) Emergency action plans shall be submitted to the
department.
(3) The applicable county or local emergency
management coordinators shall review for consistency
emergency action plans with the county or local
emergency operations plan prior to submission of those
plans to the department.
(4) An emergency action plan shall be consistent with
the applicable provisions of the affected county or local
emergency operations plans and_ the Michigan
emergency preparedness plan as developed rursuant to
the emergency preparedness act, Act No. 390 of the
Public Acts of 1976, being sections 30.401 to 30.420 of
the Michigan Compiled Laws.
(5) Emergency action plans shall include, but not be
limited to, the name, address, and telephone number of
the person, and of an alternate person, responsible for
operation of the dam; the name and telephone number
of local emergency Management coordinators; and a
listing of occupied facilities, buildings, and residences
that may be threatened with flooding due to a failure of
the dam.
The “owner” would include any of the parties who have |
acted to regulate the elevation of Bambi Lake, pursuant to
MCL § 324.31504; MSA § 13A.31504
(5) "Owner" means a person who owns. leases,
controls, operates, maintains, manages, Or proposes to
construct a dam.
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20
Michigan Changes to Petitioner’s Property Rights
The court of appeals referred to the “in re Bambi Lake’,
Yee supra, pp 388-399
Several days after dismissal of plaintiffs suit, those
defendants who were riparian owners on Bambi Lake
petitioned the Shiawassee County’ Board of
Commissioners to establish a normal lake level for
Bambi Lake under Pat 307 of the NREPA. Acting on
this petition, the Shiawassee County Board of
Commissioners, on April 15, 1999, directed that an
engineering study be conducted in order to determine
the historic water surface elevation of the lake. Upon
completion of this study in April 2000, the board
directed the county {251 Mich. App. 388} attorney to
commence an action in the Shiawassee Circuit Court
"to set the water surface elevation level at Bambi Lake
at 800.67 feet."
Setting Bambi Lake at 800.67 feet above mean sea level
will operate to condemn part of Appellant/Respondent’s
property at 5281 Lake Drive, Owosso, MI 48867 by
flooding, Appendix page 62.
Setting Bambi Lake at 800.67 feet above mean sea level
will flood petitioner's property for the private benefit of
respondent riparian owners. Bambi Lake is a private lake
with no navigable inlet or outlet, no public access and no
possible public purpose within the boundaries of the U.S.
Const, Am V and XIV. Federal law prohibits condemnation
of part of 5281 Lake Drive by flooding for the private use
of the other riparian owners pursuant to City of Lansing v
Edward Rose Realty, Inc., 192 Mich. App. 554- 555; 481
NW2d 795 (1992):
Both the Fifth Amendment of the federal constitution
and Const 1963, art 10, § 2 prohibit the taking of
private property without just compensation. Any
condemnation must serve a public purpose or public
21
necessity, or the condemnation is invalid. Pere
Marquette R Co v United States Gypsum Co, 154 Mich
290, 297; 117 NW 733 (1908). When the power of
eminent domain is exercised in a way benefiting
specific and identifiable private interests, a court
inspects with heightened Scrutiny the claim that the
public interest is the predominant interest being
advanced. Pole-town Neighborhood Council v Detroit,
410 Mich 616, 634-635; 304 NW2d 455 (1981). See
also Center Line v Chmelko, 164 Mich App 251; 416
NW2d 401 (1987). The public benefit must not only be
the primary benefit conferred by the condemnation, but
must also be "clear and significant" rather {192 Mich.
App. 555} than "speculative or marginal." Poletown,
supra, pp 634-635.
Michigan courts with Yee now violate U.S. Const, Am
XIV pursuant to Kampf v Kampf, 237 Mich. App. 377, 381-
382; 603 N.W.2d 295 (1999):
The federal and Michigan constitutions guarantee that
the state cannot deny people "life, liberty, or property
without due process of law." U.S. Const, Am XIV:
Const 1963, art 1, § 17. Due process, which is similarly
defined under both constitutions, Palmer v Bloomfield
Hills Bd of Ed, 164 Mich. App. 573, 576: 417 N.W.2d
905 (1987), specifically enforces the rights {Mich.
App. 382} enumerated in the Bill of Rights, and it also
provides for substantive and procedural due process.
Daniels v Williams, 474 U.S. 327, 337: 106 S. Ct. 662;
88 L. Ed. 2d 662 (1986). Procedural due process limits
actions by the government and requires it to institute
Safeguards in proceedings that affect those rights
protected by due process, such as life, liberty, or
property. See Electro-Tech, Inc v HF Campbell Co, 433
Mich. 57, 66, n 9; 445 N.W.2d 61 (1989); Dow v
Michigan, 396 Mich. 192, 202: 240 N.W.2d 450
(1976).
21
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£6
The state power of eminent domain rests upon the
necessity to take property to serve a public purpose.
Michigan may not take private property without due
process and just compensation, Standard Industries, Inc. v.
Michigan Department of Transportation, 183 Mich App
53, 54 N.W.2d 417; (1990):
It is well established that private property may not be
taken for public use without due process of law and just
compensation. Thom v State Highway Comm'r, 376
Mich 608, 613; 138 NW2d 322 (1965). A taking is said
to have occurred once a verdict is confirmed, the deed
executed, and the award paid. However, in certain
situations governmental actions may amount to a de
facto taking prior to an actual eminent domain
proceeding. Foster v Detroit, 254 F Supp 655, 662 (ED
Mich, 1966).
The mediation agreement did not
include taking petitioner's property;
The Yee case refers to a mediation agreement. Mediation
includes damages to the house and property. However the
trial court did in fact determine that it had no jurisdiction to
determine the lawful elevation of Bambi Lake, because that
could only be done under the NREPA, “(4) that it had no
jurisdiction to determine and impose a legal lake level in
the absence of an action filed pursuant to Part 307 of the
NREPA.”, Yee, supra p 387.
Damages contemplated by the mediation agreement were
damages that accrued at the time of the acceptance of the
mediation agreement and with Bambi Lake at the elevation
at the time of purchase according to rights encompassed by
the deed. The mediation agreement contemplated a separate
trial to abate flooding, not an action under the NREPA. The
damages were damages measured by Bambi Lake being
restored to its legal level under the deeded rights with no
flooding after the mediation agreement pursuant to Arnold
v Ellis, 5 Mich App 101, 109-112; 145 NW2d 822 (1966).
The mediation agreement contemplated a trial to abate
flooding and pursuant to Arnold v Ellis, 5 Mich App 101,
109-112; 145 NW2d 822 (1966) and did not consent to any
flooding after the mediation agreement. Since the court had
no jurisdiction “pursuant to Part 307 of the NREPA”, Yee.
Supra p 387, there was no jurisdiction to condemn, and no
damages contemplated in the mediation agreement by
flooding or condemnation after the time of the mediation
agreement.
Without jurisdiction to restore Bambi Lake to the level at
the time of original purchase the mediation agreement is
not properly used as res judicata for either damages or
condemnation, “a court is continually obliged to question
sua sponte its own jurisdiction over a person, the subject
matter of an action, or the limits of the relief it may afford”,
Yee, supra p 399.
The mediation agreement does not contemplate flooding
and damage after January 20, 1999, Yee, supra p 399.
Michigan Denies Petitioner Due Process
The ILLA requires that the Shiawassee County
Prosecutor and the Shiawassee County Commissioners and
the Shiawassee County Drain Commissioner arrange for
Petitioner to have a Jury Trial pursuant to:
MCLA § 324.30710; MSA § 13A.30710
Sec. 30710. If the department or the delegated
authority determines that it is necessary to condemn
private property for the purpose of this part, the
department or county may condemn the property in
accordance with the uniform condemnation procedures
act, Act No. 87 of the Public Acts of 1980, being
sections 213.51 to 213.77 of the Michigan Compiled
Laws.
MCL § 213.52; MSA § 8.265(2):
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(2) If property is to be acquired by an agency through
the exercise of its power of eminent domain, the agency
shall commence a condemnation action for that
purpose. An agency shall not intentionally make it
necessary for an owner of property to commence an
action, including an action for constructive taking or de
facto taking, to prove the fact of the taking of the
property.
The petition to set Bambi Lake at 800.67 feet was filed
on June 13, 2000, Yee supra pp 387-388.
The County Commissioners, the County Drain
Commissioner and the Shiawassee County Prosecutor
knew that Petitioner’s property would be flooded on July 8
of 1999 when Mr. Protasiewiecz surveyed Bambi Lake as
part of his preparation of an engineering study conducted to
determine the historic water surface elevation of the Bambi
Lake, Trial Transcript page 117, Appendix page 62.
Mr. Protasiewiecz testified that part of Petitioner's
property would in fact be flooded, Trial transcript page
164, appendix page 62.
When the trial court denied Petitioners motion for a jury
trial on October 29", 2002, appendix pages 61-62, the court
did in fact deny Petitioner due process rights secured by the
U.S. Const, Am XIV and MCLA § 324.30710; MSA §
13A.30710; MCL § 213.52; MSA § 8.265(2). In fact the
Shiawassee County Prosecutor and the Shiawassee County
Commissioners had a duty pursuant to; MCL § 213.52;
MSA § 8.265(2) to arrange for the jury trial.
The trial judge in the “companion case” aka “in re Bambi
Lake” did in fact deny Petitioner due process rights to a
trial by jury on the issue of damages for flooding after
January 20, 1999 and condemnation of Petitioners property
by flooding when the court set bambi Lake at 800.67 feet
above sea level.
25
Supreme Court Decisions Protect the Petitioner
The Supreme Court has ruled that there are situations
where the ultimate determination of a public purpose rests
with the court, Cincinnati v Vester, 281 US 439 (1930);
Missouri P. R. Co. v Nebraska, 164 US 403 (1896).
Petitioner asserts that this is such a case.
The Supreme Court has ruled that temporary taking
entitles petitioner to compensation, First English
Evangelical Lutheran Church v County of
Los Angeles, 482 U. S. 304 (1987). Petitioner asserts
that this is a case of temporary and permanent taking.
Petitioner asserts that this case merits consideration by
the United States Supreme Court because this case pushes
the boundaries of state authority over private property past
a public purpose. The power of the United States Supreme
Court is properly asserted in this case to limit State
Authority over private property to an actual public purpose.
Case Summary
The Michigan Court of Appeals and the Michigan
Supreme Court have denied Petitioner the right to abate
flooding of his riparian property pursuant to Arnold v Ellis,
9 Mich App 101, 109-112: 145 NW2d 822 (1966), Yee,
supra page 400.
The Michigan Court of Appeals and the Michigan
Supreme Court have imposed the mediation acceptance
upon Petitioner while contending that the trial court did not
have jurisdiction to determine the elevation of Bambi Lake.
Yee supra page 387.
Setting Bambi Lake at 800.67 feet above mean sea level
will operate to flood Petitioners property, Appendix page
62 and is a taking pursuant to Hart v Detroit, 416 Mich.
488, 501-504; 331 N.W.2d 438 (1982).
The Michigan Court of Appeals and the Michigan Supreme
Court and the Shiawassee County Circuit Court,
25
26
the Shiawassee County Commissioners, the Shiawassee
County Drain Commissioner are
a.
denying Petitioner the protection of Arnold v Ellis, 5
Mich App 101, 109-112; 145 NW2d 822 (1966);
Appendix page 43, in violation of the U.S. Const,
Am V and XIV
flooding Petitioner's property, (Bambi Lake at
800.67 feet above mean sea level), Appendix 62;
condemning petitioner's property (Appendix page
62) without the jury trial required by MCLA §
324.30710; MSA § 13A.30710; MCL § 213.52;
MSA § 8.265(2), violating First English; and
Cincinnati v Veste; and Missouri P. R. Co., supra.
condemning petitioner's property by flooding
(Appendix page 62) for private riparian owners on
Bambi Lake with no stated or proven public purpose
and violating the U.S. Const, Am V and XIV;
denying Petitioner the due process right of having
35" Circuit No. 00-005032-CZ assigned to Judge
Judith Fullerton pursuant to MCR 8.111(D) in
violation of the U.S. Const, Am V and XIV.
Relief Sought:
Petitioner respectfully requests the United States
Supreme Court
a.
to grant protections afforded by U.S. Const, Am V
and XIV; MCLA § 324.30710; MSA § 13A.30710;
MCL § 213.52; MSA § 8.265(2); and Arnold v Ellis,
5 Mich App 101, 109-112; 145 NW2d 822 (1966);
and MCR 8.111(D) and issue a Judgment Pursuant to
Supreme Court Rule 41 that Yee v Shiawassee Co Bd
of Comm'rs, ch. App. 379, 383- 391, 393, 399-400;
651 N.W.2d 756 (2002) violates U.S. Const, Am V
and XIV and prior decisions of the United States
Supreme Court; Cincinnati v Veste; and Missouri P.
R. Co., supra.
b.
to issue a mandate in the name of the President of the
United States pursuant to Supreme Court Rule 45
that the Michigan Court of Appeals and the Michigan
Supreme Court and the trial judges in Yee v
Shiawassee Co Bd of Comm'rs, ch. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002) and the
Shiawassee County Circuit Court INTHE MATTER
OF Determination of a Lake Level for the waters of
Bambi Lake, 5" Circuit No. 00-005032-CZ shall
vacate the ruling in Yee v Shiawassee Co Bd of
Comm'rs, ch. App. 379, 383- 391, 393, 399-400: 651
N.W.2d 756 (2002).
to issue a mandate in the name of the President of the
United States pursuant to Supreme Court Rule 45
that the Michigan Court of Appeals and the Michigan
Supreme Court and the trial judges in Yee v
Shiawassee Co Bd of Comm'rs, ch. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002) and the
Shiawassee County Circuit Court INTHE MATTER
OF Determination of a Lake Level for the waters of
Bambi Lake, 5" Circuit No. 00-005032-CZ shall
allow petitioner to proceed to trial under Arnold v
Ellis, 5 Mich App 101, 109-112; 145 NW2d 822
(1965).
to issue a mandate in the name of the President of the
United States pursuant to Supreme Court Rule 45
that the Michigan Court of Appeals and the Michigan
Supreme Court and the trial judges in Yee v
Shiawassee Co Bd of Comm'rs, ch. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002) and the
Shiawassee County Circuit Court INTHE MATTER
OF Determination of a Lake Level for the waters of
Bambi Lake, 5" Circuit No. 00-005032-CZ and shall
issue opinions that all of Petitioner's actions were
reasonable, not frivolous, not intended for any
unacceptable purpose including but not limited to
27
27
28
28
harassment or annoyance and shall issue orders to
rescind all costs and all sanctions payable by
petitioner to respondents.
to issue a mandate in the name of the President of the
United States pursuant to Supreme Court Rule 45
that the Michigan Court of Appeals and the Michigan
Supreme Court and the trial judge in Yee v
Shiawassee Co Bd of Comm'rs, ch. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002) and the
Shiawassee County Circuit Court IN THE MATTER
OF Determination of a Lake Level for the waters of
Bambi Lake, 35" Circuit No. 00-005032-CZ that
further proceedings shall be assigned to Judge Judith
Fullerton pursuant to MCR 8.111(D) and the U.S.
Const, Am V and XIV.
to issue a mandate in the name of the President of the
United States pursuant to Supreme Court Rule 45
that the Michigan Court of Appeals and the Michigan
Supreme Court and the trial judge in Yee v
Shiawassee Co Bd of Comm'rs, ch. App. 379, 383-
391, 393, 399-400; 651 N.W.2d 756 (2002) and the
Shiawassee County Circuit Court IN THE MATTER
OF Determination of a Lake Level for the waters of
Bambi Lake, 35" Circuit No. 00-005032-CZ shall
conduct a jury trial in accordance with petitioner's
constitutional rights under U.S. Const, Am V and
XIV; MCLA § 324.30710; MSA § 13A.30710; MCL
§ 213.52; MSA § 8.265(2); and Arnold v Ellis, 5
Mich App 101, 109-112; 145 NW2d 822 (1966); and
MCR 8.111(D)
I, William R. Yee, assert that all of the above are true to
the best of my knowledge, information and belief
William R. Yee, Wednesday, August 13, 2003
P. O. Box 310, Owosso, MI 48867-0310, 517 214-6196
Title Index to Appendix Page
WN WN I oon seduaxcsevusiasecinecSeviusceeniacics 29
RN WE WAN oo ses nscesoncaveedénecdodsussaceaccacec 30-55
Yee Motion for Rehearing Denied, 7-18-2002.......... 55-56
Mich Supreme Court Denies Appeal 2-28-2003.......... 56-57
Mich Sup eme Ct Denies Reconsideration 6-12-03....57-59
Judge Denies Transfer to Judge Fullerton 3-19- 01....59-60
Order Lake Level 800.67 feet above sea level.......... 60-61
Denial of Jury Trial and Retrial 10-29- 2002............ 61-62
Transcript pages 117, 136, 164 Mr. Protasiewiecz ...... 62
Transcript pages 117, 136, 164 Mr. Protasiewiecz ...... 62
Transcript Page 165, Mr. Protasiewiecz answering....62-63
Transcript Pages 346-349 Mr. Protasiewiecz ........... 63-66
Transcript Page 410: Mr. Vanraemdonck............... 66
Transcript Page 404: Mr. Vanraemdonck............... 66-67
Transcript Page 447-450: William Yee testifying...... 67-70
Trial Transcript page 399 Mr. Vanraemdonck ...... 70-71
Trial Transcript page 400 Mr. Vanraemdonck.......... 71
Trial Transcript page 451William R. Yee testifying. ..71-72
Trial Transcript page 407 William R. Yee testifying...72
Trial Transcript page 408 William R. Yee testifying...73
Trial Transcript page 510 William R. Yee testifying...73-74
29
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30
30
Appendix:
State of Michigan Court of Appeals
William R. Yee, For Publication
Plaintiff- Appellant, May 21%, 2002
Vv 9:05 a.m.
Shiawassee County Board No: 226612.
Of Commissioners, Genesee Circuit Court
Bernard Butcher, and LC No. 09-067136-CZ
George Braidwood, Jr.,
Defendants-Appellees.
/
William R. Yee, COA: 226613
Plaintiff-Appellant, Genesee Circuit Court
Vv LC No.: 00-67157-CZ
George Braidwood, Jr., Cynthia Braidwood, George
Braidwood, Sr., Rosemary Braidwood, Kimberly Call,
Donald G. Cummings, Eva Cummings, Kevin Dutcher,
Matthew Dutcher, Lloyd Fayling, Leslie Fayling, Edward
Flynn, Josephine Flynn, Bryan Jackson, Kelly Jackson,
Eric King, Melody King, Ozark Land Company, Norma
Power, Norma Jean Power Trust, Christine Roche, Jerry
Shorna, Letha Shorna, Shorna Family Trust, Inez Ross,
Louis Whalen, Director of the Department of
Environmental Quality, Director of the Department of
Natural Resources, Michigan State Police, Shieawssee
County Commissioners, Shiawassee County Prosecutor,
Shiawassee County Sheriff and Forrest and Eva Cummings
Trust, Defendants-Appellees.
/
William R. Yee, Plaintiff-Appellant, COA: 226614
and Genesee CC: 95-038534-CZ
Attorney General, Intervening Plaintiff-Appellee,
Vv
Donald G. Cummings, Trustee Forrest and Eva Cummings
Trust, Forrest and Eva Cummings Trust, Forrest
Cummings, Eva Cummings, George Braidwood, Cindy
Braidwood, Bryan Jackson, Kelly Jackson, Rosemary
Braidwood, Kenneth J. Foote, Jerry Shorna, Letha Shorna,
Norma Power, George Braidwood, Sr., Kimberly Call,
Floyd Fayling, Leslie Fayling, Edward Flynn, Jacqueline
Flynn, Eric King, and Melody King, Defendants-Appellees.
BANDSTRA, J.
In these consolidated cases, plaintiff appeals the trial
court's orders granting summary disposition in favor of
defendants. We affirm.
I. Basic Facts and Procedural History
These matters arise from a dispute regarding the water.
level of Bambi Lake,’ an impoundment of water created
following the construction of a dam along a branch of
Spring Hollow Creek in southern Shiawassee County. The
dam was constructed in the early 1970s by defendant
Forrest Cummings, pursuant to a permit issued by the state
department of conservation.’ After formation of the lake,
Cummings sold off parcels fronting the water to several of
the named defendants in these actions or their predecessors
in interest. Plaintiff purchased one such lot, with an
existing residence, in 1986. According to plaintiff, at the
~ time he purchased the home its basement "was in good
repair,” with "no evidence of dampness, leakage, or other
significant damage to the basement floor." Beginning in
1994, however, the floor of plaintiff's basement began to
“heave and crack" as a result of {251 Mich. App. 384}
increased hydrostatic pressure beneath the home prompted
by a rise in the lake's water level, which is controlled by a
spillway located at the southwest end of the lake.
According to plaintiff, from 1970 to 1993 the lake's water
level had been consistently maintained at 799 feet above
sea level, the “crest elevation" cited in the dam permit
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31
32
awarded Cummings in 1970. However, beginning in 1994,
the lake's water level began to rise, resulting in the
encroachment of lake water onto portions of plaintiff's
property that were previously dry and in damage to trees
and other vegetation on his property. To alleviate these
problems, as well as the resulting damage to his home,
plaintiff removed the top spillway stop log in order to
lower the lake's level to its previous elevation of 799 feet.
Shortly thereafter, however, owners of property
surrounding the {651 N.W.2d 761} lake replaced the stop
log and placed a pad lock on the spillway, thereby setting
the lake's level at a permanent elevation of approximately
800.95 feet above sea level.
In August 1995, plaintiff filed suit (Docket No. 226614)
alleging that defendants had conspired to operate the
spillway in a manner calculated to maintain Bambi Lake at
a level detrimental to his property.’ Plaintiff sought relief in
the form of monetary damages for trespass and additionally
requested that the trial court issue an injunction requiring
the defendant property owners to reduce the lake's level to
a {251 Mich. App. 385} crest elevation of 799 feet above
sea level, in accordance with the 1970 dam permit.
In February and June 1998, defendants moved to
bifurcate trial of plaintiff's claims in the interest of judicial
economy, arguing that the damages issue would not need to
be decided unless it was first determined that the lake was
being maintained at an inappropriate level. The trial court
agreed and, in July 1998, entered an order bifurcating the
lake level issue from that of damages. The portion of the
case pertaining to monetary damages was nevertheless
submitted to mediation in November 1998, pursuant to
MCR 2.403, with trial on the lake level issue scheduled to
take place before the bench on January 20, 1999. On
January 7, 1999, the mediation clerk issued notice advising
that all parties had accepted the mediation evaluation in
favor of the plaintiff. The following week the trial court
32
was informed that defendant Forrest Cummings had died
on January 8, 1999.
On January 18, 1999, issues concerning the trial court's
authority to establish a legal lake level were raised in a trial
brief submitted by intervening _ plaintiff Michigan
Department of Environmental Quality (DEQ).° In its brief,
the DEQ argued that, contrary to plaintiff's position, the
dam permit awarded to Forrest Cummings in April 1970
under the former dam construction approval act’ did not
establish an enforceable lake level, because establishment
of a {251 Mich. App. 386} legal lake level was outside the
scope of the act. Rather, the department argued, the
exclusive method for establishing a legal lake level is
through the procedures outlined under Part 307 of the
Natural Resources and Environmental Protection Act
(NREPA).’ Because those procedures had not been
followed, the department argued, the trial court had no
authority to act in the manner requested by plaintiff. The
department further argued that, even if the 1970 dam
permit could be found to have established an enforceable
lake level, because Cummings was now deceased, there
was no one left against whom the trial court could enforce
{651 N.W.2d 762} the permit requirements. Accordingly,
the DEQ requested that the matter be dismissed.
Several defendants adopted the arguments of the DEQ ir.
motions for summary disposition filed on January 19, 1999.
On January 20, 1999, the parties assembled for trial on the
lake level issue. Before trial, however, the court hearc.
argument on the issues raised by the DEQ in its trial briet.
After hearing the arguments of all parties, the court
determined that summary disposition of plaintiff's claims
was appropriate. In doing so, the trial court ruled (1) that
the 1970 dam construction permit did not establish a legal
lake level, (2) that even if the permit had operated as such,
the permittee had passed away and thus there was no one
against whom to enforce such a {251 Mich. App. 387}
33
33
34
34
level, (3) that the determination of a lake level for purposes
of assessing damages liability was moot in light of
mediation acceptance, and (4) that it had no jurisdiction to
determine and impose a legal lake level in the absence of
an action filed pursuant to Part 307 of the NREPA. The
trial court further suggested that if the parties wished to
establish a legal lake level, they should petition the
Shiawassee County Board of Commissioners to do so “as
soon as possible."
An order granting summary disposition under MCR
2.116(C)(4), lack of subject-matter jurisdiction, and MCR
2.116(C)(8), failure to state a claim on which relief could
be granted, was entered in favor of all defendants on
February 3, 1999. The order expressly provided that the
parties could file judgments pursuant to mediation
acceptance following entry of that order. Counsel for the
various parties prepared judgments pursuant to MCR
2.403(M), the last of which was entered on February 18,
1999. Plaintiff, however, apparently refused to accept the
judgment proceeds or to sign a satisfaction of judgment,
and thus each of the defendants was required to pay the
judgment proceeds to the county clerk, who issued the
necessary satisfactions of judgment.
Several days after dismissal of plaintiffs suit, those
defendants who were riparian owners on Bambi Lake
petitioned the Shiawassee County Board of Commissioners
to establish a normal lake level for Bambi Lake under Part
307 of the NREPA. Acting on this petition, the Shiawassee
County Board of Commissioners, on April 15, 1999,
directed that an engineering study be conducted in order to
determine the historic water surface elevation of the lake.
Upon completion of this study in April 2000, the board
directed the county {251 Mich. App. 388} attorney to
commence an action in the Shiawassee Circuit Court "to set
the water surface elevation level at Bambi Lake at 800.67
feet." The county attorney initiated such action on June 13,
35
2000. According to the parties, that matter is currently
pending in the Shiawassee Circuit Court.
On August 6, 1999, plaintiff filed a second action
(Docket No. 226612), naming the Shiawassee County
Board of Commissioners, the Shiawassee County Drain
Commissioner, and George Braidwood, Jr., as defendants.®
The first amended complaint, under which this action was
litigated, sought to enjoin the county commissioners from
setting a legal water level for Bambi Lake. In bringing this
action, plaintiff asserted that the issue of the lake level was
properly before the trial court in the 1995 action and that
the dam permit set the legal lake level at 799 feet above sea
{651 N.W.2d 763} level, and demanded that the trial court
issue an order declaring that the legal lake level had been
set at 799 feet above sea level. Plaintiff further sought
damages for the flooding of his property, as well as an
injunction "to abate the flooding."
On November 22, 1999, plaintiff filed a third action
relating to the water level of Bambi Lake (Docket No.
226613).? Although filed as a claim to quiet title and
determine interests in land, the relief sought by plaintiff
was in essence the same as that sought in the previous two
actions, i.e., an order declaring that the “lawful normal"
elevation of Bambi Lake, as established by the 1970 dam
permit, was 799 feet above {251 Mich. App. 389} sea
level, and that no county agency had authority to alter that
level.
Each of the defendants in the second case, and a majority
of those in the third, moved for summary disposition under
various theories, including res judicata stemming from the
trial court's previous ruling that the 1970 dam permit did
not establish a legal lake level and plaintiff's acceptance of
mediation regarding any damages related to the flooding of
his property. The county defendants further argued that
summary disposition of plaintiffs request to enjoin the
board of commissioners from seeking to establish a legal
35
SEE SO aT a Se
36
36
lake level under Part 307 of the NREPA was appropriate,
because the board had not yet filed the requisite petition in
the circuit court seeking to do so and, therefore, there was
no basis for an injunction at that time.'? At a hearing on
these motions, plaintiff argued that because the issue of the
lake level was not decided in the previous action, res
judicata did not apply to bar his subsequent suits. Plaintiff
further argued that, because Bambi Lake is a private lake
rather than a public lake, the Shiawassee County Board of
Commissioners did not have authority to seek
establishment of a legal lake level for Bambi Lake and that
it therefore did not matter that the board had not yet filed a
petition in the circuit court seeking to do so. The trial court
disagreed, finding that an injunction against the county
commissioners was premature and that plaintiff had
nonetheless failed to meet the requirements for injunctive
relief. Accordingly, the trial court dismissed plaintiff's {251
Mich. App. 390} request for injunctive relief under MCR
2.116(C) (8). The trial court further found that, in light of its
previous ruling that the 1970 dam permit did not establish a
legal lake level, as well as plaintiffs acceptance of
mediation, any subsequent claims for damages or equitable
relief based on the elevations cited in that permit were
barred by res judicata and thus summary disposition under
MCR 2.116(C) (7) was appropriate.
In September 1999, plaintiff attempted to revive the
litigation in Docket No. 226614 by filing a motion for
postjudgment relief requesting that the trial court reverse its
order granting defendants summary disposition and allow
plaintiff to substitute a representative for the deceased
Forrest Cummings and add any other party necessary to
allow that action to continue. Plaintiff asserted that he was
entitled to such relief under MCR 2.612(C), because the
defendants had perpetrated a fraud on the court by
representing that the action could not continue upon
Cummings’ death despite the right to substitute a
representative party provided for under MCR 2.202 and
MCR 2.207. Plaintiff further argued that he was denied due
process because MCR 2.116(B)(2) does not permit a
hearing on a motion for summary disposition until twenty-
eight days after {651 N.W.2d 764} service of the pleadings
on the nonmoving party. After hearing argument from the
parties, the trial court denied the motion, finding no fraud
to have occurred. Plaintiff subsequently sought
reconsideration of the motion, which was_ ultimately
denied.
While reconsideration was pending in the trial court,
plaintiff filed a claim of appeal in each of these three cases.
This Court consolidated the appeals and {251 Mich. App.
391} ordered that plaintiffs claims be treated as if on leave
granted.’
II. Docket No. 226614
A. Summary Disposition
In Docket No. 226614, plaintiff first argues that the trial
court's granting of summary disposition to defendants was
error because defendants did not comply with the notice
requirements of MCR 2.116(B)(2), thereby denying him
due process. Although we agree that defendants violated
the notice requirements provided under the court rules, we
find that summary disposition of plaintiffs suit was
nonetheless proper.
Initially, we note that the court rule relied on by plaintiff
in asserting a lack of sufficient notice does not apply to the
facts of this case. MCR 2.116(B) (2) provides:
A motion under this rule may be filed at any time
consistent with subrule (D) and subrule (G)(1), but the
hearing on the motion brought by a party asserting a claim
shall not take place until at least 28 days after the opposing
party was served with the pleading stating the claim. '
As noted by this Court in Smith v Sinai Hosp of
Detroit,'> "MCR 2.116(B) (2) does not apply to defendants
37
37
38
who wish to move for summary disposition,” but rather
“governs plaintiffs who wish to move for immediate
summary disposition upon the filing of a {251 Mich. App.
392} complaint, hence the words ‘a party asserting a claim’
in MCR 2.116(B)(2)." Nevertheless, plaintiff is correct that
defendants’ motions for summary disposition were not
timely filed. Under MCR 2.116(G), a written motion for
summary disposition, along with a supporting brief and any
affidavits or other documentary evidence, must be filed and
served at least twenty-one days before the date set for
hearing on the motion.'* Although the trial court may set a
different time for filing and service of such a motion, any
such authorization must be either endorsed in writing on
the face of the notice of hearing or made by separate
order.'° Here, it is not disputed that the motions on which
the trial court granted summary disposition were heard on-
the day of trial, after being filed and served the previous
day without the written imprimatur of the trial court.
However, as explained below, summary disposition was
proper despite this procedural deficiency.
As previously noted, before dismissal of plaintiff's suit all
parties accepted mediation {651 N.W.2d 765} with respect
to the damages claimed by plaintiff to have resulted from
the flooding of his property. Thus, the only issue left to be
resolved at trial was that concerning the appropriate A251
Mich. App. 393} level of the waters of Bambi Lake.'’ The
trial court, however, concluded that it was without
jurisdiction to reach a determination on that issue and
granted summary disposition under, among other
subsections, MCR 2.116(C) (4). In reaching this conclusion
the trial court found that, contrary to plaintiff's assertion,
the water levels and impoundment surface areas cited in the
1970 dam construction permit did not establish an
enforceable legal lake level and that any proceeding to set
such a level must be initiated under Part 307 of the
NREPA. After review of the relevant statutes, we agree that
38
39
the trial court lacked jurisdiction to render the requested
relief.
“Jurisdictional questions under MCR -2.116(C)(4) are
questions of law that are .. . reviewed de novo."!® Statutory
interpretation is similarly a question of law that is reviewed
de novo on appeal.'” The primary goal of judicial
interpretation of statutes is to ascertain and give effect to
the intent of the Legislature, and the first criterion in
determining such intent is the specific language of the
statute.”
{251 Mich. App. 394} The 1970 dam construction permit
at issue here was issued under the provisions of the now
repealed dam construction approval act (DCAA).*! The
preamble to 1963 PA 184, which established the DCAA,
States, in relevant part, that the purpose of the act was “to
require the obtaining of approval by the department of
conservation before erection of dams in streams or rivers . .
" To effectuate this purpose, the act permitted the
department to require permit applicants to submit “detailed
plans" of the proposed construction and provide those
funds estimated to be necessary "to cover the actual cost of
making an engineering study of the plans submitted and of
making inspection [of the dam] during and after
construction."“” The act further authorized the department
to promulgate rules "governing [the] standards and
methods of construction and materials used so as to insure
the structural soundness of any dam," and to "cancel any
permit issued by it upon failure to comply" with those
standards.” Given this language, it is clear that the
provisions of the act were intended simply to provide for a
method of regulating the construction of dams in this state
in order to ensure their {651 N.W.2d 766} structural
integrity. Although this goal would necessarily require
consideration and approval of proposed impoundment
surface areas and levels, nothing in the act indicates that
these were intended to establish an enforceable lake level.
39
40
40
To the contrary, that a construction permit issued under the
DCAA was not intended to establish {251 Mich. App. 395}
an enforceable lake level is clearly indicated by the
Legislature's amendment of the DCAA in July 1970 (just
three months after issuance of the Cummings permit) to
require successful permit applicants to petition for the
establishment of a legal lake level under the Inland Lake
Level Act of 1961 (ILLA):“4
Prior to 60 days following construction of any
impoundment created by a dam authorized by this act with
a head of 5 feet or over, or impounding 5 or more acres, [*” ]
the permittee, subject to the provisions of [the ILLA], shall
petition the county board of supervisors for a court-
established lake level and establishment of a special
assessment district for future maintenance of the lake level.
The permittee shall record the court order establishing the
lake level with the register of deeds, and advise the
department of natural resources in writing of such
compliance. [”° ]
Although this section was repealed by 1989 PA 300, and
not replaced when the remainder of the DCAA was
recodified as the Dam Safety Act,”’ if, as plaintiff asserts,
permits issued under the DCAA were intended by the
Legislature to establish an enforceable lake level, this
amendatory provision would have been’ wholly
unnecessary. Such an interpretation is contrary to the rules
of statutory construction.“ Moreover, even excepting this
amendment of the DCAA, the fact that the Legislature has,
since 1911, provided a {251 Mich. App. 396} separate
comprehensive statutory scheme for the establishment of
inland lake levels strongly militates against any claim that
issuance of a construction permit under the DCAA was
intended to establish a legally enforceable lake level.”
Statutes that relate to the same subject matter or share a
common purpose are in pari materia and must be read
together as one law.*’ In Michigan, there has been a
statutory vehicle for the establishment of a legal lake level,
in a form substantially unchanged through today, since the
enactment of 1911 PA 202. The modern version of this
Statutory scheme, the ILLA, was enacted in 1961 "to
provide for the determination and maintenance of the
normal height and level of the waters in inland lakes of this
State, for the protection of the public health, safety and
welfare and the conservation of the natural resources of this
state.""!
After its enactment, the ILLA underwent only minor
revisions until 1995, when it was substantially reorganized
and recodified {651 N.W.2d 767} as Part 307 of the
NREPA.** However, despite this extensive reorganization,
the substance of the act remains as it was under the ILLA.
The procedures for initiating an action to establish the
"normal level" of an inland lake are currently outlined in §§
30702-30704 of the NREPA.** Subsection 30702(1),*4
provides:
The county board of a county in which an inland lake is
located may upon the board's own motion, or shall within
{251 Mich. App. 397} 45 days following receipt of a
petition to the board of 2/3 of the owners of lands abutting
the inland lake, initiate action to take the necessary steps to
cause to be determined the normal level of the inland
lake. [°° ]
Subsection 30703(1),° authorizes the county board to
commission a preliminary engineering study to determine
the necessity and feasibility of establishing such normal
level. As did its predecessor, Part 307 further provides that
if the county board, based on the preliminary study, finds
it expedient to have and resolves to have determined and
established the normal level of an inland lake, the county
board shall direct the prosecuting attorney or other legal
counsel of the county to initiate a proceeding by proper
petition in the court of that county for determination of the
4]
4]
42
42
normal level for that inland lake and for establishing a
special assessment district if the county board determines
that one is necessary .
Section 30707 requires extended publication of notice
before any hearing on the matter™ and sets forth a number
of factors that the court must consider when determining
the normal height and level of the waters in inland lakes,
including the historical lake level and any testimony or
evidence offered by "interested persons."*”
Although nothing in Part 307 specifically excludes
initiation of such proceedings by an individual so {251
Mich. App. 398} interested, we conclude that, by enacting
such a comprehensive scheme for the establishment and
maintenance of legal lake levels, the Legislature has
signified its intent to vest authority to initiate such a
proceeding solely within the county’ board of
commissioners or its delegated authority. Accordingly,
without such action by these public authorities, a circuit
court is powerless to act.
It is fundamental that the classes of cases over which the
circuit courts have subject-matter jurisdiction are defined
by this state's constitution and Legislature. *° By enacting
the procedures outlined in Part 307 of the NREPA and its
predecessor, the ILLA, the Legislature clearly limited the
court's power to determine legal lake levels to those actions
initiated by the county commissioners in accordance with
the act."
{651 N.W.2d 768} That the Legislature intended these
proceedings to be initiated as a matter of public rather than
private action is further supported by the public purpose of
the statute * As recognized by this Court in In re Van Ettan
Lake:**
The purpose of the [ILLA| is to provide for the control
and maintenance of inland lake levels for the benefit and
welfare of the public. Read as a whole, the act essentially
authorizes counties to make policy decisions as to the
levels of their inland lakes. and build and finance dams as
necessary to maintain the desired levels. It cannot be
reasonably {251 Mich. App. 399} argued that the purpose
of the act is to also create or protect individual rights as to
inland lake levels. The focus of the act is Clearly on the
public welfare and not on individual riparian rights.“
Because a court is continually obliged to question sua
sponte its own jurisdiction over a person, the subject matter
of an action, or the limits of the relief it may afford,”” it was
the trial court's duty to take notice of its lack of subject-
matter jurisdiction and dismiss plaintiffs claim for
injunctive relief pursuant to MCR 2.116(C)(4).“° Indeed,
want of subject-matter jurisdiction is so serious a defect in
the proceedings that the trial court was duty-bound to
dismiss plaintiffs suit even had defendants not so
requested, *” Accordingly, no prejudice to plaintiff resulted
from defendants’ untimely filing of their motions for
summary disposition and any error was harmless.*®
In reaching this conclusion, we recognize that a panel of
this Court previously considered the Statutory language
now found in MCL 324.30702(1) and concluded that, by
providing that the county "may"--as opposed to "shall"--
seek to initiate proceedings to determine the normal level
of an inland lake, the Legislature did not foreclose a private
cause of action for {251 Mich. App. 400} this purpose."
The panel in Arnold, however, failed to consider the
comprehensive nature of the statutory scheme employed by
the Legislature or the public purpose in devising that
scheme, and we therefore reject its conclusion that suit by
an individual is not foreclosed. In any event, because that
case was decided before November 1, 1990, we are not
bound to follow the decision.”
Moreover, contrary to plaintiff's assertion, Bambi Lake is
not outside the scope of Part 307 of the NREPA because it
is a private, as opposed to public, lake. {651 N.W.2d 769}
43
43
44
44
Part 307 defines an “inland lake" over which the county
commissioners have authority as simply “a natural or
artificial lake, pond, [or] impoundment," without reference
to the public or private nature of that body. MCL
324.30701(f) °'. The statutory definition does not require
that the lake be public in order to be subject to the
provisions of Part 307.”
Plaintiffs reliance on Bott v Natural Resources Comm
in arguing that no governmental agency has authority to set
the level of a private lake is similarly misplaced. Bott did
not involve an action to determine the normal level of a
lake, but rather the test to be applied to determine the
navigability of smaller streams and private lakes for
purposes of the public {251 Mich. App. 401} trust doctrine.
Nothing in the Court's discussion of that matter is
applicable to the question of circuit court jurisdiction at
issue here.
That Bambi Lake is a private lake similarly does not
support plaintiff's claim that initiation of proceedings by a
government agency under Part 307 would amount to an
unconstitutional taking of private property for a nonpublic
purpose.” * As noted above, the statutory procedures for
establishment of a normal lake level were devised "for the
protection of the public health, safety and welfare," as well
as "the conservation of the natural resources of this state."
Even assuming that a governmentally initiated proceeding
to determine the normal level of Bambi Lake could
constitute a taking of private property, regulation of the
lake level directly protects not only those private lands
fronting the lake, but also those public resources and
property interests located downstream from the spillway.”
Accordingly, we are not persuaded that governmentally
initiated proceedings to determine the normal level of a
private lake are constitutionally infirm.
53
B. Defendant Forrest Cummings’ Death
Plaintiff next argues that, upon the death of defendant
Forrest Cummings on January 8, 1999, the trial court's
jurisdiction over the matter being litigated in Docket No.
226614 abated, rendering void all judgments {251 Mich.
App. 402} thereafter entered by the court. This argument is
wholly without merit.
The death of a party during the pendency of an action
neither abates the suit nor deprives a court of jurisdiction
over the matter. The survival statute specifically declares
that “all actions and claims survive death."*” Consistent
with this declaration, MCR 2.202(A)(1) permits a court to
allow substitution of parties if a party dies and the claim at
issue is not {651 N.W.2d 770} thereby extinguished.”®
Here, plaintiff offers no viable support for his assertion that
his claim for damages and injunctive relief against the
various defendants, including the decedent,’ was
extinguished upon Cummings’ death. The authority cited by
plaintiff for this proposition, Hoffman v St Clair Circuit
Judge,” is inapposite, because that case involved the death
of one of several defendants in an action for ejectment.
Although the Court in Hoffman found that, because the
decedent's rights in the real property passed to his heirs
immediately upon his death, the action against the decedent
abated, the Court nonetheless recognized that the suit
against the surviving defendants properly continued.
Accordingly, even assuming that the action abated with
respect to defendant Forrest Cummings, Cummings’ death
had no effect on the court's ability to act with respect to the
remaining defendants.
{251 Mich. App. 403}
C. Mediation Awards
Plaintiff next asserts that he is entitled to have the
judgments entered on the mediation awards set aside on the
ground of fraud.°! Again, we disagree.
45
45
46
46
Initially, it should be noted that although counsel for
plaintiff informally moved to have these awards set aside
during argument at the January 20, 1999, hearing on
defendants’ motion for summary disposition, the matter was
not pursued to a decision. Accordingly, this issue has not
been preserved for appellate review.’ Nonetheless, we
conclude that plaintiff is not entitled to the requested relief.
Generally, a court should set aside a judgment on the
acceptance of mediation only where a failure to do so
would result in substantial injustice. Here, despite
plaintiffs claim that his acceptance of mediated damages
was premised on a belief that a determination of the normal
level of Bambi Lake would follow, there is nothing in the
record to suggest that his acceptance was contingent on
some future event or decision in the case. Moreover,
regardless of the basis for plaintiffs acceptance of
mediation, nothing guaranteed him a favorable decision in
this regard. In any event, because the Shiawassee County
Board of {251 Mich. App. 404} Commissioners has since
initiated an action to determine the normal level of Bambi
Lake pursuant to Part 307 of the NREPA, plaintiff will
ultimately receive the judicial determination he claims to
have contemplated at the time he accepted the mediation
awards. Accordingly, no injustice will result from {651
N.W.2d 771} permitting the challenged judgments to stand.
D. Motion for Relief From Judgment
Plaintiff next argues that the trial court erred in denying
his motion for relief from judgment in Docket No. 226614
without first conducting an evidentiary hearing on his claim
that the court had been deceived into believing that, with
the death of defendant Forrest Cummings, no one against
whom to enforce an order to maintain Bambi Lake at the
levels cited in the 1970 permit remained. We disagree.
A trial court's decision on a motion for relief from
3 ‘ F R 4
judgment is reviewed for an abuse of discretion.” In
seeking relief from the February 3, 1999, order granting
defendants summary disposition, plaintiff asserted below
that despite defendants’ claims at the January 20, 1999,
hearing that the death of Cummings, the dam permit holder,
precluded the trial court from entering any enforceable
order pertaining to maintenance of the Bambi Lake
spillway, the property rights to the spillway, and thus the
obligations pertaining to its operation, passed to other
individuals against whom such an order could be entered
and enforced. The trial court, without conducting an
evidentiary hearing on this matter as requested by plaintiff,
found {251 Mich. App. 405} no fraud to have occurred and
denied the motion. On appeal, plaintiff asserts that denial of
his motion without the requested hearing was error.
Generally, where a party alleges that a fraud has been
committed on the court, it is "an abuse of discretion for the
court to decide the motion without first conducting an
evidentiary hearing into the allegations."°> However, courts
understandably look with skepticism upon a dissatisfied
party's claim of fraud and insist on strict factual proof.”
Thus, where the party requesting relief fails to provide
specific allegations of fraud relating to a material fact, the
trial court need not proceed to an evidentiary hearing.””
Here, although plaintiff raised valid concerns with respect
to the trial court's finding that Cummings’ death prevented
it from entering an enforceable order regarding
maintenance of the spillway, plaintiff failed to offer
Significant, specific allegations of fraud or
misrepresentation on the part of defendants. Under these
circumstances, we do not conclude that the trial court
abused its discretion by denying plaintiff's motion without
conducting an evidentiary hearing.”
In any event, even assuming that the trial court erred in
failing to conduct the requested hearing, the error was
harmless because, regardless of the existence of other
individuals against whom the subject order could be
47
47
48
48
enforced, dismissal of plaintiff's suit was required under
MCR 2.116(C) (4) for lack of subject-matter jurisdiction.”
{251 Mich. App. 406}
III. Docket Nos. 226612 and 226613
A. Summary Disposition
Plaintiff argues that the trial court erred in dismissing his
claims in {651 N.W.2d 772} Docket Nos. 226612 and
226613 under MCR 2.116(C)(7), on the basis of res
judicata. Plaintiff, however, makes no attempt to
specifically address the propriety of summary disposition
on these grounds with respect to any of the thirty-four
defendants in these combined cases. Generally, “where a
party fails to brief the merits of an allegation of error, the
issue is deemed abandoned by this Court."’’ Indeed, as our
Supreme Court stated in Mitcham v Detroit:”’
It is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up
to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and
then search for authority either to sustain or reject his
position. The appellant himself must first adequately prime
the pump; only then does the appellate well begin to flow.
In light of this failure, we find this issue to have been
abandoned on appeal and, therefore, decline to address it.
Nonetheless, as discussed in part ITA of this opinion, the
trial court was without jurisdiction to render the requested
relief in these actions, i.e., an order setting the “lawful
normal" elevation of Bambi Lake, and was therefore
obligated to dismiss the suit under MCR 2.116(C)(4) sua
sponte. Consequently, any error in the trial court's
application of res judicata to dismiss plaintiffs claims was
harmless. Accordingly, {251 Mich. App. 407} we affirm
the trial court's dismissal of plaintiff's claims in Docket
Nos. 226612 and 226613.”
B. Attorney Fees, Costs, and Sanctions
Finally, plaintiff argues that the trial court erred in
granting defendants attorney fees, costs, and sanctions.
Again, we do not agree.
MCR 2.625(A) (2) provides that if the court finds that an
action or defense is frivolous, it must award costs as
provided by’ MCL 600.2591 . Under this statute, "costs"
includes “all reasonable costs actually incurred by the
prevailing party and any costs allowed by law or by court
rule, including court costs and reasonable attorney fees."”°
An action is frivolous if, among other things, the losing
‘party's legal position was devoid of arguable legal merit"
or it was initiated for the "primary purpose of harassing .. .
the prevailing party.""* The filing of a signed pleading that
is not well-grounded in fact and law subjects the filer to
similar sanctions, pursuant to MCR 2.114(E).
Following the grant of summary disposition in Docket
No. 226613, several defendants moved for attorney fees,
costs, and sanctions pursuant to MCR 2.625 and MCR
2.114(E), arguing that plaintiff's claims in that action were
frivolous. After a hearing on these motions, the trial court
found that plaintiff's claims were not "well grounded in fact
or law,” and were filed "for the purpose of harassment or
embarrassment {251 Mich. App. 408} .. . but not for the
purpose really of litigating genuine issues of material fact."
The trial court accordingly concluded that the action was
“absolutely frivolous" and awarded sanctions, costs, and
attorney fees to a number of defendants. {651 N.W.2d 773}
On appeal, plaintiff argues that the trial court erred in
awarding these fees and costs because his suit held
arguable legal merit, and because defendants’ conduct
below makes any such award unconscionable. This Court
will not disturb a trial court's finding that an action was
frivolous unless that finding was clearly erroneous.” A
finding is clearly erroneous when, “although there is
49
49
90
evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been
made."”°
Plaintiff has failed to cite any specific conduct by
defendants to support his claim that the trial court's award
is unconscionable and, accordingly, has waived any
appellate review on these grounds.’’ Further, with respect
to the legal merit of the suit filed by plaintiff in Docket No.
226613, although filed as a claim to quiet title and
determine interests in land, the relief sought by plaintiff in
this subsequent action was in essence the same as that
sought in the previous action filed against these defendants
(Docket No. 226614), ie., an order declaring that the
"lawful normal" elevation of Bambi Lake, as established by
the 1970 dam permit, was 799 feet above sea level, and that
no county agency had authority to alter that {251 Mich.
App. 409} level. Inasmuch as the trial court had previously
ruled in that suit that the 1970 dam permit did not establish
a legal lake level, and had dismissed the action for want of
jurisdiction, we do not conclude that the trial court clearly
erred in finding that a subsequent suit seeking to relitigate
these same issues was frivolous.” Notwithstanding any
arguable legal merit to plaintiff's claims in the prior suit,
defendants were forced to twice incur the costs of
answering and defending against those claims.
We affirm.
/s/ Richard A. Bandstra
/s/ Henry William Saad
/s/ Michael R. Smolenski
Footnotes
1 Bambi Lake is also known as Cummings Lake.
2 The Michigan Department of Conservation and its successor, the
Department of Natural Resources (DNR), were responsible for issuing
such permits until October 1995, when the powers of the Land and
Water Management Division of the DNR, including those respecting
the construction and maintenance of dams, were transferred to the
51
newly created Department of Environmental Quality. See MCL
324.99903 .
3 Stop logs installed at the mouth of the spillway can be added or
removed to raise or lower the lake's water level.
4 Shiawassee Circuit Judge Gerald Lostracco recused himself in that
matter, and supervision of the case was assigned by the State Court
Administrative Office to Judge Judith A. Fullerton in the Genesee
Circuit Court.
9 The DEQ was permitted to intervene in the lawsuit on the basis
that establishment of an “appropriate” water level for Bambi Lake
could potentially require modifications to Cummings Dam, which, as
the relevant permitting authority, required DEQ involvement. See MCL
324.31509 ; see also n 2, supra.
6 MCL 281.131 et seq., repealed by 1989 PA 300, § 65. See also n
21, infra.
7 MCL 324.30701 et seq. The statutes governing establishment of
“normal,” or legal, lake levels were included in the Inland Lake Level
Act, MCL 281.61 to 281.86 , until they were repealed by 1994 PA
451, § 90103, and reenacted as Part 307 of the NREPA by 1995 PA
99, § 1, without substantive change. As will be explained, Part 307
requires that any action to establish a legal level for an inland lake be
initiated by the county board of commissioners. See MCL 324.30702 .
8 Judge Lostracco again recused himself and the matter was
transferred to the Genesee Circuit Court. See n 4. supra.
9 See n 8, supra.
10 The board's petition seeking to set a legal lake level for Bambi
Lake was not filed until June 13, 2000.
11 See MCR 7.203(B). Given the interrelation of his arguments, we
have also consolidated several of plaintiff's issues on appeal.
12 Emphasis added.
13 Smith v Sinai Hospital of Detroit, 152 Mich. App. 716, 723; 394
N.W.2d 82 (1986).
14 MCR 2.116(G) (1) (a) (i).
15 MCR 2.116(G)(1)(b).
16 Contrary to defendants’ assertions, MCR 2.116(D)(3) does not
relieve them of the obligation to file and serve a motion for summary
disposition premised on a lack of subject-matter jurisdiction within the
period prescribed by MCR 2.116(G) (1) (a) (i). Although MCR
2.116(D)(3) provides that such grounds for summary disposition may
be "raised at any time," the rule merely serves tc remove any time limit
for asserting those grounds as a basis for summary disposition. See
51
92
92
Michigan Court Rules Practice, Rule 2116.5, p 366.
17 We note that in Cam Constr v Lake Edgewood Condominium
Ass'n, 465 Mich. 549, 557; 640 N.W.2d 256 (2002), our Supreme Court
recently held that parties may no longer “except claims from case
evaluation under [MCR 2.403]." “If all parties accept the panel's
evaluation, the case is over,” and a party may not, therefore, appeal
from an adverse summary disposition on any one count in the action.
Cam Constr, supra at 550; see also MCR 2.403(M)(1). However,
because the question is not directly before us, we express no opinion on
the applicability of Cam Constr to this matter.
18 Travelers Ins Co v Detroit Edison Co, 465 Mich. 185, 205; 631
N.W.2d 733 (2001).
19 Oakland Co Bd of Rd Comm'rs v Michigan Property & Casualty
Guaranty Ass'n, 456 Mich. 590, 610; 575 N.W.2d 751 (1998);
Ypsilanti Housing Comm v O'Day, 240 Mich. App. 621, 624; 618
N.W.2d 18 (2000).
20 Housing Comm, supra at 624.
21 MCL 281.131 et seq. The DCAA was repealed by 1989 PA 300, §
65 and recodified as the Dam Safety Act, MCL 281.1301 et seq., which
was itself repealed by 1994 PA 451, § 90103 and reenacted by 1995
PA 59, § | as Part 315 of the NREPA.
22 1963 PA 184, § 2.
23 Id. at § 3.
24 MCL 281.61 et seq., repealed by 1994 PA 451, § 90103. See n 7,
supra.
25 The waters of Bambi Lake cover approximately twenty-seven
acres.
26 See 1970 PA 68, § 2a.
27 MCL 281.1319 et seq., repealed by 1994 PA 451, § 90103. See n
21, supra.
28 See Hoste v Shanty Creek Management, Inc, 459 Mich. 561, 574;
592 N.W.2d 360 (1999) (when interpreting a statute, courts should
avoid any construction that would render any part of a statute
surplusage or nugatory).
29 See 1911 PA 202.
30 State Treasurer v Schuster, 456 Mich. 408, 417; 572 N.W.2d 628
(1998).
31 1961 PA 146, preamble.
32 See n 7, supra.
33 MCL 324.30702 - 324.30704.
34 MCL 324.30702(1).
35 Under MCL 324.30706, the DEQ is similarly vested with
authority to initiate "proceedings for determination of the normal
level." See ns 2 and 5, supra.
36 MCL 324.30703(1).
37 MCL 324.30704(1).
38 MCL 324.30707(1).
39 See MCL 324.30707 (4).
40 MCL 600.605 .
41 Once such a determination has been made. however, circuit court
jurisdiction over a lake's level continues. MCL 324.30707(5) : see also
Anson v Barry County Drain Comm'r, 210 Mich. App. 322, 325-326:
933 N.W.2d 19 (1995).
93
42 That Part 307 similarly permits the DEQ to initiate such -
proceedings is consistent with the public purpose of the act. See n 35.
supra.
43 In re Van Ettan Lake, 149 Mich. App. 517: 386 N.W.2d 572
(1986).
44 Id. at 525-526 (citations omitted, emphasis added). See also
Wortelboer v Benzie County, 212 Mich. App. 208, 214; 537 N.W.2d
603 (1995) (although plaintiff riparian Owners were "interested
persons" within the meaning of the ILLA, the act did not provide them
with a private right to bring suit under that act).
45 Straus v Governor, 459 Mich. 526, 532: 592 N.W.2d 53 (1999).
46 See Fox v Bd of Regents of the University of Michigan, 375 Mich.
238, 243; 134 N.W.2d 146 (1965) ("A court which has determined that
it has no jurisdiction should not proceed further except to dismiss the
action."), citing Lehman v Lehman, 312 Mich. 102: 19 N.W.2d 502
(1945).
47 In re Estate of Fraser, 288 Mich. 392, 394: 285 NW | (1939).
48 MCR 2.613(A).
49 Arnold v Ellis, 5 Mich. App. 101, 109-111: 145 N.W.2d 822
(1966).
90 MCR 7.215(I)(1).
91 MCL 324.30701(f) .
52 That the public or private nature of the lake is irrelevant is further
supported by the fact that the purpose of the statute, as originally
enacted, was to "protect the public health, safety and welfare... ."
1961 PA 146, preamble. Regulation of the lake level protects not only
the riparian owners on Bambi Lake, but also those who reside
93
04
94
downstream from the spillway.
53 Bott v Natural Resources Comm, 415 Mich. 45; 327 N.W.2d 838
(1982).
54 See US Const, Am V; 1963 Const, art 10, § 2.
55 1961 PA 146, preamble.
56 Cf. Tolksdorf v Griffith, 464 Mich. 1, 8-9; 626 N.W.2d 163 (2001)
(benefit to public at large under private roads and temporary highways
act is purely incidental and far too attenuated to support constitutional
taking of private property).
57 MCL 600.2921 .
58 See, e.g., Ponke v Ponke, 222 Mich. App. 276, 279-280; 564
N.W.2d 101 (1997) (where party to a divorce action dies before entry
of judgment, action abates because there is no longer any marriage to
dissolve).
59 See, e.g., Thomas v Steuernol, 185 Mich. App. 148, 156; 460
N.W.2d 577 (1990) (the defendant's personal representative properly
substituted for the defendant on his death).
60 Hoffman v St Clair Circuit Judge, 40 Mich. 351 (1879).
61 Although, in his statement of questions presented, plaintiff also
asserts that he is entitled to file an amended complaint and add any
party necessary te ¢etennine damages and the lawful level of Bambi
Lake, he offers no argument or authority to support these claims.
Accordingly, plaintiff has waived these issues on appeal. In re Coe
Trusts, 233 Mich. App. 525, 537; 593 N.W.2d 190 (1999) ("A party
may not merely announce a position and leave it to this Court to
discover and rationalize the basis for the claim.").
62 Fast Air, Inc v Knight, 235 Mich. App. 541, 549; 599 N.W.2d 489
(1999) (issues not decided by the trial court are not preserved for
appeal).
63 Hauser v Roma's of Michigan, Inc, 156 Mich. App. 102, 104; 40i
N.W.2d 630 (1986).
64 Blue Water Fabricators, Inc v New Apex Co, Inc, 205 Mich. App.
295, 300; 517 N.W.2d 319 (1994).
65 Rapaport v Rapaport, 185 Mich. App. 12, 16; 460 N.W.2d 588
(1990).
66 Kiefer v Kiefer, 212 Mich. App. 176, 179; 536 N.W.2d 873
(1995).
67 Young v David Young, 342 Mich. 505, 507-509; 70 N.W.2d 730
(1955).
99
68 Id.; see also Kiefer, supra.
69 MCR 2.613(A).
70 Prince v MacDonald, 237 Mich. App. 186, 197; 602 N.W.2d 834
(1999).
71 Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959).
72 See Detroit v Presti, 240 Mich. App. 208, 214; 610 N.W.2d 26}
(2000) ("This Court will not reverse a trial court's order if it reached the
right result for the wrong reason.").
73 MCL 600.2591(2) .
74 MCL 600.2591 (3) (a) .
75 Szymanski v Brown, 221 Mich. App. 423, 436; 562 N.W.2d 212
(1997).
76 In re Attorney Fees & Costs, 233 Mich. App. 694, 701; 593
N.W.2d 589 (1999).
77 See Palo Group Foster Care, Inc v Dep't of Social Services, 228
Mich. App. 140, 152; 577 N.W.2d 200 (1998).
78 In reaching this conclusion we note that, although not a
practitioner, plaintiff is a licensed attorney in the state of Michigan.
251 Mich. App. 417::People v. City of Ann Arbor.:May 21, 2002,
Decided
2K OK KOK
Court of Appeals, State of Michigan
ORDER Henry William Saad
William R Yee Presiding Judge
Vv Richard A. Bandstra
Shiawassee Co Bd of Comm Michael R. Smolenski
Judges
Docket No.226612; 226613; 226614
LC No.00-067136-CZ; 99-00361 7-CZ
The Court orders that the motion for rehearing is DENIED.
s/ Henry Saad a is
Presiding Judge
State of Michigan (seal)
Court of Appeals (seal)
A true copy entered and certified by Sandra Schultz
Mengel, Chief Clerk, on
95
96
56
July 18, 2002, s/Sandra Shultz Mengel.
Date Chief Clerk
* KKK
Michigan Supreme Court Lansing, Michigan
Order Maura D. Corrigan
Entered: February 28, 2003 Chief Justice
122123-5 & (90) Michael F. Cavanagh
William R. Yee, Elizabeth A. Weaver
Plaintiff-Appellant, Marilyn Kelly
Vv Clifford W. Taylor
Shiawassee County Board Robert P. Young, Jr.
Of Commissioners, Stephen J. Markham
Bernard Butcher, and Judges
George Braidwood, Jr., SC: 122123 COA: 226612
Defendants-Appellees. Genesee CC: OO-067136-CZ
/
William R. Yee, SC: 122124
Plaintiff-Appellant, COA: 226613
Vv Genesee CC: 00-67157-CZ
George Braidwood, Jr., Cynthia Braidwood, George
Braidwood, Sr., Rosemary Braidwood, Kimberly Call,
Donald G. Cummings, Eva Cummings, Kevin Dutcher,
Matthew Dutcher, Lloyd Fayling, Leslie Fayling, Edward
Flynn, Josephine Flynn, Bryan Jackson, Kelly Jackson,
Eric King, Melody King, Ozark Land Company, Norma
Power, Norma Jean Power Trust, Christine Roche, Jerry
Shorna, Letha Shorna, Shorna Family Trust, Inez Ross,
Louis Whalen, Director of the Department of
Environmental Quality, Director of the Department of
Natural Resources, Michigan State Police, Shieawssee
County Commissioners, Shiawassee County Prosecutor,
Shiawassee County Sheriff and Forrest and Eva Cummings
Trust, Defendants-Appellees.
o7
/
William R. Yee, oC: 122125
Plaintiff-Appellant, COA: 226614
and Genesee CC: 95-038534-CZ
Attorney General,
Intervening Plaintiff-Appellee,
Donald G. Cummings, Trustee Forrest and Eva Cummings
Trust, Forrest and Eva Cummings Trust, Forrest
Cummings, Eva Cummings, George Braidwood, Cindy
Braidwood, Bryan Jackson, Kelly Jackson, Rosemary
Braidwood, Kenneth J. Foote, Jerry Shorna, Letha Shorna,
Norma Power, George Braidwood, Sr., Kimberly Call,
Floyd Fayling, Leslie Fayling, Edward Flynn, Jacqueline
Flynn, Eric King, and Melody King, Defendants-Appellees.
/
On order of the Court, the application for leave to appea!
from the May 21, 2002 decision of the Court of Appeals is
considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed
by this Court. The motion for superintending control is also
considered, and it is DENIED.
Weaver, J., not participating.
I, CORBIN R. DAVIS; Clerk of the Michigan Supreme
Court, certify that the foregoing is a true and complete copy
of the order entered at the direction of the Court.
B6225
Seal of the Michigan Supreme Court-Lansing
February 28, 2003 s/Inger E Myer,
Deputy Clerk
KK OK
Michigan Supreme Court Lansing, Michigan
Order Maura D. Corrigan
Entered: June 12, 2003 Chief Justice
57
98
98
122123-25(100) (101) Michael F. Cavanagh
William R. Yee, Elizabeth A. Weaver
Plaintiff- Appellant, Marilyn Kelly
Vv Clifford W. Taylor
Shiawassee County Board Robert P. Young, Jr.
Of Commissioners, Stephen J. Markham
Bernard Butcher, and Judges
George Braidwood, Jr., SC: 122123 COA: 226612
Defendants-Appellees. Genesee CC: OO-067136-CZ
/
William R. Yee, SC: 122124
Plaintiff-Appellant, COA: 226613
Vv | Genesee CC: 00-67157-CZ
George Braidwood, Jr., Cynthia Braidwood, George
Braidwood, Sr., Rosemary Braidwood, Kimberly Call,
Donald G. Cummings, Eva Cummings, Kevin Dutcher,
Matthew Dutcher, Lloyd Fayling, Leslie Fayling, Edward
Flynn, Josephine Flynn, Bryan Jackson, Kelly Jackson,
Eric King, Melody King, Ozark-Land Company, Norma
Power, Norma Jean Power Trust, Christine Roche, Jerry
Shorna, Letha Shorna, Shorna_Family Trust, Inez Ross,
Louis Whalen, Director of the Department of
Environmental Quality, Director of the Department of
Natural Resources, Michigan State Police, Shieawssee
County Commissioners, Shiawassee County Prosecutor,
Shiawassee County Sheriff and Forrest and Eva Cummings
Trust, Defendants-Appellees.
/
William R. Yee, SC: 122125
Plaintiff- Appellant, COA: 226614
And Genesee CC: 95-038534-CZ
Attorney General,
Intervening Plaintiff-Appellee,
99
Vv
Donald G. Cummings, Trustee Forrest and Eva Cummings
Trust, Forrest and Eva Cummings Trust, Forrest
Cummings, Eva Cummings, George Braidwood, Cindy
Braidwood, Bryan Jackson, Kelly Jackson, Rosemary
Braidwood, Kenneth J. Foote, Jerry Shorna, Letha Shorna,
Norma Power, George Braidwood, Sr., Kimberly Call,
Floyd Fayling, Leslie Fayling, Edward Flynn, Jacqueline
Flynn, Eric King, and Melody King, Defendants-Appellees.
/
On order of the Court, the motion for reconsideration of
this Court’s order of February 28, 2003 is considered, and
it is DENIED because it does not appear that the order was
entered erroneously. The motion for stay is also DENIED.
t0610 Seal of the Michigan Supreme Court-Lansing
I, CORBIN R. DAVIS, Clerk of the Michigan Supreme
Court, certify that the foregoing is a true and complete copy
of the order entered at the direction of the Court.
s/June 12, 2003 s/Inger E Myer,
Deputy Clerk
2K KK
State of Michigan
In the Circuit Court for the County of Shiawassee
In the Matter of: File No. 00-005032-CZ
Determination of a JUDGE: Gerald D.
Lostracco
Lake Level for the Waters of Bambi Lake, Bennington
Township, SHIAWASSEE County, Michigan,
QRDER DENYING MOTION TO TRANSFER
At a session of said court held in the 19"" day of
March, 2001,
PRESENT: HONORABLE, Randy L. Tahvonen,
Visiting Circuit Court Judge
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THIS MATTER having come on to be heard upon the
motion of William R. Yee seeking to have this matter
transferred to Judge Fullerton, and the Court having
considered the pleadings and oral arguments presented in
support of the respective positions of the parties, and being
fully advised in the premises,
NOW, THEREFORE, IT IS HEREBY ORDERED that
said Motion be and is hereby DENIED.
s/Randy L. Tahvonen
RANDY L. TAHVONEN
Circuit Court Judge Dated: March 19, 2001
F:/15000/15148/Order Denying Transfer
KK KK
State of Michigan
In the Circuit Court for the County of Shiawassee
In the Matter of: File No. 00-005032-CZ
Determination of a Honorable Randy L. Tahvonen
Lake Level for the Waters of Bambi Lake, Bennington
Township, SHIAWASSEE County, Michigan,
Order Determining Normal Lake
Level for Bambi (A/K/A Cummings) Lake
At a session of said Court, held in the City of Ithaca,
County of Gratiot, State of Michigan on the 36th day of
August, 2002. PRESENT: HON. RANDY L. TAHVONEN
This matter having come before the Court on the Petition
by the Shiawassee County Board of Commissioners,
requesting that the Court determine the normal lake level
for Bambi (a/k/a Cummings) Lake in Shiawassee County,
pursuant to the authority found in the Inland Lake Level
Act, MCL 324.30701 et seq. the Court having conducted a
hearing in open court following the notice required by said
Act and the Court having listened to the presentations of all
interested parties, reviewed the exhibits and pleadings and
set forth its findings and conclusions on the record on June
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12, 2002;
IT IS HEREBY ORDERED THAT, for the reasons set
forth on the record on June 12, 2002, the normal lake level
of Bambi (a/k/a Cummings) Lake is set at 800.67 feet
above mean sea level and that this elevation is determined
to be the top of the weir structure, located in the southwest
quadrant of the Lake, with all stop logs in place;
IT IS FURTHER ORDERED THAT the Shiawassee
County Drain Commissioner shall prepare a plan to
maintain the lake level and shall also prepare and submit to
this Court within 60 days hereof a document showing the
proposed boundaries for a special assessment district, as
provided by MCL 324.30707(5).
IT IS FINALLY ORDERED THAT no sanctions shall be
assessed against William Yee, but the normal costs may be
taxed by the prevailing parties.
S/RANDY L. TAHVONEN s/SA
Honorable Randy L. Tahvonen Countersigned:Deputy
Visiting Circuit Court Judge clerk
s/ Patrick A. Aseltyne
Drafted by: Patrick A. Aseltyne (P23293)
2K OK OK
State of Michigan
In the Circuit Court for the County of Shiawassee
In the Matter of: File No. 00-005032-CZ
Determination of a JUDGE: Gerald D.
Lostracco
Lake Level for the Waters of Bambi Lake, Bennington
Township, SHIAWASSEE County, Michigan,
Order Denying Motion for New Trial At a session of said
Court, held on the 29'" day of October, 2002. Present:
Honorable Randy L. Tahvonen, Circuit Court Judge
This matter having come on regularly to be heard upon
William R. Yea’s motion for new trial, the parties having
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presented oral argument and the Court being fully advised
in the premises;
Now Therefore, It Is Hereby Ordered that the motion for
new trial and other relief be and is hereby DENIED.
This Order disposes of all claims and closes the case.
Dated: October 29", 2002, /Randy L. Tahvonen
Randy L. Tahvonen, Circuit Court Judge
15000/151 48/order denying new trial/na
Trial transcript page 117 Mr. Protasiewiecz
A That would be fine, they're over here. The--July 8 of
1999 is when we turned in a benchmark and shot those
elevations.
Q So the elevations that you're going to testify here to
today would have been the elevations effective as of July 8,
‘997
A Yes.
Trial Transcript page 136 Mr. Protasiewiecz
so I don't know when the USGS elevations were taken, but
when we surveyed it, it was 799.99, it wasn't at 800.67
where the top of the stop logs were, it was down below. So,
you know, the lake fluctuates, so my explanation of, you
know, the 799 versus our recommended 801.67 or where it
was tried to be maintained before, is that whatever time you
go out there and check the elevation could be what you put
on the map, so those fluctuate.
Trial transcript page 164 Mr. Protasiewiecz
Q Okay. So your statement--it's your statement that this
- portion of my property would be flooded?
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A It's an estimation, um hum.
Transcript Page 165, Mr. Protasiewiecz
THE COURT: Go ahead with the examination of the
witness. Now let me see, this exhibit has been marked to
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reflect the area that would be flooded if the lake is fixed at
800.67.
THE WITNESS: It's an estimation.
MR. YEE: That's the part he proposes to flood of my
property.
THE COURT: Okay. So I have the portion of the property
that would be flooded at 800.67?
Transcript Pages 346-349 Mr. Protasiewiecz
BY MR. YEE:
Q So--
ASo when I drew the line the other day and said this
area up in here at the proposed elevation would be, if
you want to call it flooded, then that’s--that’s what I
was describing.
Q--okay. Is it--is it your belief that if it’s set so it falls
inside of the box there, that none of the property
outside of the box will be flooded to my--and that
property would, therefore, be taken away from me
and made part of the lake?
A You would still own the property, there are--and,
again, I’m not a surveyor so I don’t know if I’m the
right one to direct these questions to, but my
understanding is this is what you own, so you still
own that property and we--I personally own property
on a lake and we own thirty acres of the lake. It’s we
own out to a certain line and it’s flooded, if you want
to say it flooded, or we own part of the lake, it’s
however you want to look at it. We own part of the
lake, we own thirty acres of the lake, so.
Q Do you own riparian property on your lake?
A Yes.
Q Do you know what riparian property rights are?
A I’m not an--no, I'm not an expert at it.
Q You own riparian property but you don’t-understand
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your riparian rights on your own lake?-
A No, if I need to, then I ask somebody that would
know.
Q So if by raising the lake according to your
recommendation, the flood--the northeast corner--this
is the northeast corner on this map, is that correct?
A That’s correct.
Q To flood the northeast corner in that box, none of my
property outside of that box would be flooded and to
my detriment, according to your understanding of that
property?
A Again, my opinion is if it were my property then |
would own more of the lake. It’s not that I would
have a detriment to my property.
Q Oh, so I wouldn’t be losing anything, I would-
A You would still--you would own more--you'd have a
bigger portion of the lake.
Q--I would own more lake and less land, according to
where you plan to put the lake?
AYup, by a very small corner in the corner of your
property, the lake, it’s however you want to look at it.
We own part of the lake, we own thirty acres of the
lake, so.
Q Do you own riparian property on your lake?
A Yes. :
Q Do you know what riparian property rights are?
A I’m not and--no, I’m not an expert at it.
Q You own riparian property but you don’t understand
your riparian rights on your own lake?
A No, if I need to, then I ask somebody that would
know. Q So if by raising the lake according to your
recommendation, the flood--the northeast corner--this
is the northeast corner on this map, is that correct?
A That's correct.
Q To flood the northeast corner in that box, none of my
property outside of that box would be flooded and to
my detriment, according to your understanding of that
property?
A Again, my opinion is if it were my property then I
would own more of the lake. It’s not that I would
have a detriment to my property.
Q Oh, so I wouldn't be losing anything, I would-A You
would still--you would own more--you'd have a
bigger portion of the lake.
Q--I would own more lake and less land, according to
where you plan to put the lake?
AYup, by a very small corner in the corner of your
property, yes.
Q And—
AThat’s been my opinion.
Q--and that’s one of my benefits of owning this
property, is owning more of the lake?
AYou have access to the lake, correct.
QWell, there’s a difference between owning the lake
and having access, | believe.
THE COURT: Question, doctor? See, that’s why
you spend time you don't need to waste. Next
question, sir.
MR. YEE: I apologize.
THE COURT: You were complaining you didn’t
have enough time, ask questions, you will.
BY MR. YEE:
Q So it’s your understanding that one of the property
rights a riparian owner has is that if the lake rises, he
gets to own more lake in exchange for his property of
dry land?
AYeah, that’s one way to look at it.
QThat’s your testimony?
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A Correct.
Q And so based on that belief, you think that myself
and everybody else on the lake benefits by raising the
lake to your level?
A From my belief is that there is no detriment to that
piece--to your piece of property for having the lake at
this proposed elevation that I’ve set, that I've
recommended.
Transcript Page 410 Mr. Vanraemdonck answering:
Q So you don't know the elevation of the lake on the
date you did the survey?
A I do not.
Q So there’s a boundary survey without an elevation?
A That’s correct
Q And when you did the survey, did you have any idea as
to what the proper elevation of the lake was?
A I did not.
Q Do you have any idea at any time if there was proper
elevation for this particular lake?
A I do not.
QSo you can make no--no expert testimony as to the
proper elevation of this particular lake at any given date?
A No, I cannot.
Transcript Page 404: Mr. Vanraemdonck answering:
And the first two lines of 440--Liber 443, page 222, it
says to an iron stake, said meander line being for
descriptive purposes only and the easterly edge of the
parcel being the westerly edge of water of a private lake as
intercepted between, and then it goes on. But, basically,
what it says is I own the property to the water edge--
water's edge, and that gives me riparian rights to the lake.
And all of these deeds pretty much say the same thing, to
the water's edge. And, so--and there's no reservation in any
of these deeds that gives Forrest or Eva Cummings the
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right to raise the lake or in any way flood any part of the
property that was purchased through this chain of title.
Now, I also obtained certified copies of surveys of these
two parcels that compose 5281 Lake Drive. The first one
has previously been marked as 2-V. The second one is 2-
W, and they are Liber 2 of surveys, page 104, and label 3--
Liber 3 of surveys, page 106, and these were from the
Register of Deeds office in Shiawassee found in Corunna,
Michigan.
These are both certified copies, and I would like them to
be admitted into evidence at this time.
Transcript Page 447-450: William Yee testifying:
Trial Transcript page 447
THE COURT It’s admitted, doctor
(At 9:26 a.m., exhibit 2-X received into evidence)
THE COURT: So one parcel was purchased by these
folks named Raleys, was it?
THE WITNESS: Do you have the marked one in front of
you
THE COURT No, but I have my copy and I'd be happy
to mark it so we'd all have the same one Do you have a
copy to look at
THE WITNESS: I'm looking for it.
THE COURT: Okay.
MR. DAVISON: Dr Yee.
THE WITNESS Oh, it was up on the desk. Thank you.
Now that this is marked, who do I--do I give it to the court
recorder
THE COURT If it’s been marked and admitted, no, you
can use it and then we ll return it with the cluster of
exhibits up here on the bench.
THE WITNESS: Set it up on your desk there
THE COURT Right
THE WITNESS Okay.
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THE COURT After you're through with it though.
THE WITNESS: Okay The original property was
purchased from Forrest Cummings and Eva Cummings by
Charles
Trial Transcript page 448 William Yee testifying:
and Wanda Raley in, I believe, November 6 of 1974. And
that’s on the first page of 2-X.
THE COURT:Now Is that the bigger of the two pieces of
property?
THE WITNESS: That's the larger piece, yes, sir.
THE COURT: Okay.
THE WITNESS: And the description is on Liber 443,
page 222 and 223. On Liber 470, page 186 and 187, which
is pages three and four of the exhibit 2-X, it shows that the
property was then transferred to Lois Louise Clifford, also
known as Louise Michael, Dr. Louise Michael. And this
was done on March the 27~ of 1978. And then Liber 481,
pages 311 and 312, which are the next two pages in the
exhibit, show a transfer of property from Forrest
Cummings and Eva Cummings to Lois Louise Clifford,
also known as Michael, Dr. Michael, and this was on
January the ,2t~~ of 1979, and this was that second parcel.
THE COURT: And that’s the square one just below the
big one?
THE WITNESS: It’s the small piece just below it, yes.
THE COURT: Okay.
THE WITNESS: And you're referring to exhibit--
Trial Transcript page 449 William Yee testifying:
THE COURT: 2-S.
THE WITNESS: 2—X. Excuse me--that’s 2-S, as in
Sam, is a--is a survey and 2-X, as in x-ray, is the chain of
title. On pages Liber 625, page 43 and 44 and 45, it’s a
three page deed dated the joth day of November, 1986, and
this is a transfer of that property to William R. Yee and
Christine M. Yee, his wife at that time, and this is from Dr.
Louise Michael, also known as Lois Louise Clifford. And
this is where I acquired my interest in the property. And
that interest continued on Liber 798, page 123, 124, and
125, where my interest continued and will continue as long
as this property is under litigation. And that’s why I have
an interest and am in this Court at this time.
When you examine these deeds, it states that, on the first
page--I’m sorry, on the second page, on a meander line a
distance of 201.31 feet only and the westerly edge of the
parcel being fifteen foot easterly of and parallel to the
centerline of a private eighteen foot gravel road, together
with rights of ingress and egress on said private road from
the southwest corner of the parcel.. Now. that’s important
because my property can only be reached over private
property and on a private road, and | have acquired a right
to go over somebody else's property, which is also private,
as well as mine.
Trial Transcript page 450 William Yee testifying:
And the first two lines of 440--Liber 443, page 222, it
Says to an iron stake, said meander line being for
descriptive purposes only and the easterly edge of the
parcel being the westerly edge of water of a private lake as
intercepted between, and then it goes on. But, basically,
what it says is I own the property to the water edge--
water's edge, and that gives me riparian rights to the lake.
And ali of these deeds pretty much say the same thing, to
the water's edge. And, so--and there’s no reservation in any
of these deeds that gives Forrest or Eva Cummings the
right to raise the lake or in any way flood any part of the
property that was purchased through this chain of title.
Now, I also obtained certified copies of surveys of these
two parcels that compose 5281 Lake Drive. The first one
has previously been marked as 2-V. The second one is 2-
W, and they are Liber 2 of surveys, page 104, and label 3—
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Liber 3 of surveys, page 106, and these were from the
Register of Deeds office in Shiawassee found in Corunna,
Michigan.
These are both certified copies, and | would like them to
be admitted into evidence at this time.
THE COURT: Let me make sure that -
THE WITNESS: What's interesting about these surveys
that I want the Court to be aware of is that although these
are boundary surveys, they take the trouble
Trial Transcript page 399 Mr. Vanraemdonck
THE COURT You may go right ahead, Dr. Yee
MR.YEE I have here Liber 2 of surveys, page 104, that I
would like marked, and | will ask the witness to examine it
while it’s being marked.
(At 10:36 a.m. exhibit 2-V marked)
MR. YEE Here's a copy, if you want
MR. DAVISON Oh, no, Ili share
CROSS -EXAMINATION
BY MR. YEE:
Q Do you recognize this?
A Yes
Q An what -- Can you tell the -- tell the court what this
is?
A It's a certificate of land surveying
Q And what's the property?
A I believe the property is yours on Lake Bambi
Q Maybe if we looked at an aerial photograph. I’m
referring to 3-G the aerial photograph of Bamb Lake.
Could the witness point out the property for the Court,
please?
A May I orient it properly so north is up?
Q We've been examining it with this at the top left
through the entire proceedings, so.
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THE COURT It would be easier for me if you did put
north at the top.
MR. YEE: Okay. Go ahead, put the north up if the Court
would find it convenient.
Trial Transcript page 400 Mr. Vanraemdonck
THE COURT: I usually like north at the top of diagrams.
MR. YEE Okay.
THE WITNESS This is the property in question right there.
MR. YEE: Would--for the record, he pointed out 5281
Lake Drive, which Is my property. Thank you. Have a seat
please.
THE WITNESS: Thank you.
MR. YEE: I would like you to examine Liber 3, page 196,
and while it's being marked by the Court, please study it.
(At 10:39 p.m., exhibit 2-W marked)
BY MR. YEE:
Q Could you tell the Court what this document is?
A It’s a certificate of survey.
Q And what property is that referring to?
A It’s a property that’s south of the property in the first
survey.
Q Okay. If I told you that 5281 Lake Drive was purchased
in two parcels, the first parcel being shown on Liber 2,
page 104, and the second parcel being the top portion of
Liber 3, page 106, would---would--woul.d you be--would
you understand that as to be the same as what is on 1-D?
A That’s correct.
Trial Transcript page 451 William R. Yee testifying
to state to the water's edge, making these surveys of
riparian properties. So these two surveys support the chain
of title in terms of their language.
THE COURT: --okay. And we're talking about two--
THE WITNESS: 2-V, as in Victor, and 2-W, as in water.
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THE COURT: Okay. Let me let opposing counsel take a
look at them and let me know if they have any objection.
MR. DAVISON: I have only one objection, Your Honor,
with regard to 2-B and that’s only a partial objection. That
portion which is, in fact, a survey which has been recorded
I have no objection to, but you will note that there is
hearsay contained within the document. For instances, high
water line per owner 5/5/97 on exhibit 2-H.
MR. ASELTYNE: I think--are you referring to B or to C?
MR.DAVISON: Did you say V as in Victor?
THE WITNESS: Yes.
MR. DAVISON: I beg your pardon.
MR. ASELTYNE: Neither do I, Your Honor.
THE COURT: They’re admitted, Dr. Yee.
MR. DAVISON: I simply can’t hear this morning, perhaps.
(At 9:35 p.m., exhibit 2-V 2-W received into
Trial Transcript page 407
THE COURT: Okay. And it’s your claim, Dr. Yee, that
proposed exhibit 1-D is not a survey of your property?
MR. YEE: 1-D?
THE COURT: Right. I’m trying to find out why we're
spending all this time with Libers and pages and asking this
man to read this stuff?
MR. YEE: I just--
THE COURT: Do you claim there's a mistake?
MR. YEE: --I just want to anchor it into the record that the
surveys on Liber 2, page 104, and Liber 3, page 106, are
surveys of my property.
THE COURT: I think we all agree with that.
MR. YEE: So if--if we don’t have to go any further with it
if they'll concede that point for the record.
THE COURT:I think that’s why they offer the exhibit.
MR. DAVISON: That’s why I offered it, and it’s
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Trial Transcript page 408
not proposed 1-D any more, Judge, you had entered it and
it is admitted 1-D.
THE COURT: Okay. And that’s agreeable with you?
MR. ASELTYNE: It is, Your Honor.
THE COURT: Stipulated, and we can go right on to a new
area.
BY MR. YEE:
Q Okay. If you--if you--now the other issue I want you to
review this record for and the question I’m asking you is,
anywhere in any of these deeds, this chain of title, is there a
reservation on any of the sellers to raise or lower the lake
level or to establish more than one lake level, for example,
a winter and a summer lake level
MR. DAVISON: We will concede there is not.
THE COURT: And he’s already said there isn't a
reservation here and he has never seen one, and when you
asked whether he had heard of one, it was an objection I
sustained. So, no. The answer to that is no. Next question.
Trial Transcript page 510
THE COURT: So since 2001 you've been living-
MR. YEE: I've been living there every day.
THE COURT:- -okay.
MR. YEE: And at the time I was there from ‘86 to ‘91, the
lake was unstable around 799. It would go a little bit above
it, a little bit below it, but it revolved around 799. And
starting In ‘94, It started revolving around 801,
approximately, give or take six inches, except f or those
few times when it went very low, and about that time I was
particularly interested In the appearance and I took trouble
to take photographs when It went low, but it wasn’t low
very often.
THE COURT: So what happened to make It do that? MR.
YEE: Well, the stop logs were chained in ‘94, and no one
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was--except for that period in ‘98, no one was opening the
four inch valve or the twelve inch valve, and no one was
removing stop logs. The most they did In ‘95, for some
reason, they removed the top stop log and then in April of
‘96 they got an order from Judge Fullerton that they could
replace it, so then It went. back up and it stayed up until ‘98
when for some reason from August until November, they
opened up the four inch drain and let it drain continuously
for that period of time and it went low, and that’s when |
took those pictures in ‘98.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.