Kirby v. Meyering Land Co.

The owner's claimed expressions of intention, representations, or promises that the lake front lots would be improved as a park, that no buildings would be erected on them, that plaintiffs' view of the lake would be unobstructed and their summer home quiet and peaceful, undisturbed by the nocturnal revelry of a clubhouse and the parking of many cars, made to plaintiffs when they bought, *Page 168 were not incorporated in the deed. In October, 1925, plaintiffs knew they had been breached by the completion of the clubhouse. They did not rescind, claim fraud, nor make objection. They paid the balance of the purchase price, about two-thirds, during the next three years, and obtained a deed in 1928. Controversy regarding the form of the deed was settled by plaintiffs obtaining the kind they demanded. No request was made that the early promises be incorporated in it. This is not a suit for reformation nor rescission. Plaintiffs' right to relief rests wholly upon the terms of the deed, not at all upon the early promises. The deed must be construed as it reads. The easement granted by it cannot create another or different easement for the benefit of plaintiff's. 9 R. C. L. pp. 784, 785. The deed does not expressly prohibit buildings on the lake lots. On the contrary it contemplates buildings by providing: "All buildings erected or located on lots 1-40, inclusive, shall face upon Cass lake or Clinton river as the case may be." The lake front lots, 24 to 40, inclusive, constitute a single piece of land between the road and the lake, although, having been platted, it was necessary to describe them as lots. The grant is of "perpetual use * * * in passing to and from" the lake and river, in common with all other owners. If as needs be, the irrelevant early promises are excluded from consideration, it seems obvious that the grant was of way or right of passage over the tract and does not include other use. "The grantor of the easement of a right of way may use the way in any manner he sees fit, provided he does not unreasonably interfere with the grantee's *Page 169 reasonable use in passing to and fro. The owner of the right of way has the right to a reasonably unobstructed passage at all times, and also such rights as are incident or necessary to the enjoyment of such right of passage." Murphy Chair Co. v.American Radiator Co., 172 Mich. 14. See, also, Grinnell Bros. v. Brown, 205 Mich. 134, 138. "A grant or reservation of an easement in general terms is limited to a use such as is reasonably necessary and convenient, and as little burdensome to the servient estate as possible for the use contemplated. In other words, an unlimited conveyance of an easement is in law a grant of unlimited reasonable use." 9 R. C. L. p. 787. Does the grant mean that plaintiffs have wholly unobstructed right of way or passage over every inch of every lot described? If so, the grantor could not plant a tree, provide playground equipment for children, construct bathing or boating facilities, or build anything which would require the grantees to turn aside in passing to the lake. The alternative is that the grant be construed reasonably. The space for passage to the lake is unobstructed in front of plaintiffs' lot for its whole width of 50 feet, and, in addition, for about 75 feet on one side and 200 feet on the other. The lots upon which the clubhouse is built have ample space, both in front and rear, to permit passage. The clubhouse is for the benefit of all lot owners and is not such a private appropriation of the lots on which it is located as restricts passage over the unoccupied portion of them. The clubhouse does not require plaintiffs to turn aside from a straight course to reach any part of the lake or river as much as would a park, beautified with lawns, fountains, gardens, bushes, and trees, or as would an ordinary resort development, with the *Page 170 paraphernalia for the amusement of adults and children. Unless the construction first mentioned be adopted, or it be held that plaintiff's right of way created other easements, and, in my opinion, neither is tenable, the clubhouse does not violate the grant because it does not interfere with a reasonable way or passage between plaintiffs' lot and the lake or river. In circuit court it was agreed that the signboard should be removed, and it was eliminated from the case. Decree is affirmed, with costs. CLARK, C.J., and McDONALD, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred with FEAD, J.