MICHIGAN DEPARTMENT OF
NATURAL RESOURCES,

Plaintiff,

v

CARMODY-LAHTI REAL ESTATE INC.,
a Michigan corporation,

Defendant.

The matter before the Court originated in mutually incompatible claims concerning the ownership of certain real property in the City of Hancock. However, it would be incorrect to characterize this dispute as "simply" a property-boundary dispute, since, were it so, it should have been relatively easily resolved, either through joint investigation by and mutual agreement among the parties or via appropriate legal action.

This conflict ceased to be a simple property-boundary dispute when, over a period of more than two years, one party (Defendant Carmody-Lahti) engaged in repeated and futile efforts to engage the other involved parties (including Plaintiff Michigan Department of Natural Resources) in discussions intended to lead to resolution. Over this prolonged period numerous letters were addressed by Defendant’s attorney to, inter alia, the Defendant, the Michigan Department of Transportation, the City of Hancock and Main Street Hancock, Inc. Unfortunately, neither Defendant nor Defendant’s attorney received any response to these appropriate and nonconfrontational overtures.

On May 13, 1997, this Amicus Curiae, in his capacity as president of the Great Lakes Property Rights League, wrote as follows to K. L. Cool, director of Plaintiff MDNR:

The issue here is not the relative merits of the claims of Carmody-Lahti and of MDNR Rather, the issue is the means employed by MDNR to "resolve" this dispute. For at least two years Carmody-Lahti has attempted to secure resolution, but numerous letters from its attorney to MDNR, MDOT, Main Street Hancock and the City of Hancock have gone unanswered. MDNR has simply encroached upon the property, ignoring the notifications from Carmody-Lahti’s attorney.

... In the event of a dispute between a private owner and the State concerning property ownership, the State can enjoy prerogatives no greater or different than those enjoyed by the private owner.

Responding on behalf of the director, on May 27, 1997, James Ekdahl, characterizing the "uniformed [armed] agent [as] in attendance to keep the peace and to assist with resolution," wrote:

"No party or entity involved in this issue is well-served by confrontation. If there is a dispute over title to this property, then the appropriate venue to resolve this issue is in a court of law, and this agency is content to have the issue resolved accordingly."

While this was precisely the position advocated by this Amicus Curiae to Cool on May 13, 1997, from May 27, 1997, through November 1997 no legal action challenging the Defendant’s property claim was initiated by Plaintiff; rather intimidation and threats of force continued.

Only in December 1997 has the Plaintiff seen fit to initiate legal action, and the commencement of the seasonal activity constituting the primary public use of the disputed property is now argued to justify emergency action by this Court, in the form of a preliminary injunction. The City of Hancock (Exhibit 3 of Verified Complaint), which with the Plaintiff ignored for over two years the repeated overtures from Defendant’s attorney, now decries the "irreparable economic harm" threatened by Defendant’s enclosure of the property (Verified Complaint, ¶ 15).

This Amicus Curiae and the Board of Directors of the Great Lakes Property Rights League, which endorsed the filing of this amicus brief, believe that the State waived any right to emergency action by this Court when it attempted to substitute force and intimidation for appropriate legal action and then, when that extralegal approach had failed, procrastinated for over six months (in all for over two years) in initiating appropriate legal action. Moreover, we believe that there exists ample legal precedent in support of our position.

Finally, we question the "irreparable harm" which Plaintiff argues will eventuate in the absence of emergency action. In fact, the larger trail system of which the disputed property is a part is even now in active use, as users detour around the portion enclosed by Defendant’s fence. If the Court should conclude that a preliminary injunction is not foreclosed on legal and equitable grounds, at the least it should conduct an evidentiary hearing on this matter, hearing witnesses under oath, rather than blindly accept the unsupported statements of Plaintiff, its attorneys and exhibitors.

It is notable that for "some nine years prior to Defendant’s trespass and encroachment [sic]"2. (Plaintiff’s Brief in Support of Motion for Preliminary Injunction, henceforth "Plaintiff’s Brief") Plaintiff did not "claim" the property at issue here; Plaintiff simply "used" the property (built and maintained a recreational trail). This characterization is especially clear after October 10, 1995, the date of the first letter from Defendant’s attorney addressed to Plaintiff and stating Defendant’s claim to the property.

In the absence of a claim which could be contested, i.e., in the face of Plaintiff’s silence in response to Defendant’s communications, Defendant faced a dilemma: Either (a) take no action and risk eventual loss of the property through either acquiescence or adverse possession; or (b) act to prevent further encroachment on the property, preventing loss through either acquiescence or adverse possession.

The threat to the Defendant posed by a continuation of the status quo pre May 8, 1997, should be clearly understood. For a period of seven years (from Plaintiff’s putative acquisition of the property in 1988 through October 10, 1995, when Plaintiff was notified of Defendant’s claim by letter of the latter’s attorney), Defendant simply "acquiesced" in Plaintiff’s use of the property, treating the line established by the State as defining the edge of the trail as the true property boundary. Were this situation to have persisted for a total of fifteen years, Defendant would lose the property through acquiescence, which the Michigan Court of Appeals, in Walters v. Snyder,__ Mich App __; __ NW2d __ (August 29, 1997; No. 193694), has defined as follows:

[A] claim of acquiescence to a boundary line based upon the statutory period of fifteen years, MCL 600.5801(4); MSA 27A.5801(4), requires merely a showing that the parties acquiesced in the line and treated the line as the boundary for the statutory period, irrespective of whether there was a bona fide controversy regard-ing the boundary. Sackett v Atyeo, 217 Mich App 676, 681; 552 NW2d 536 (1996).

Note that at least seven of the fifteen years of acquiescence had passed when Defendant first brought its claim to the attention of Plaintiff.

Thus, Defendant’s notification of Plaintiff, by its attorney’s letter of October 10, 1997, can be viewed as having the effect of avoiding a claim of acquiescence. This effect is particularly important in light the standard of proof required by the courts in acquiescence cases. Thus, the Michigan Court of Appeals, in Walters v. Snyder, supra, has held that the "the proper standard applicable to a claim of acquiescence is proof by a preponderance of the evidence."

However, by avoiding a future claim of acquiescence Defendant exposed itself to a claim of adverse possession, defined as follows by the Michigan Court of Appeals, in Walters v. Snyder, supra: [A] claim of adverse possession ... requires a showing by clear and cogent evidence that the possession was "actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of 15 years, hostile and under cover of a claim of right[,]" McQueen, supra at 643, citing Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957), ...

Having been placed on notice of Defendant’s claim, and refusing to respond to Defendant’s attorney’s repeated requests to resolve the apparent conflict, the Plaintiff’s possession certainly became "actual, visible, open, notorious, exclusive, continuous, ..., hostile and under cover of a claim of right [the MDNR deeds referenced in letters from Defendant’s attorney]." While the standard of proof was raised, from "a preponderance of the evidence" (acquiescence) to "clear and cogent evidence" (adverse possession), Defendant’s notification conjoined with Plaintiff’s silence would have permitted Plaintiff to meet this higher standard, were Defendant to take no action to enforce the property right which it believed (and continues to believe) it has in the subject property. And note, again, that, by its silence, Plaintiff can be interpreted as pressing no enforceable counter claim.

In short, by acting, in May 1997, to enclose the subject property with a fence, Defendant was stopping the clock (after the passage of nine years of the statutory fifteen-year periods) on possible future claims of acquiescence or adverse possession. If Defendant’s title is "good," it was acting to ensure that it continued to be so; alternatively, if Defendant’s title is invalid, it was notifying Plaintiff of its need to establish that invalidity. And, again, this action came almost two years after Defendant attempted to engage Plaintiff in discussions directed at resolving the apparent conflict and thus avoiding risks and damages to both parties.

Unfortunately, Plaintiff ignored Defendant’s invitation to seek resolution. From October 10, 1995, to May 8, 1997, Plaintiff ignored Defendant’s claim, and from May 8, 1997 through November 1997 Plaintiff sought to establish not a legal claim but physical possession through intimidation (including threats of ancillary felony prosecution of Defendant’s owner-agent) and threats of force.

Turning to the issue of Plaintiff’s Motion for Preliminary Injunction, Plaintiff’s Brief (pp. 3-4) is rather misleading in its summary of the relevant "[c]aselaw" [sic]. As most recently stated by the Michigan Court of Appeals, in Township of Addison v. Department of State Police, __ Mich App __; __ NW2d __ (December 20, 1996, No. 196587):

The grant or denial of an injunction is reviewed for an abuse of discretion. Senior Accountants, Analysts & Appraisers Ass'n v Detroit, 218 Mich 263, 269; 553 NW2d 679 (1996). Whether a preliminary injunction should issue is determined by a four-part analysis: (1) harm to the public interest if an injunction issues; (2) whether harm to the applicant in the absence of a stay outweighs the harm to the opposing party if a stay is granted; (3) the strength of the applicant's demonstration that the applicant is likely to prevail on the merits; and (4) demonstration that the applicant will suffer irreparable injury if a preliminary injunction is not granted. Michigan State Employees Ass'n, supra, pp 157-158. Whether an injunction should issue will often also include consideration of whether an adequate legal remedy is available to the applicant. Id., p 158.

Most disturbingly, Plaintiff’s Brief’s consideration (4), "the public interest," appears to weigh the public interest if an injunction issues against the public interest if an injunction does not issue. In contrast, the Court of Appeals identifies only the "harm to the public interest if an injunction issues ." [Emphasis added] Plaintiff’s misrepresentation camouflages its focus only on the harm to the public interest if the preliminary injunction does not issue, to wit, the purported "irreparable harm" resulting from the purported inability of groomers to groom and of snowmobilers to use the segment of trail affected by this dispute.

In fact, as will be discussed further, substantial questions can be raised concerning this "irreparable harm," and, should the Court’s decision on the Motion or Preliminary Injunction, hinge on this issue, it is incumbent on the Court to conduct a full evidentiary hearing on this matter.

More seriously, Plaintiff fails to consider the "harm to the public interest if the injunction issues," the only public-interest consideration identified by the Court of Appeals. And here, we would argue, the most important public-interest consideration concerns the legitimacy and acceptability of intimidation and threats of force to secure the resolution (burial) of what should be civilized legal disputes. Plaintiff had more than ample opportunity, between October 10, 1995, and May 8, 1997, to attempt to negotiate a settlement with Defendant or to secure appropriate judicial resolution of this matter. It failed to do so. In fact, it failed even to respond to Defendant’s notification that there existed a conflict which required resolution.

Even if Plaintiff’s property claims are ultimately determined by the Court, on the merits, to be valid, and those of Defendant to be invalid, were the Court to grant the preliminary injunction prior to adjudication on the merits it would signal to others that intimidation and force are appropriate means by which to achieve one’s ends, temporarily if not permanently. Such a signal, as an encouragement to violence and intimidation, is certainly not in the public interest. And, again, the Court of Appeals would not balance this public disinterest against the public interest in access to the trail.

Turning to the second consideration identified by the Court of Appeals (and by Plaintiff), "whether harm to the applicant in the absence of a stay outweighs the harm to the opposing party if a stay is granted," this is an evidentiary matter. First, viewing the Plaintiff narrowly, as a State bureaucracy, the absence of a stay would appear to impose no significant harm on the Michigan Department of Natural Resources.4. And, if the Plaintiff is viewed as the surrogate for the users of the trail or the businesses which they patronize (or would have patronized), the Court should require testimony from those users and businesses (or from neutral, independent observers) of the burden imposed by the closure of this small segment of trail. Concerning the harm to the opposing party (Defendant), the most obvious is that identified in the discussion of the public interest; granting of the preliminary injunction would notify Defendant that the better part of valor, is to acquiesce to demands of the State, regardless of the merits of one’s case. Other harms to the Defendant, while possibly real and substantial, are beyond the knowledge of this Amicus Curiae and are left to the Defendant to plead. We would only note that this balancing of "harms" is only one of four (in fact, for the Court of Appeals, five) considerations identified as relevant to the issue of granting or refusing preliminary equitable relief.

The third consideration identified by the Court of Appeals as relevant to preliminary relief, "the strength of the applicant's demonstration that the applicant is likely to prevail on the merits," appears from the briefs of the parties to have no relevance at all. Both Defendant and Plaintiff offer details of deeds, disquisitions on property law, opinions of title experts, policies of title insurors, ..., in support of their respective claims. While your Amicus Curiae can offer no opinion on this matter, he would also opine that the Court, at this stage of the proceedings, can have no meaningful opinion on the issue either.

The final numbered consideration identified by the Court of Appeals (interestingly, the first identified by Plaintiff), "demonstration that the applicant will suffer irreparable injury if a preliminary injunction is not granted," is particularly inauspicious for the Plaintiff. As indicated, as a State bureaucracy the Plaintiff can be expected to suffer no significant injury. As a surrogate or snowmobilers and local businesses, the Court confronts concrete evidentiary questions: How many snowmobilers will avoid the route as a result of the relatively short obstruction, and what harm do they incur as a result (diversion to other, less "optimal" trails, failure to snowmobile at all)? What cost is imposed on those who do snowmobile by the necessity of detouring around the obstruction? What is the magnitude of any resultant business loss to local merchants? In any event, most of these "injuries" would not appear to be "irreparable."

Finally, we come to the fifth consideration identified by the Court of Appeals (and, significantly, ignored by Plaintiff): "Whether an injunction should issue will often also include consideration of whether an adequate legal remedy is available to the applicant." Here, Plaintiff is in the position of the emperor in his "new clothes," to wit, naked. In fact, numerous "adequate remedies" not only are but long have been available to the Plaintiff. At any time since notification of the apparently conflicting claims by Defendant’s attorney (October 10, 1995), Plaintiff could have (a) attempted to resolve the matter through joint investigation and negotiation with Defendant (as proposed by Defendant’s attorney), (b) taken unilateral action to secure its claim (e.g., constructed a fence on what it considered to be the property boundary, thus placing the proverbial ball in "Defendant’s court"), or (c) sought appropriate judicial adjudication (declaratory judgment). In fact, Plaintiff took none of these actions. Even after Defendant began construction of its fence, Plaintiff avoided this Court, preferring a unilateral exercise of force and intimidation.

This brings us to the equitable doctrine of laches: The issue here is not only one of what remedies are (now) available to Plaintiff, but of what remedies have (long) been available. A superb summary is provided the United States Supreme Court in GILDERSLEEVE v. NEW MEXICO MINING CO, 161 U.S. 573 (1896). First, Gildersleeve, supra at 578, cites Hammond v. Hopkins, 143 U.S. 224, 12 Sup. Ct. 418, where the Court, speaking through Mr. Chief Justice Fuller, said:

No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere where there has been gross laches in prosecuting rights, or where long acquies-cence in the assertion of adverse rights has occurred.

While Plaintiff may have been aware of its conflict of rights with Defendant earlier, this conflict was certainly brought to Plaintiff’s attention by Defendant’s attorney on October 10, 1995. Does Plaintiff’s failure to act after that date reflect that Plaintiff was "destitute of conscience, good faith, and reasonable diligence" and guilty of "gross laches in prosecuting rights, or [of] long acquiescence in the assertion of adverse rights"? On this issue Gildersleeve, supra at 578, cites Galliher v. Cadwell, 145 U.S. 368, 12 Sup. Ct. 873, speaking through Mr. Justice Brewer:

The question of laches turns not simply upon the number of years which have elapsed between the accruing of her rights, whatever they were, and her assertion of them, but also upon the nature and evidence of those rights, the changes in value, and other circumstances occurring during that lapse of years. The cases are many in which this defense has been invoked and considered. It is true that, by reason of their differences of fact, no one case becomes an exact precedent for another; yet a uniform principle pervades them all.

At a minimum, that principle dictates that a party which has studiously avoided adjudication of a claim on its merits must be denied access to extraordinary, even if temporary, equitable remedies.

In Speidel v. Henrici, 120 U.S. 377, 7 Sup. Ct. 610, the United States Supreme Court, speaking through Mr. Justice Gray (page 387, 120 U. S., page 610, 7 Sup. Ct.), said:

Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them. 'A court of equity,' said Lord Camden, 'has always refused its aid to stale demands where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court." [161 U.S. 573, 579] In Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 Sup. Ct. 78, and Mackall v. Casilear, 137 U.S. 556, 11 Sup. Ct. 178, it was declared to be correct doctrine that the mere assertion of a claim, unaccompanied by any act to give effect to it, could not avail to keep live a right which would otherwise be precluded.

The Court here confronts a "mere assertion of a claim, unaccompanied by any act to give effect to it" (prior to the filling of this action). For well over two years Plaintiff has "slept upon his rights." Given Plaintiff’s lack of "conscience, good faith, and reasonable diligence," this Court should remain passive and do nothing prior to adjudication of the claims of the respective parties on their merits.

This Amicus Curiae would reemphasize that he does not assert (and the Great Lakes Property Rights League does not assert) any position on the merits of the substantive positions of the respective parties (concerning valid title to the property in dispute). However, we do strongly urge that the Court not permit itself to become another (quasilegal) weapon in the arsenal of the Plaintiff’s effort to secure extralegal resolution of this conflict.

Stephen P. Dresch,
Amicus Curiae,
In pro per

Dated: December 11, 1997

RESOLVED: Judge Roy Gotham refused to issue injunction (citing much of my argument), ordered the construction of a temporary trail elsewhere, and the case is now proceeding to a resolution on the merits.