By Benjamin J. Gohs, News Editor
Buy a piece of property and it’s yours to do with as you please, right? As court cases across the country have shown, it’s not always as simple as who holds the deed on a plot of land.
Most recently, a group of Walloon Lake residents has formed the non-profit Preserve the Path Inc. to fight one local waterfront property owner’s attempt at keeping strangers off his land.
“Plaintiff (Preserve the Path) was formed for the purpose of promoting and preserving Walloon Lake riparian owners’ use and enjoyment of a right-of-way that transverses approximately 112 private properties along the northeast shoreline of Walloon Lake,” Preserve the Path attorneys Schraw & Associates and Sondee, Racine and Doren, PLC stated in their late-March Circuit Court filing.
Defending against the suit are Stephen and Molly Kircher of Walloon Lake. Stephen Kircher may best be known as the son of the founder of Boyne Resorts and is its current President of Eastern Operations.
According to the filing, the Kirchers own improved land on the northeast shoreline of Walloon Lake that is transversed by the right-of-way in question.
“Plaintiff reasonably believes that the right-of-way running along the northeast shoreline has been in existence for approximately 100 years, predating North Shore Road, which now services the properties for purposes of ingress and egress,” it is stated in the filing. “The right-of-way is approximately three miles long running along the lakeshore from the Village of Walloon Lake to what is commonly referred to as ‘The Narrows’ on the northeast arm of Walloon Lake.”
The suit alleges that the portion of the right-of-way that is within the village limits of Walloon Lake is a dedicated public pathway.
“There is a substantial amount of community pride in the right-of-way demonstrated by the fact that many of the landowners whose property the right of way serves and transverses have maintained, improved and otherwise beautified the path,” they stated.
According to the court document, the Kirchers bought their property on North Shore Road in 1999 and they did not interfere with the right-of-way for approximately 13 years until the Summer of 2012 when they placed a fence at the right of way’s point of entry on the east lot line of their property and in fact at all times prior to the placement of a fence did in fact maintain the right of way.
“Those individuals wishing to use to right-of-way are now forced to bypass defendants’ property by walking from the lakeshore on the neighboring properties to North Shore Road thereafter walking along the side of the road at Defendants’ northerly lot line,” the suit stated. “Upon information and belief, defendants’ predecessor in interest never restricted public or other riparian owners’ access to the right-of-way transversing Defendants’ property (and) permission was never given nor received for the public or other riparian owners to use the right-of-way stretching from the Village of Walloon Lake to the Narrows.”
It further stated, “This equitable action seeks an order of the court requiring defendants to remove the fencing that prevents access to the right of way across defendants’ property that have been in use for approximately 100 years.”
According to Preserve the Pathway, many people have used the right-of-way in question since around 1915.
“This use has been actual, visible, open, notorious, continuous and uninterrupted for more than 15 years,” the suit stated. “Plaintiff respectfully requests that this honorable Court enter judgment in its favor declaring that it, and all other riparian owners along the shore of Walloon Lake and the public at large, are granted a prescriptive easement in the right-of-way that allows foot traffic along the northeasterly shore of Walloon Lake, that all impediments (i.e. fencing) be removed, and that the Court award Plaintiff costs and attorney fees and further relief as the Court deems just and appropriate under the circumstances.”
According to the Farlex Legal Dictionary, a prescriptive easement is an easement upon another’s real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement.
The definition continued: “The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.”
Phone calls and e-mail were not returned by the Kirchers or their attorney by press time.