sunset shores mi · web viewstate of michigan. in the berrien county trial court. william g....
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STATE OF MICHIGANIN THE BERRIEN COUNTY TRIAL COURT
WILLIAM G. WORMUTH,
Plaintiff,
V Case No. 2007-0127-CH
ARLENE POKUTA, SECRETARY OFSUNSET SHORES, et al.,
Defendants._______________________________/
NON-JURY TRIAL
BEFORE THE HONORABLE ALFRED M. BUTZBAUGH, TRIAL JUDGE
St. Joseph, Michigan - Tuesday, September 13, 2011
APPEARANCES:
For the Plaintiff: MR. TRACY D. KNOX, P511706th Floor, 1st Source Bank Center100 North Michigan StreetSouth Bend, IN 46601(574) 233-1171
For Defendant Sunset Shores: MR. RANDY S. HYRNS, P31333610 Ship St., PO Box 290St. Joseph, MI 49085(269) 983-0551
For Defendant Harbor CountryLLC, et al.: MR. FRANK J. DEFRANCESCO, P39540
728 Pleasant St., Ste. 204St. Joseph, MI 49085(269) 983-1400
RECORDED BY: Vivian V. Burton, CER-3572Certified Electronic Recorder(269) 983-7111, Ext. 8386
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TABLE OF CONTENTS
WITNESSES: PLAINTIFF PAGE
MICHAEL KNIGHT
Direct examination by Mr. Knox 40No cross-examination --
WILLIAM WORMUTH
Direct examination by Mr. Knox 42Cross-examination by Mr. Hyrns 78Redirect examination by Mr. Knox 102Cross-examination by Defendant Lemonnier 103Redirect examination (continued) by Mr. Knox 111Re-cross examination by Mr. Hyrns 115
BRIAN LIEBERG
Direct examination by Mr. Knox 121Cross-examination by Mr. Hyrns 127
WITNESSES: DEFENDANT
RONALD G. WATSON
Direct examination by Mr. Hyrns 138Cross-examination by Mr. Knox 152
JAMES REIMANN
Direct examination by Mr. Hyrns 187Cross-examination by Mr. Knox 192Redirect examination by Mr. Hyrns 196
DAN DEVLIN
Direct examination by Mr. Hyrns 198Cross-examination by Mr. Knox 203
EDWARD SLINGSBY
Direct examination by Mr. Hyrns 210Cross-examination by Mr. Knox 231
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REBUTTAL WITNESSES: PLAINTIFF
ALICE LITTLE
Direct examination by Mr. Knox 258No cross-examination ---
EXHIBITS: MARKED RECEIVED
PX A Sunset Shores #1 --- 34PX B Sunset Shores #2 --- 34PX C Sunset Shores #3 --- 34PX D Sunset Shores #4 --- 34PX E Sunset Shores #5 --- 34PX F Sunset Shores #6 --- 34PX G Sunset Shores #7 --- 34PX H Easement, liber 169 --- 34PX I Corrected deed of easement --- 34PX J 1968 Judgment --- 34PX L Drawing --- 126PX M Proposed modification --- 127PX N Photograph --- 71PX O Photograph --- 71PX P Photograph --- 71PX Q Photograph --- 71PX R Photograph --- 71PX S Photograph --- 71PX T Photograph --- 71PX U Resolution --- 34PX V Photograph --- 71PX W Survey --- 112B-1 Warranty deed --- 82B-2 Building permits --- 85B-3 Photograph --- 89B-4 Letter --- 90B-5 Document 133 ---B-5 Photograph 134 135B-6 Photograph --- 192B-7 Newspaper article --- 197B-8 Photograph --- 219B-9 Letter --- 227
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St. Joseph, Michigan
Tuesday, September 13, 2011 – 8:54 a.m.
THE COURT: This is file number 20070127, Wormuth
versus Pokuta, et al. We’re here for trial. Just so everyone
is clear, we’re set for trial today and Friday, and Friday is
the 16th. Are you prepared to proceed?
MR. KNOX: We are, your Honor.
THE COURT: Okay. Before we start, I know there are a
number of attorneys here, and are--there are some people here
who are not--who are representing themselves. Would you raise
your hands? Is anybody here representing themselves? Okay.
I’m gonna ask you to step-- Okay, I’m gonna ask you to step--
Okay, I’m gonna ask you to step forward and state your name.
Just come up, right up in here.
UNIDENTIFIED PERSON: Name is
THE COURT: Just-- Just--
UNIDENTIFIED PERSON: --Ron
THE COURT: Sir? Sir, please. Come right--
UNIDENTIFIED PERSON: Oh.
THE COURT: --up here.
THE COURT OFFICER: Come right up here to the
microphone.
UNIDENTIFIED PERSON: Thank you. Name is Ronald
Ginani--
THE COURT: And how do you--
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MR. GINANI: Resident--
THE COURT: --spell that?
MR. GINANI: G-I-N-A-N-I.
THE COURT: Okay.
MR. GINANI: Wi-- With Roberta Ginani, my wife.
THE COURT: Okay.
MR. GINANI: And we are residents at 1181 Shore Drive
in New Buffalo.
THE COURT: Okay. And what is your first name again?
MR. GINANI: Ronald.
THE COURT: Okay. Okay, thank you. Step aside.
UNIDENTIFIED PERSON: My name is Shari Lemonnier.
That’s L-E capital M-O-N-N-I-E-R. I’m representing myself and
my husband, Daniel D. LeMonnier. And we have two properties in
Sunset Shores; 337 North Eagle and 305 North Berrien.
THE COURT: Okay. And what is your first name again?
MISS LEMONNIER: Shari. S-H-A-R-I.
THE COURT: Okay, thank you.
MISS LEMONNIER: Thank you.
UNIDENTIFIED PERSON: My name is Danuta Stewart. I’m
THE COURT: S-T-E--
MISS STEWART: I’m repre--
THE COURT: --W-A-R-T?
MISS STEWART: Yes.
THE COURT: Okay. And your first name?
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MISS STEWART: Danuta. D-A-N-U-T-A.
THE COURT: Okay.
MISS STEWART: I represent myself. I live in 1128
West Water Street.
THE COURT: Okay, thank you. Is anyone else here
representing themselves?
Okay, for the three of you, you--we’ll proceed. If
you-- You’ll be given an opportunity to examine witnesses if you
choose to do so, but we will--you--just so you understand,
you’ll be required to follow the same rules of evidence as do
the attorneys. Okay, Mr. Knox?
MR. KNOX: Yes, your Honor. A preliminary matter, we
had filed a motion to substitute Freedom Financial Acquisition
LLC, which is the successor and interest to property owned by
Julia Knapp. The Court will recall, yesterday it granted an
order permitting Sally Taylor to withdraw her representation of
Mrs. Knapp due to the death of Mrs. Knapp and the acquisition of
the property by Freedom Financial LLC. We filed the motion to
substitute Freedom Financial LLC, however, we believe we can
proceed without Freedom Financials presence because, number one,
Miss Taylor provided notice to these proceedings to Freedom
Financial - that’s documented in her pleading, as well as our
pleading; number two, Michigan Court Rule 3.411 indicates that a
judgment entered by this Court would be binding on Freedom
Financial, as Freedom Financial is a successor and interest to
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Julia Knapp, who was properly made a party to the lawsuit;
number three, that lot was located in Oliver B. England
Subdivision, which is separate from the Sunset Shores
Subdivision. Those entities-- Those lot owners were named a
party to this suit out of an abundance of caution. So, an--an
amendment to the subdivision plat of Sunset Shores would have no
impact on an owner in Oliver B. England.
If there is no objection from any of the parties,
we’re prepared to proceed without Freedom Financial Acquisition
LLC.
THE COURT: Okay. Does anyone object to what Mr. Knox
has proposed? Okay, I see no one.
MR. KNOX: Very good. Opening remarks, your Honor?
THE COURT: Certainly.
MR. KNOX: As your Honor knows, this is an action to
correct the subdivision plat for Sunset Shores Subdivision
Number 5 so that the plat reflects the current location of a
walkway that’s used by property owners at Sunset Shores Number 5
to access a community beach.
There’s a couple of things at the outset for the
benefit of the Court and the benefit of those that are in the
courtroom. There’s a couple of things we need to point out that
we are not trying to do. Number, we’re not trying to relocate
the walkway. The walkway is presently located on the east side
of Lot 24, west side of Lot 25, between the two lots.
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THE COURT: You mean you’re not trying to relocate the
physical--
MR. KNOX: Correct. Yes, sir. We’re not trying to
relocate the walkway rather we are only asking that the
subdivision plat be amended to reflect the current location.
There’s a couple of other things that we’re not trying
to do. We are not trying to change the community beach area
that is used--that’s currently used by property owners in Sunset
Shores Number 5. We’re not trying to change the beach area.
Another thing we’re not trying to do, we are not
trying to affect anyone’s interest in a creek that abuts Lot
number 25, and other lots at Sunset Shores Number 5, for that
matter. Some individuals have suggested they have the right to
use that creek by prescription to access the beach area. If
the-- If the right exist, so be it. If the right doesn’t exist,
so be it. That is an issue to be litigated another day. That’s
not part of what we’re asking the Court to do here today. The
only thing we are trying to do is have the Court enter a
judgment and a revised subdivision plat that reflects the status
quo as it exist on the ground, nothing more.
For orientation purposes, Exhibit E is a copy of the
Sunset Shores Subdivision Plat Number 5.
THE COURT: Just a second.
MR. KNOX: And I have a--an exhibit book that I can
provide to the Court as well.
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THE COURT: Okay. Mr. DeFrancesco had included some
of those things, which I’ve gone through. I just wanna make
sure I’ve got... This is... You... That is Sunset Shores?
MR. KNOX: This is Sunset Shores Number 5.
THE COURT: Just a minute. Okay.
MR. KNOX: And it’s--it’s difficult to see but you can
see but you can see that here’s Lot 25. Lot 25 is owned by Bill
Wormuth and Gayle Wormuth. Lot 24 on Sunset Shores Number 5 is
owned by Mr. George Salerno, that’s represented by Mr.
DeFrancesco. And you can see a 10-foot walk between the two--
the two lots. On the east side of Sunset Shores is the creek
that I just mentioned. On the north side of Sunset Shores is
the beach. The 19th-- The plat, Sunset Shores Number 5, which
was recorded in 1961, established that walkway. The walkway
that has been used by residents of Sunset Shores Number 5 has
been, substantially, that walkway ever since the subdivision
plat was recorded. The location of the walkway, as it exists on
the ground, has been, essentially, the same, indefinitely, since
the point that the walkway was actually created.
THE COURT: You mean, since the plat of 1961?
MR. KNOX: Since the plat of 1961, and--and like,
even, before this was platted that was likely a walkway.
However, certainly by ’61 forward the point of platting the--the
plat.
THE COURT: So does the plat include the--the
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description of the walkway?
MR. KNOX: The plat does not include the description,
although the plat has it marked out by meets and bounds, so you
can see the location. The plat clearly identifies the existence
of the walkway.
In 1968--August of 1968, Berrien County Circuit Court
entered a judgment, and the judgment purported to create a
community beach, a defined community beach, along with the--the
beach front. That’s what we’re not contesting. That stays.
The judgment also purported to move the walkway, eastward, onto
Lot 25 by approximately 10 feet. Now, there’s a couple of
problems with that--that 1968 Judgment. The first problem is
that that 1968 Judgment, on the ground, was never put into
effect. After the ‘68 Judgment was entered by the Court, that--
the plat was not redrawn and re-recorded, as required by the
land division act, specifically, 560.229. 560.229 says that if
you want to effectively modify a subdivision plat, you have to
get the Court to enter the judgment, you record the judgment in
30 days, and then you have to have the plat redrawn, go through
approval process and re-record that plat within 90 days of entry
of the judgment. That was never done. So, in terms of
affecting the property interest associated with this plat, the
1968 Judgment was not affected. It-- As a matter of law, it did
not affect the subdivision plat itself.
The second problem with that 1968 Judgment, as I
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mentioned, is that, on the ground, nothing changed; everyone
continued to use the exact same walkway that they had used
prior, and to this day, they continue to use that walkway.
What we ask is that the Court enter an order that
requires the Warmouths to file an amended subdivision plat that
reflects the current location of the walkway, and, that
preserves the beach easement, the--the area that’s presently
used as the beach down by--on--on the north end that preserves
that area for the benefit of all residents of Sunset Shores.
The creek that is boarding to the west-- Let me back
up. The Court might recall that following a conference with--
with your Honor, you indicate that--indicated that in
conjunction with the Attorney General Representative, Mr.
Scherbarth, the Wormoth--Wormuth should prepare a proposed
consent judgment and circulate that among all of the parties
and, to the extent a party had an objection, they were to
provide those objections by August 4th, I believe. We did
receive some objections. All objections have been resolved with
the exception of the objections that have come submitted by Mr.
Hyrns. Those objections remain.
The two objections that were raised and readdressed in
front of the Court during the--a preti--trial conference by Mr.
Hyrns and Mr. Slingsby, the two objection were, number one, “We
have concerns that the beach area is being maintained in its
entirety.” There was concern that somehow a beach area that
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existed in front of Sunset Shores Number 2, on the other side of
the creek, that that beach area was being--was not going to be
maintained by what we asked the Court to do.
We circulated a--an additional proposed language for
the consent judgment that expressly says, the document that
created this beach easement is not vacated, remains in full
force and effect. So this beach easement in front of Sunset
Shores Number 2 will not be affected in any way, shape or form
by what we’re asking the Court to do.
The other objection that was raised was some residents
claimed the right to use the creek that borders the subdivision
on the east, use that creek as a means of access to the beach.
In addition to the walkway, some residents who live on the east
side of the creek have, in the past, used that creek and wanna
be able to continue to use that creek.
We also circulated a revision to the proposed consent
judgment that said, to the extent anybody has a prescriptive
right to use that beach area that prescriptive right remains.
We have-- In fact, we--anything to do with the creek, really,
isn’t part of what we’re asking for. Anything-- The only thing
that we’re asking for, the only thing, is that the plat be
redrawn to show the present location of the walkway between Lots
24 and Lots 25.
The standard set forth by the courts concerning the
amendment of the plat is once we set forth a proposed plat
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amendment, the burden shifts of those who oppose amendment of
the plat to come forth with a reasonable objection. And some of
the courts have gone on to define reasonable objection as; not
being inconvenienced - that’s not a reasonable objection -
personal preference is not a reasonable objection. The standard
for a reasonable objection is fairly high. The standard for a
reasonable objection is that it is of substance and value to the
public. That’s the standard for a reasonable objection. And
those words were taken from the Feller decision that we attached
to our trial brief. Reasonable objection: Substance and value.
It is not possible for members of Sunset Shores Number 5 to
articulate a reasonable objection to memorializing in the
written documents the very walkway they’ve always used. It’s
not possible, other than for personal preference, other than
for, I would rather walk 10 feet to the right, it’s not possible
to articulate a per--a reasonable objection to memorializing the
walkway that has served that subdivision effectively since the
subdivision was ever created. In fact, if you were to look at
what the Wormuths are--are giving up, if you look at what the
Wormuths are doing, the Wormuths are providing a walkway that,
actually, when it wa--ultimately was platted, when the walkway
was ultimately drawn, it actually had moved over onto Lot 25 by
several feet. So, in reality, the Wormuths, by agreeing to--to
this consent judgment, are giving up several feet of their
westerly lot line.
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The other thing the Wormuths are doing is the 1968
Judgment, even though it’s not valid because it wasn’t
properly--the plat wasn’t redrawn and recorded, the 1968
Judgment created an easement to access community beach, as
opposed to a dedicated walk. The Wormuths have agreed, and this
was part of the--the conversation that followed the settlement
conference I discussed, the Wormuths have agreed to have the
walkway, as it presently exist, not to be an easement, but to be
a dedicated plat, similar to what you see in this drawing, so
that the easement doesn’t past over the Wormuth’s property, but
rather, the Wormuths give up fee simple title to that property
and it’s dedicated to the owners of Sunset Shores.
Once the walkway is created, the property owners of
Sunset Shores will have fee simple title to that walkway. Fee
simple title protects the interest of the subdivision members
because, by owning fee simple title, you don’t have to worry
about the scope of an easement, permissible uses of--uses of the
easement. Fee simple title is much better interest for the--the
members of the subdivision to hold than--than an easement over--
over the Wormuth’s property.
We’re gonna call three witnesses. Our witnesses will
be very brief. We’re gonna call Michael Knight, my partner, who
assisted with identification and service of all of the parties,
so that the Court is comfortable that all parties who have been
named a party to this action have been defaulted or have
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appeared through counsel or pro--or pro se. We’ll call Bill
Wormuth, who will explain that since he bought the property the
walkway has been in the same position, nothing’s ever changed.
And we’ll call Brian Lieberg, who is a surveyor. When asked
how--how many times Brian was out at the Wormuth property, I
think he said in excess of two dozen. Brian has actually
surveyed that ‘68 Judgment and the walkway several times over on
behalf of the Wormuths, on behalf of Mr. DeFrancesco, on behalf
of the homeowners association. And Mr. Lieberg will tell you
that the drawing that he created, which is Exhibit M, moved--or,
records the walkway in its present configuration, and insures
that the area of the beach--the area of that easement, the 1968
Judgment that is used as a beach, is retained as a beach on this
drawing.
At the end of the--the trial today, we’re going to ask
the judge to enter a decree. This is the decree we’re going to
ask the Court to enter. To address the concerns that have been
raised by parties to date, I have drafted, as a separate
paragraph, a paragraph 4c, which I included on separate paper
because I didn’t want people getting confused as to revisions to
the consent decree, given the number of revisions that have gone
into it. We would ask the Court to enter the consent judgment
and, in addition, paragraph 4c. And in paragraph 4c we say,
“Expressly excluded from this provision which vacated the 1968
Judgment and the provisions of paragraph 14 below, is the
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easement recorded at Liber 169, page 22.” That’s the--the beach
are that exist in front of Sunset Shore Number 2. That
addresses the concern that there was an issue as to preserving
all of the beach area in front of Sunset Shores Number 5 and
Sunset Shores Number 2.
Additionally, notwithstanding any other provision of
this order, prescriptive easement rights, to the extent they
exist, that provide access to Lake Michigan by use of the
unnamed creek that abuts Sunset Shores Number 5 to the north,
shall not be vacated. It is not the intent of this order to
vacate such prescriptive easement rights, if any. And that
would be prescriptive easement rights that exist in this area,
along the--the north side of the subdivision.
THE COURT: Thank you.
MR. KNOX: Your Honor, after identifying this is the
proposed plat amendment, and after hearing objections that have
been identified by the parties thus far, we are confident that
the Court will determine that there is no reasonable basis to
grant this modification of the plat. Thank you.
THE COURT: On the proposed judgment that you have, I
received a brief from--I think, from Mr. DeFrancesco yesterday,
which had a proposed judgment there. Is it-- Is this one
different--
MR. KNOX: The text--
THE COURT: --than that one?
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MR. KNOX: --of the proposed judgment that was
submitter--submitted by Mr. DeFrancesco is the same. What’s
different is Exhibit A, we revised to make sure that we were 100
percent absolutely sure that there is no argument that the beach
area of the 1968 Judgment was preserved. So the drawing is
different than the one that Mr. DeFrancesco submitted. And so--
And for clarity purposes, the new drawing, at the bottom left,
says, “Revised 9-12, 2011. So, it’s identical with the
exception of that. Mr. DeFrancesco’s draft also does not
include proposed edition of Exhibit 4--or, of language at 4c.
That language addresses any of the concerns that have been--that
have been raised thus far.
The-- The language at 4c and the consent judgment have
been approved by the attorney general. They’re on board. In
fact, I have to say that the attorney general’s office pretty
much took the lead in drafting the consent judgment and
assisting Mr. Lee Berg in creating a proper modification of the
subdivision plat.
The City of New Buffalo passed a resolution--the
council passed a re--resolution that approves relocation on
paper, showing on--on paper, the present location of the
walkway.
The only objections that have been raised are those
that have been advanced through clients of Mister--Mr. Hyrns.
THE COURT: And-- And the three people who are
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representing--
MR. KNOX: And those--
THE COURT: --themselves.
MR. KNOX: --who-- That’s right. That...
THE COURT: Okay.
MR. KNOX: Well, actually, to be clear, they--we
haven’t heard objections from them but we understand their right
to appear.
THE COURT: Okay, who--anybody else of the attorneys
who would like to speak?
MR. BLEICH: Yes.
THE COURT: Okay, Mr. Bleich.
MR. BLEICH: I represent the interest of the following
people: Mr. and Mrs. Frank Holecek, Mr. and Mrs. Anthony
Consola, Mr. and Mrs. Wishart Bell, Kari O’Donnell, Linda
O’Donnell, Linda Hankus and Jeff Nate. On behalf of the parties
that I represent, we concur in the facts, the law and the
proposed judgment that is being proposed by Mr. Knox on behalf
of the Wormuths, and have no objection to it.
THE COURT: Okay. Thank you.
MR. BLEICH: And, because that is our position, we’d
like to be able to not have to sit here during the whole trial.
THE COURT: Well, I will leave that up to you because
there are others who apparently do not agree with that--
MR. BLEICH: Right.
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THE COURT: --and--
MR. BLEICH: Yeah.
THE COURT: --leave it up to--
MR. BLEICH: I assume that I could call any one of the
attorneys who would tell me if that were the case at the end of
the day and I may reappear. All right.
THE COURT: Mr. Hyrns, do you wanna speak?
MR. HYRNS: Thank you, your Honor.
Your Honor, Attorney Randy Hyrns. And Mr. Tracy Knox
is correct that there are a group of homeowners in Sunset Shores
that do not agree with the proposed plat revision as outlined by
Mr. Knox; and, if I may, your Honor, those objections are based
upon some factual discrepancies that we believe that Mr. Knox
had referred to and they, hopefully, will be substantiated
through testimony during the course of this trial.
Mr. Knox has--has indicated in court, your Honor, that
the original plat had located on it a 10-foot wide easement that
was dedicated in 1961, your Honor, and with that we concur. Mr.
Knox, however, suggested that that 10-foot walkway, or easement,
has--has always remained in the same place, in the same location
throughout passage of time, and in that regard, your Honor, the
clients respectfully suggest that that’s not the--the--a truth,
your Honor.
I would also note, your Honor, that Mr. Knox has gone
into great detail on commenting on the 1968 Judgment that was
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entered by Chester J. Byrns in this matter and why that judgment
is not effective. I did not hear Mr. Knox refer to the
corrected deed of easement that is in the chain of title of the
property owners of Sunset Shores, your Honor. And that
corrected deed of easement, essentially, provides, as did the
1968 Judgment, for a community beach as indicated in the current
drawing, as well as a walkway in the placement of that walkway,
your Honor.
So what we had, your Honor, is a 1967--recorded
September 5th, 1967, we have a corrected deed of easement and I
will submit to the Court that proofs will show that that
corrected deed of easement, essentially, got transferred into
the judgment that was entered by Chester J. Byrns in 1968. I’ve
heard no explanation from Mr. Knox as to why--if the 1968
Judgment is not effective, why then the relevant document that
should be consulted would be the corrected deed of easement of
1967.
Going back to the walkway, your Honor, it is the--I
anticipate that the evidence will show that unlike Mr. Knox’
testimony that that 10-foot is there and it has been used by the
property owners of Sunset Shores, the proposed walkway, that
that is not, in fact, true, your Honor.
On the western side of that walkway, I understand that
the evidence will show that there’s an extensive amount of--of--
of trees and shrubbery, so there isn’t a--a 10-foot walkway that
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is open for passage there. There-- There is a walkway on paper,
which is encumber or is--is displaced by shrubs and trees, so
that walkway is only a portion of that 10-foot area.
Also I believe, your Honor, that the testimony will
show that the Wormuths, they purchased their property, which is
actually Lots 25 and 26 in 1994. In 1995, the Wormuths
requested from the City of New Buffalo, and the city granted
them, a building permit, at which time, they erected a--a fence
along the westerly side of their property. At that time, your
Honor, they cut off what was then the current walkway because
they--they built a fence into that walkway and, essentially,
pushed the walkway to the west of where it had been previously.
And, again, your Honor, I believe that the--my clients and their
testimony will show that the Wormuth, essentially, barricaded a
portion of that walkway, necessitating the movement of the
walkway from the east to the west in the location that Mr. Knox
is suggesting that it’s always been used and is--and should be
located, pursuant to the dedicated plat.
Your Honor, I think the testimony will show these--
these items and that those--those issues of facts will certainly
show that--that there is no need for a modification of the plat,
given the 1967 corrected deed of easement; that, the Wormuths,
which are the plaintiffs in this matter, are requesting the plat
modification are doing so because they, essentially, created the
situation that is currently existing at the site. In other
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words, if the Wormuths had not encroached upon the dedicated
easement area with a fence and plantings, this issue they--they
created their own issue out there, is what I’m suggesting to the
Court. It wasn’t the 1968 Judgment that created the issue it
was the purchase by the Wormuths of the property in 1994 and
their erection of the fence in 1995.
It would be my submission, your Honor, that when the
testimony comes in that the Court will find that there’s
substantive property rights that are at issue, that the Wormuths
are partially at fault for their request for the relocation of
the walkway, and as such, we’re going to request that the Court
deny the requested plat modification as--as prayed for by
plaintiff and as outlined by Mr. Knox.
THE COURT: What are the substantive property rights
you’re referring to?
MR. HYRNS: Well, your Honor, the position of the--of
some of the property owners there is--is that the--that they are
having a reduced easement--I’m sorry, your Honor, reduced
acreage of the walkway. Cur-- If it is imposed as a--as Mr.
Knox has requested, we do not have a 10-foot walkway because
it’s encumbered by trees and bushes. Also, your Honor, at the
end of the walkway, because it has been shifted to the left, it
discharges on the community beach, which is less desirable of a
discharge place onto a community beach, and it is the terrain of
the property, your Honor, that causes that undesirability of the
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approach to the community beach.
THE COURT: Okay. And where-- And your clients say it
should go where?
MR. HYRNS: Your Honor, the cli--my clients,
essentially, suggest to this Court that there is no reason to
modify because we have the 1968 recorded corrected deed of
easement, and, as Mr. Knox has indicated, the--the property has
surveyed--been surveyed many times and it’s a definable area,
and that is the property--the--excuse me, that is the walkway
that they always used, that’s the walkway that they would regard
and wish to use; and that walkway, your Honor, would be from
where Mr. Knox is requesting it, moved easterly, as I have
indicated.
THE COURT: How far?
MR. HYRNS: Approximately 15 feet.
THE COURT: And that would end where--
MR. HYRNS: End--
THE COURT: --still the community beach?
MR. HYRNS: Still would come to end at the end of the
proposed community beach easement, yes, your Honor.
THE COURT: And what is the significance of that 15
feet?
MR. HYRNS: My clients don’t believe that there’s any
significance and therefore it does not need to be changed from
the 1967 judgment.
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THE COURT: And why is it that you’re--if there’s no
significance, why is it that your clients oppose it?
MR. HYRNS: Okay. Again, your Honor, the significance
is that they believe that they are receiving less of an easement
as the approach goes--
THE COURT: And--
MR. HYRNS: --to the--
THE COURT: And--
MR. HYRNS: --beach.
THE COURT: --width?
MR. HYRNS: I’m sorry?
THE COURT: Less of an easement in width?
MR. HYRNS: Yes. And-- And that the approach to the--
to the dedicated community beach is less than desirable, your
Honor.
THE COURT: Okay--
MR. HYRNS: And--
THE COURT: --so--
MR. HYRNS: --in fact, your Honor, they--they will
testify that they believe it’s a dangerous entry into the
community beach area.
THE COURT: Today do your clients--are they seeking to
change the location or leave the--the location where it is
today?
MR. HYRNS: Well, there--there are some dispute, your
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Honor, as to where the actual physical location is. From the
history of the file, the Court’s aware that there were some
modifications taken, there were some fences removed and some
bushes removed. So, I would be cautious in answering the
clien--the Court’s question as to whether or not its--where it
currently is. I believe, your Honor, that it would be moved
easterly from its current location.
THE COURT: Your-- Your clients’ asking that it be
moved easterly--
MR. HYRNS: Not--
THE COURT: --or--
MR. HYRNS: Not moved. Be-- That-- My clients,
essentially, your Honor, are requesting that it be re-put where
the 1967 corrected deed of easement places it, and that is,
further to the east, which is further onto the Wormuths’
property on--on Lot Number 24.
THE COURT: Okay. Just so I’m-- I’m just trying to
make sure I understand. So you’re ask--your clients are asking
that the physical location where it is today be moved somewhat
to the east?
MR. HYRNS: That is correct, your Honor.
THE COURT: Okay.
MR. HYRNS: That’s all I have, your Honor.
THE COURT: Okay. Any of the other attorneys?
Okay, now the three people who are representing
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themselves, do any of you have anything you would like to say at
this time?
MISS LEMONNIER: Yes, I would.
THE COURT: Okay. Step up here, if you would, please.
And you’re Miss Stewart?
MISS LEMONNIER: Pardon me?
THE COURT: You’re Miss Stewart?
MISS LEMONNIER: Shari Lemonnier.
THE COURT: Oh. Okay.
MISS LEMONNIER: And I guess... Forgive me. I’m new
to this and I wanna do everything correctly. Thank you for
explaining everything so clearly.
My concern is how this all started was, really,
concerning that prescriptive easement that you wanna put out to
another case. Alright, and the prescriptive easement being the
one that I and my renters and my tenants all use, which was the
event that initiated all of this as far as I know. And what I
wanna make sure is after today that we’re allowed peaceful use
of the easement to access our beach. When you’re talking about
reasonable objections, of substance and value, when I’m selling
a house, if I say it’s three houses from the beach, that’s a
different value than if it’s several blocks from the beach if I
have to go all the way around. But it’s a difference in value
for half of Sunset Shores. And my concern is that after today
this initial issue will not be resolved because you’re
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suggesting it be put off to a different case. And so, I’d like
to know what we should do about that today.
THE COURT: Well--
MISS LEMONNIER: The--
THE COURT: --I’m--
MISS LEMONNIER: --movement of this... I couldn’t see
from--
MR. KNOX: You need--
MISS LEMONNIER: --back there.
MR. KNOX: You need to flip.
MISS LEMONNIER: Pardon me?
MR. KNOX: Said, you need to flip if you wanna use
the--
MISS LEMONNIER: Thank you.
MR. KNOX: --Sunset Shores Number 5 map.
MISS LEMONNIER: Thank you for helping me.
There we have-- The east-- The movement of this
slightly to the right or the left affects that prescriptive
easement that we use. This butting up against some public
property that we’re allowed to access the creek if this moves
slightly to the right or to the left, that allows my children
and my renters to go across here and access that beach without
stepping on this property. And, originally, this was the area
where there was--there was concern from--from the Wormuths that
people were stepping on this corner; and so, the movement of
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that needs to reflect the needs of all of those Sunset Shores
members to the east of this. So--
THE COURT: So you’re saying the north edge of the
easement?
MISS LEMONNIER: Yes. That, moving this to the--to
the right would allow that prescriptive easement to be used in a
better way. We had-- We’ve been using this ever since the--
the--the whole court was built. It took away our--our beach
area and this became the only way that we could access that
beach, and so, that’s why it is a prescriptive easement that
we’ve been using since then.
THE COURT: Okay. Well, the--all I can tell you is,
that in reviewing the pleadings, I do not see where the
prescriptive easement is an issue--is a legal issue here.
MISS LEMONNIER: Okay.
THE COURT: Beyond that, I’ll ask that you confer with
Mr. Knox to see if he can give you any further insight.
MISS LEMONNIER: I just want it to be peacefully
resolved today. That would be--
THE COURT: Okay. Well, it’s not an issue.
MISS LEMONNIER: Okay. Thank you.
THE COURT: So if it’s not an issue, it will not be
resolved.
MISS LEMONNIER: Thank you.
THE COURT: Okay. Anyone else who’s representing
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themselves? Mr. Ginani or Miss Stewart?
MR. GINANI: No.
THE COURT: Okay. Either, wish to proceed? Mr. Knox?
MR. KNOX: It’s somewhat out of the ordinary, but, if
your Honor would permit an additional opening remark, I might be
able to helpfully--hopefully narrow the issues even further for
the Court.
THE COURT: Okay.
MR. KNOX: The-- In order to modify the subdivision
plat itself, it’s not necessary for us to show that--that 1968
Judgment was invalid and it wasn’t effective. We can modify the
subdivision plat under the standard set forth in the Land
Division Act and interpreting case law if we set forth the
proposed amendment and there is no reasonable objection. The
two property interest that are affected by the location of that
walkway, 10 feet one way or 10 feet the other, or 20 feet one
way or 20 feet the other, whatever would be--are the Wormuth’s
and Mr. Salerno. The Wormuths are giving up several feet for
the walkway to be placed where it is compared to the 19--or,
compared to the--the subdivision plat.
Now, as a matter of clarity, that 1968 Judgment did
two things. Mr. Hyrns mentioned the 1967 corrected deed of
easement. And we’ll admit all of these--these documents so the
Court can review them. But, that 1967 corrected deed of
easement created the beach area that was referenced, that we
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wanna remain intact, and the corrected deed of easement also
shifted the walkway to the right, also where the ‘68 Judgment
is. So the corrected deed of easement and the ‘68 Judgment, in
terms of the walkway, are one in the same. The difference is,
however, that the ‘68 Judgment did two things; it vacated the
easement, the ‘68 Judgment expressly says, “The easement set
forth in corrected deed of easement, which said deed has been
recorded, Liber 813, pages 42, 43, officeter (sic) register of
deed--Office Register of Deeds, be and the same is hereby
vacated.”
THE COURT: Now, that is which--which--
MR. KNOX: I’m sorry. This is the ‘68 Judgment.
THE COURT: I know. I understand that. But it’s
vacating which easement?
MR. KNOX: The corrected deed of easement--
THE COURT: That’s the--
MR. KNOX: --that--
THE COURT: --’67, correct?
MR. KNOX: ’67. That’s right. That Mr. Hyrns
mentioned. It vacated it. Now, to be effective-- Now, that--
vacation of that easement is not a modification of the
subdivision plat. Vacation of that easement can be ordered by
the Court without going through the process of modifying the
subdivision plat.
So, if you were to look at the documents, solely, and
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you were to track them back, you would see the ‘68 Judgment that
purports to modify the subdivision plat, but it’s ineffective,
the ‘68 Judgment also effectively vacated the ’67 corrected deed
of easement. Now, when those two--those two interests are
vacated, what does that leave you with? It leaves you with what
we have right now. It leaves you with the walkway as it is
platted in the Sunset Shores Number 5 plat.
Now, we’re not here arguing that that should be the
walkway; because we can say, oh, let’s push it back here,
that’ll be the walkway. Folks would stand up, and with good
reasons, say, wait a second, you know, to the extent Mr. Hyrns
says the walkway’s been moved this way we wanna use what we have
been using. You can’t force us into that area. We wanna use
what we’ve been using. And that’s exactly what the Wormuths are
saying.
Mr. Lieberg, the surveyor, will tell you that
absolutely right, there are parts of the walkway as it exists on
the ground today that are narrow - they get down to the range of
4 feet, according to Mr. Lieberg. We platted the walkway at 10
feet. We platted the walkway so that their right to use the
walkway is 10 feet as opposed to the 4 feet that presently
exist. It is somewhat disingenuous to suggest that the presence
of bushes on that platted area that we’re suggesting be used as
the walkway, the presence of those bush in, someway, impedes the
ability to use that walkway, that’s a basis of objection. And
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the reason it’s disingenuous is when Mr. Wormuth takes the stand
and he identifies his property and he identifies pictures of his
property, in order for that ‘68 Judgment to be effective, in
order to use the area that’s in the ‘68 Judgment, you would have
to cut through the pho--the bushes that are in photographs in
Exhibit T. You would have to cut through these bushes in order
to be used--to use the walkway that would--the ‘68 Judgment that
runs through here. You would have to cut through on the street
side-- Exhibit N, you would have to cut through this bush here
in order to be able to use the ‘68 Judgment. This is the
walkway as it’s presently used.
You would have to - not anymore because someone
actually cut them down, but, you would have to cut through
bushes that exist along the side of the--the walkway. And
this--in Exhibit R, the walkway, as it’s presently used is you
can’t see it because it’s on the other side of these bushes.
The ‘68 Judgment would run along these and through here.
Now, I say that the--you know, that says “current
photo.” Somebody-- Somebody cut these bushes down and somebody
ripped down the fence, which is why we’re here. And the point
of this is not to say who cut down the bushes or anything and
that. The point is to say, if we’re gonna talk about use of
that easement and the presence of bushes in the easement, to use
the ‘68 Judgment, you’ll have to do--you’d have to cut down
plenty of bushes, you would have to move plenty of sand, which
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probably is not even permissible up--by the DDQ ‘cause they are
protected sand dunes, as opposed to using the walkway that has
been used successfully.
That-- That’s the only correction to the opening
remarks I’d like to make.
THE COURT: Okay. Then you may proceed.
MR. KNOX: At this point, your Honor, we would move
for admission of Exhibit A--and some of these exhibits, I’ll
point ‘em out, are--are blown-up certified copies up here -
Exhibit A, Sunset Shores Number 1, Exhibit B, Sunset Shores
Number 2, Exhibit C, Sunset Shores Number 3, Exhibit D, Sunset
Shores Number 4, Exhibit E, Sunset Shores Number 5, Exhibit F,
Sunset Shores Number 6, Exhibit G, Sunset Shores Number 7,
Exhibit H, which is the easement, liber 169, page 22, Exhibit I,
corrected deed of easement, that’s the 1967 easement that Mr.
Hyrns’ referenced, that’s Exhibit I, the--Exhibit J, which is
the 1968 Judgment, and Exhibit U, which is the City of New
Buffalo Resolution regarding settlement of Wormuth/Sunset Shores
lawsuits.
THE COURT: Okay, you’re offering those in evidence?
MR. KNOX: We’re offering those into evidence at this
point.
THE COURT: Does anybody object to Exhibits A through
J and U?
MR. HYRNS: No objections, your Honor.
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THE COURT: Okay. Okay, with no objection, I will
admit Exhibits A through J and U.
(At 9:44 a.m., PX A through J, U admitted)
MR. KNOX: Your Honor, our first witness will be
Michael Knight.
THE COURT OFFICER: Stand and raise your right hand,
please.
MR. KNIGHT: Yes.
THE COURT OFFICER: Do you solemnly swear or affirm
the testimony you’re about to give in the matter now pending
before the Court shall be the truth, the whole truth and nothing
but the truth, so help you God?
MR. KNIGHT: I do.
THE COURT OFFICER: Thank you. You may be seated.
MR. HYRNS: Your Honor, Attorney Knox has allowed me
to make just a very, very short presentation.
I represent the City of New Buffalo and it’s--
MR. SCHUITMAKER: Harold--
MR. HYRNS: --Schuitmaker’s--
MR. SCHUITMAKER: --Schuitmaker--
THE COURT: Okay, just a second. You have to step up
to the--
MR. SCHUITMAKER: I’m sorry.
THE COURT: --microphone.
MR. SCHUITMAKER: Harold Schuitmaker on behalf of the
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City of New Buffalo. I’m sorry, I--I didn’t bring the
resolution from the city that approved the consent judgment. I
was scheduled-- I’m on one of the grievance panels for a
grievance hearing in Kalamazoo today and, fortunately, that got
settled, but I--I didn’t have enough time to pull the whole file
to come in here. But, Attorney Knox’ representation that the
City approved this is correct. The City did approve it, and
what the City has an obligation to approve or disapprove under
the Land Division Act. But we held out for and what’s in this
consent judgment - I believe everybody agrees to that - is that
we have a right to use that private walk emergency purposes
without assuming any responsibility or liability for that
private walk. It’s not-- The--
THE COURT: The private--
MR. SCHUITMAKER: --idea there--
THE COURT: The private walk, did you say?
MR. SCHUITMAKER: Yes. The-- The 10-foot, whatever
you end up calling it. We-- We did not want to have that as a
public dedication because it’s for use of the people in--in the
subdivision but yet we wanted to be able to have it for
emergency purposes and that’s why it’s not a public dedication.
If it’s alright with the Court, I’d like to save my city some
money and not sit here.
THE COURT: Does anybody object to--
MR. KNOX: No, sir.
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THE COURT: --Mr. Schuitmaker--
MR. HYRNS: No objection.
MR. WATSON: Can we--
THE COURT: --(unintelligible)--
UNIDENTIFIED PERSON: --ask him any questions?
THE COURT: Do you wanna step back and... You are
who?
MR. WATSON: I’m Ron Watson. I’m gonna be a--a
witness for Randy Hyrns.
THE COURT: Okay. And so, Mr. Hyrns is your attorney?
MR. WATSON: Yes.
THE COURT: Okay. I’ll ask Mr. Hyrns to talk to Mr.
Schuitmaker about that.
MR. WATSON: Can I just say it to him--
THE COURT: Well--
MR. WATSON: --do I just have to...
THE COURT: --I’ll let the two of you-- This is your--
your attorney.
MR. HYRNS: Your Honor, Attorney Randy Hyrns. You’re
allowing me to ask Mr. Schuitmaker a question on behalf of my
clients?
THE COURT: Sure.
MR. HYRNS: And the question is, Mr. Schuitmaker,
prior to the City’s approval of--of the document that you have
in front of you, did you engage any engineers or engineering
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studies to look at the walkway and issues regarding water
runoff, etcetera?
MR. SCHUITMAKER: Specifically as to water runoff, we
did not--
THE COURT: Mister--
MR. SCHUITMAKER: --engage any--
THE COURT: Mr. Schuitmaker, you’re gonna have to get
up to--
MR. SCHUITMAKER: I’m sorry. Specifically as to water
runoff, we did not engage any engineers. I know that the City’s
been with--with their engineer on at least one occasion,
approximately 4 or 5 years ago, went up and down this--the
existing walkway, and I’ve been up and down on it a number of
times with city people. We didn’t identify anything that--that
we felt that the City should be involved with other than just
having access so that-- It’s the only way to get down to the
Sunset Shores beach in case there’s an accident in the water.
And the police--police were quite concerned. They have a--a
gator that they can run up and down and put a stretcher on and
so forth, and--and they felt that that--what’s there would work.
MR. HYRNS: Mr. Schuitmaker, you just indicated, and
it is correct then, that the City--fire departments have used
that access over the years?
MR. SCHUITMAKER: Right. I-- I believe at least 3 or
4 times that I’m aware of.
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MR. HYRNS: And are you aware of the fact that the
City has engaged the services of contractors that have to move
large equipment down to the beach in order for reconstruction
for storm damage, etcetera?
MR. SCHUITMAKER: At the-- I’m not aware that that’s
the City that--the City that--that has engaged contractors for
storm damage. The only thing that I’m aware of is the water
intake, but they did not use that walkway for--for that. And
that was 8 or 9 years ago the water intake had some storm
damage. The-- Where the creek comes in, there’s been some
problems there with flooding because that creek handles all the
water north of the--on the western part of the city and the
township, and comes underneath the railroad tracks, and goes by
the water treatment facility, and--and there’s been problems
with some flooding there. But I don’t believe that--that the
City’s ever used that easement for anything other than just
people that gotten hurt swimming or anything like that.
MR. HYRNS: Mr. Schuitmaker, I’m gonna read from a
letter that was purportedly written by you on December 26, 2006
and see if this refreshes your recollection.
MR. KNOX: Your Honor, I’m going to object. I think
he’s reading from counsel’s letter and I think the intent here
was that Mr. Schuitmaker was providing comments and indicate,
generally, acquiescence of the City in the--in the subdivision
plat amendment.
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THE COURT: Okay. Well, let’s... Mr. Schuitmaker,
if--I thought what you were saying was you--you wanted to be
excused?
MR. SCHUITMAKER: Yes.
THE COURT: Okay. And, Mr. Hyrns, you’re trying to--
MR. HYRNS: Just--
THE COURT: --use Mr. Schuitmaker for what purpose
there?
MR. HYRNS: It’s through-- According to Mr.
Schuitmaker’s letter that it states that they did use this
easement in order to maintain their water intake system as a
result of--of a storm damage, your Honor. Just clarifying that
issue
THE COURT: Okay, are you willing to respond to this?
MR. SCHUITMAKER: I-- I--
MR. HYRNS: And-- And here’s the question, your Honor.
The-- The writer-- That your letter purportedly reads also,
“Approximately 10 years ago, a severe storm caused
major problems with the City’s--City of New Buffalo’s water
intake system, located southwesterly of your property, and the
only access to make repairs was through the easement.”
MR. SCHUITMAKER: I think that’s correct for the
people on foot to make repairs. But, I believe that they
brought something in--a crane or something in on a barge, but
I’m not positive.
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MR. HYRNS: Thank you, Mr. Schuitmaker.
MR. SCHUITMAKER: Okay. Thank you.
THE COURT: Mr. Schuitmaker, you’re asking to be
excused?
MR. SCHUITMAKER: Yes.
THE COURT: Okay. Does anybody object to Mr.
Schuitmaker being excused?
MR. KNOX: No objection, your Honor.
THE COURT: Okay, with that, you may proceed.
MR. KNOX: Yes, sir.
MICHAEL KNIGHT
called by the Plaintiff at 9:44 a.m., sworn by the bailiff,
testified:
DIRECT EXAMINATION
BY MR. KNOX:
Q Mr. Knight, would you please introduce yourself to the Court?
A Good morning. I am Michael Knight. I am an attorney in Indiana
and Illinois, and I’m employed by the firm of Barnes and
Thornburg out of its South Bend office.
Q Mr. Knight, did you assist me in identification of proper
parties to the two lawsuits that we have pending, the Pokuta
matter and the Wormuth matter?
A I did.
Q Pokuta matter and Gajos matter. I’m sorry.
A I’m-- Yes, I did.
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Q And as part of that process did we identify all parties that
were required to be identified under the Land Division Act?
A Yes, we did under the Land Division Act; and, it’s shown in the
caption we’ve named the Commissioner for the Drain Commission,
we named the road commissioner, we’ve named the City of New
Buffalo, we’ve named the State of Michigan through the Michigan
State Treasurer’s office, and we’ve named the interested parties
to the--both suits, the Pokuta suit and the Gajos suits, as
you’ve described them.
Q Have all the individuals that have been named as party to this
action, party defendants, have they been served with process?
A Yes. All individuals have been served with process; LLCs were
served, trusts were served, Mister and Misses were served
separately, everybody from the property records from Sunset
Shores 1 through 7, as well as the Oliver B. England Subdivision
were served in this matter.
Q Those individuals who were served and failed to appear, either
in proper or through counsel, have they been defaulted?
A Yes. Entries of default have been sent to the Clerk’s office
and the Clerk has defaulted them.
MR. KNOX: No further questions, your Honor.
THE COURT: Okay, any questions for Mr. Knight?
MR. HYRNS: No questions, your Honor.
THE COURT: Mr. Knight, you may step down.
THE WITNESS: Thank you, sir.
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(At 9:54 a.m., witness stepped down)
MR. KNOX: Your Honor, at this point we would ask the
Court take judicial notice of the Returns of Service, the
appearances and the defaults as to the respective parties.
THE COURT: Okay, any objection to that?
MR. HYRNS: No, your Honor.
MR. DEFRANCESCO: No, your Honor.
THE COURT: Okay.
MR. KNOX: At this point we will call Mr. Bill
Wormuth.
MR. WORMUTH: Good morning, your Honor.
THE COURT OFFICER: Raise your right hand, please.
Do you solemnly swear or affirm the testimony you’re
about to give in the matter now pending before the Court shall
be--
MR. WORMUTH: Yes.
THE COURT OFFICER: --the truth, the whole truth and
nothing but the truth, so--
MR. WORMUTH: Yes--
THE COURT OFFICER: --help you--
MR. WORMUTH: --I do.
THE COURT: --God? Thanks. You may be seated.
WILLIAM WORMUTH
called by the Plaintiff at 9:54 a.m., sworn by the bailiff,
testified:
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DIRECT EXAMINATION
BY MR. KNOX:
Q Mr. Wormuth, would you introdep--introduce yourself to the
Court?
A My name is William Wormuth.
Q And do you have a residence in the Berrien County area?
A Yes, I do.
Q And where is this residence located?
A It’s located at 1136 Shore Drive.
Q As part of this residence at 1136 Shore Drive, do you own Lot
number 25 of the Sunset Shores Subdivision?
A Yes, I do.
Q When did you buy Lot number 25 of the Sunset Shore subdivision?
A I purchased that lot in November of ’94.
Q And prior to November of ’94 did you have contacts with the
area?
A Yes. On several different occasions. I’ve been in New Buffalo
since 1985.
Q Prior to purchasing the lot in 1994, were you able to see the
area that was used as a walkway on some of the landscaping that
was done around the walkway? And when I say walkway, I’m
referring to the walkway that leads from the street down to the
beach area, alongside Lot number 25.
A Yes, on occasion. In 1987 I purchased a condo in New Buffalo.
After one year on the condo, we decide looking for a home on the
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lake; and I took several trips through that area, besides my jet
ski I used to put on the beach over there, and, on two
occasions, in particular. The only thing I do recall is the
location of a telephone pole, that would be on the west--on the
westerly edge of the easement, and that’s where the easement
was, and I noticed the landscaping on a particular house on the
right because I did have interest in it prior to purchasing.
Q Okay. Is it fair to say that you have general knowledge of the
conditions of that walkway going back to the late 1980s?
A Yes.
Q And are you married?
A Yes, I am.
Q And to whom are you married?
A Gayle, my wife.
Q And Gayle is in the courtroom with us here today, correct?
A Yes.
Q Okay. Now, Lot number 25, is that a lakefront lot?
A Legally, no. I do not own lakefront property?
Q Is it a lake view lot, where you have an obstructed view of the
lake?
A It’s a lake view lot, yes.
Q Okay. Okay, let me ask you to take a look at Exhibit number
Exhibit, letter E.
MR. KNOX: And, if--your Honor, if Mr. Wormuth could
step down and point to the exhibit?
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THE COURT: So...
(At 9:57 a.m., witness off stand)
BY MR. KNOX:
Q For the benefit of the Court – and you can step over here so the
judge can see what you’re doing – would you identify Lot number
25?
A Right here.
Q And would you identify Lot number 24?
A (Indicating)
Q And, would you, identify the walkway that’s identified on the
plat that’s used to access the beach from Shore Drive?
A It’s right here.
Q Now, what bounds Lot number 25 on the east side?
A Lot 25 on the east side?
Q Lot-- Lot 25 on the east side. Here’s the north/south
indicator.
A On the east side would be Lot 26.
Q Okay, on the north side?
A The creek.
Q And on the west side?
A Lot 24.
Q Okay. Now let me ask you to take a look at Exhibit L. And
Exhibit L is a drawing that Mr. Lieberg will indicate was
prepared by his office that identifies the relationship among
the different walkways that we’ve discussed, Lot 25 and Lot 24.
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Do you recognize that?
A Yes, I do.
Q Would you identify on Exhibit L your lot, Lot 25?
A Right up here.
Q And would you identify Lot number 24?
A Here.
Q There’s an indication on Exhibit L, “walk per plat”; would you
identify that for the benefit of the Court? What is meant by
“walk per plat”?
A That’s the walkway that’s currently being used - or the little
bit... It’s actually west of the walk that is used now.
Q Okay. And “walk per plat”, would that be the--the walk as it’s
identified in the subdivision plat recorded in 1961?
A Yes, it is.
Q Okay. And would you identify the area that was created by the
1968 Judgment or the 1967 Corrected Deed of Easement, whichever?
A Alright, the ‘68--
Q You need--
A --Judgment--
Q --to step over here so the judge can see what--
A --’68 Judgment--
THE COURT: Okay--
THE WITNESS: --moved--
THE COURT: --just--
THE WITNESS: --from
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THE COURT: --just a second.
BY MR. KNOX:
Q There you go.
A All right. The ’68 Judgment moved it from its current location
into here.
Q And, if you look down at the bottom, is there a dimension
indicated for the distance between “walk per plat” and the 1968
Judgment?
A Four feet, if I’m reading this correctly.
Q Well, why don’t you read what it says there that you’re pointing
to so the record’s clear.
A Okay. “Walking path.”
Q Does it say, “Plus or minus 4 feet wide walking path?”
A Yes, it does.
Q Okay. And at the bottom does it indicate 7.13 feet?
A Yes, it does.
Q And is the 7.13 feet, as far as you know, an indicator or the
distance between the “walk per plat” and the 1968 Judgment?
A Yes, it is.
Q Would you agree, then, that the--by purportedly relocating that
walkway over onto Lot 25, that, essentially, it shifted it over
7.13 feet so--
A Yes.
Q --so wouldn’t that amount separate the two?
A Yes.
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Q Okay. Okay, go ahead and grab your seat.
(At 10:01 a.m., witness resumed stand)
MR. KNOX: Your Honor, can I present the witness with
our book of exhibits?
THE COURT: Yeah. But let me ask you... I’m not
completely clear on this. Where it says “walk per plat” is that
what is currently being used?
MR. KNOX: No, sir. “Walk per plat” is what it shows
on the walkway--what it shows on the plat itself. If you look
at the plat, that’s what it shows. The hashed area is, it says,
“New easement per document, recorded in Liber 836, page 837”.
That’s a reference to the 1968 Judgment. The walkway, as it’s
presently used – and this has it surveyed on here – will show a
survey of the walkway that present--will show a survey of more
than the walkway that’s being presently used, but the walkway
that’s presently used is, plus or minus 4 feet wide walking
path, and it shows a--a hashed area that follows, generally,
between “walk per plat” and the ’68 Judgment.
THE COURT: Okay.
MR. KNOX: If you look at--if--this part of the
drawing it says, plus or minus 4-foot wide walking path and it’s
a reference to the grained area that you see there, that’s the
area that the walk is presently being used. And when we get Mr.
Liber to testify, he’ll testify that, although that’s 4 feet
wide that presently being used, they drew--he drew the walk so
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that it’s--that it’s a full 10 feet and it incorporates the area
of the lot that’s presently being used.
THE COURT: So it’s neither the “walk per plat” nor
the ’68 Judgment, am I correct, it’s between those two?
MR. KNOX: That’s right.
THE COURT: And it’s about 4-feet wide, did you say?
MR. KNOX: Presently, it’s about 4-feet wide - at
places. And we’ll see some photographs here in a second that
will--that will exemplify that.
BY MR. KNOX:
Q Now, Mr. Wormuth, as a point of reference as we go through some
of these photographs, am I pointing here to a wood shed that
appears on Lot 25? Just so when we pho-- There were
photographs, we could use this--
A Yes.
Q --as point of orientation. And the walkway that was purportedly
created by the ’68 Judgment abuts up against that wood shed,
correct?
A That is correct.
Q Okay. Okay, I’m gonna hand you a book of exhibits here. Okay,
we’ll start with Exhibit N. Okay, N as in November. Okay,
would you tell the Court what’s depicted in Exhibit N, the
photograph Exhibit N?
A Well, it shows the walkway as I purchased the property, in
addition to that, it shows 4- to 5-foot junipers across the
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front of the property. Those junipers, found out, were anywhere
from 35 to 40 years old. They were planted by the original
homeowner.
Q Okay. Would you lift that up so the Court can see exactly--
THE COURT: That’s--
BY MR. KNOX:
Q --what you’re--
THE COURT: That’s--
BY MR. KNOX:
Q --talking about?
THE COURT: I was looking at the wrong exhibit--
MR. KNOX: Oops. I’m sorry.
THE COURT: --of the--
MR. KNOX: Exhibit N.
BY MR. KNOX:
Q Now, you indicated that there were junipers that were present
when you bought the property, across the front of the property?
A Yes, there was, sir.
Q Would you point to those on Exhibit N so the Court can see
exactly what you’re discussing?
A (Indicating)
Q And those junipers are, as you look at the--the view, the
junipers are to the left of the--
A They’re to--
Q --the little--
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A --the left--
Q --shed?
A --of the--the shed. And that would’ve obstructed any prior use
of the 1968 movement of the easement.
Q Okay. So let me--
A Well, I--
Q --write that--
A --found out that Juan Chavez is the one who planted those trees
back in the early 70s.
Q Okay. Let me-- Let me go through a little more in detail. Now,
the junipers you point to that are in that photograph, for
purposes of Exhibit L, they would be to the left of the wood
shed that’s shown in Exhibit L, correct?
A Yes.
Q And those junipers, I think you said, would have obstructed
access to the walking path that would’ve been created by the ’68
Judgment?
A Totally.
Q When were those junipers planted?
A They were planted in the early 70s, and they were planted by a
gentleman named Juan Chavez, who, at that time, was a teenager
and he worked for Bernanke Landscaping, and they maintained the
property, and they also did a lot of railroad ties installations
on the property.
Q Now, the--the junipers that are depicted in Exhibit N that would
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block access to the ’68 Judgment, as they’re shown in that
photograph, were they present when you purchased the property?
A Yes, they were.
Q And have they been present throughout the owner--the time that
you owned the property?
A Two years ago they were killed and I--they had to be removed.
Q Okay. Up to point-- Up to the point of filing this suit, were
those--were those present--
A Yes, they--
Q --the junipers--
A --were.
Q --present? To the left of the junipers, as you look into the
photograph, what do you see?
A To the-- To the left of the junipers?
Q As you’re looking at the photographs.
A Oh, that’s--that’s the easement as it existed.
Q And that shows the walkway that’s presently being used?
A Yes, it is. Except the--you know, it hasn’t been maintained in
4 years and--no, I mean, I wouldn’t say 4 years, 2 years, and
the vegetation on the west side of the easement is much more
overgrown right now.
Q Okay. When you say, vegetation on the west side, in terms of
what you see in the photograph, that would be, to the left of
the walking path, correct?
A That’s correct.
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Q The walking path that you see in Exhibit N, was that the walking
path present when you bought the property in 1994?
A Yes, it was.
Q Is that the walking path that is presently being used?
A Yes.
Q How is that walking path defined on the ground?
A Defined? Meaning?
Q Sure. Let me-- Let me explain. Is there any-- Was there
anything placed on the ground that would define the area--the
intended area of the walking path?
A On the right side-- On my side there’s railroad ties on the
right side of the--the easement.
Q And the railroad ties were placed when, if you know?
A In the early 1970s, also.
Q Have those railroad ties been in place from the early 1970s as--
to--to the present date?
A As I’ve been told, yes.
Q Are the railroad try-- Are the railroad ties there, presently,
on the ground--
A Yes.
Q --today?
A Yes, they are.
Q Okay, if you would take a look at Exhibit O--
THE COURT: Let me just stop you--
MR. KNOX: Yes--
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THE COURT: --for a--
MR. KNOX: --sir.
THE COURT: --second. On Exhibit N, whose house is
that?
MR. KNOX: The-- The house on the left is--now belongs
to George Salerno.
THE COURT: Okay.
MR. KNOX: And that is Lot number 24. The shed that
you see in the photograph is Lot number 25.
THE COURT: Okay.
BY MR. KNOX:
Q Exhibit O, Mr. Wormuth, would you tell the Court what appears in
Exhibit O?
A Exhibit O is a--a picture of a party that I had. You know, I--I
bought the house in November of 19 1994, and this is a picture
taken in July for my son’s 21st birthday party.
Q And do the photographs in Exhibit O show the condition of the--
A That was the condition of the easement 5 months after purchase.
Q Okay. And the upper left-hand corner is from the lake side,
looking toward the street, correct?
A Yes.
Q The bottom left-hand side is lake, looking to street--
A Yes.
Q --correct?
A Yes.
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Q Bottom right side is lake, looking to street?
A Yes.
Q And upper-right is from street, looking toward lake?
A Yes.
Q And at the end of the walkway you see--behind where your son is
you see a metal retaining wall?
A Yes.
Q Where is that retaining wall located?
A That is the easterly border of the creek.
Q Okay. So, if we were to orient that metal retaining wall that
shows on the--in the upper right-hand corner, that would be
located in this area on Exhibit L?
A Yes, that’s correct.
Q Okay. So you see the metal retaining wall but that’s way off of
the area that was used as the beach, correct?
A Yes.
Q To the north.
A Yes.
Q Okay.
THE COURT: Say that again.
MR. KNOX: The metal retaining wall that is shown in
the upper right-hand picture is a rusty-looking corrugated steel
type of re--retaining wall--
THE COURT: Is that this one?
MR. KNOX: Yes, sir. Yeah, right behind the
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individual. That is located in this area here. So-- And the
point is that there’s a clear walkway into the beach easement,
and the fact that you can see that metal retaining wall tells
you that it’s a straight shot, clear walkway into the beach
area.
THE COURT: So the retaining wall is at the beach?
MR. KNOX: It’s on the other side of the beach. The
retaining-- This is the beach area. The retaining wall is right
here.
THE COURT: So the retaining wall is north of the
beach?
MR. KNOX: Yes. Yes, sir.
THE COURT: Okay.
BY MR. KNOX:
Q Okay, Exhibit P, would you explain to the Court what Exhibit P
is?
MR. HYRNS: Mr. Knox, that retaining--
MR. KNOX: Yes.
MR. HYRNS: --wall is also depicted on your proposed
Exhibit T, as in Tom.
MR. KNOX: Okay. Let’s take-- We can-- For
orientation purposes, let’s get where that is.
MR. HYRNS: It’s a picture.
MR. KNOX: Oh, picture. Okay.
BY MR. KNOX:
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Q Okay, Phil, if you would, take a look at Exhibit T. Well--
A Yes.
Q --we’ll get there. Let’s-- Let’s go in order. We’ll get to
Exhibit T in a--in a second, and I’ll make sure I reference back
to what Mr. Hyrns said. Exhibit P shows what?
A Shows the existing walkway; and this is after I put my fence in
and chose the existing juniper that was there. The other
plantings, you know, I put in there, inside the fence. But the
fence is no longer there. All those trees have been cut down.
Q Okay. This photograph was taken in 2003?
A Yes, it was.
Q Now, your fence as shown in the photograph in Exhibit P, when
was that fence put in?
A It was put in the year after--or, the--the same year I purchased
it. No-- No, ’95. It was done in the spring.
Q In the spring of ’95. Did you--
A Yes.
Q --obtain a permit to do that?
A We-- We-- The installer secured a permit and he also, you know,
of the survey and got the survey from the City of New Buffalo,
got the permit from the City of New Buffalo, installed the fence
and then it was re-inspected by the City of New Buffalo.
Q Did a representative of the City of New Buffalo actually come to
the premises and inspect the location of the fence?
A Yes, they did. Ed Carpenter was the inspector at the time, and
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he still--
Q And--
A --is there.
Q And did they approve the location of the fence?
A Yes, they did.
Q Now, you referenced a survey, would that be a survey that was
done when you purchased the property in ’94?
A Yes.
Q Did that survey that was done when you purchased the property in
1994 show the 1968 Judgment that was lo--that’s--
A No.
Q --located on Exhibit L?
A No, it did not.
Q Did it show the “walk per plat”?
A Yes.
Q When you installed your fence, was your-- Earlier you mentioned
that there were railroad ties that defined the side of the walk
on your side.
A Yes.
Q Where did you install your fence in relationship to railroad
ties?
A We-- We installed the fence on the inside edge of the railroad
ties.
Q And by, inside edge, you mean so that the rail--so that the
fence would’ve been on your side of that--
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A Correct.
Q --walkway? Yes. Okay, Exhibit P also shows some very tall
junipers that are on your side of the fence, on the inside--
A Um-hum.
Q --when were those planted?
A At the rear or the side?
Q At the side. The-- The ones that are shown in Exhibit
A Look’s like--
Q --P.
A You know, those were--
THE COURT: Why don’t you--
THE WITNESS: --pine--
THE COURT: --let me see what--exactly what you’re
looking at.
THE WITNESS: The tall ones on the side of the
property, Tracy?
BY MR. KNOX:
Q Yes. Yes. Point-- And point those to the judge.
A Okay.
THE COURT: Okay.
THE WITNESS: These here.
THE COURT: Okay.
THE WITNESS: Those are not the trees that I had. You
know, I had--(unintelligible). These were pine trees, and they
were existing.
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BY MR. KNOX:
Q So, when you moved in, the trees that are shown, those
evergreens that are shown over the top of the fence in Exhibit
P, those evergreens were in place?
A Yes.
Q Okay. So, as of 1994, those--
A I-- I-- I wouldn’t have the idea when those was installed,
whether it was the second or the third on, or--you know. I-- I
replaced them with junipers.
Q Okay. But, in terms of you--when you moved in, those were
there?
A Yes. With some other plantings, yes.
Q Okay. And those evergreens would run along the inside of the
fence as you see it in--
A That’s--
Q --Exhibit--
A --Correct.
Q --P? Would the ’68 Judgment be accessible through those
evergreens--
A No, it--
Q --the area--
A -would--
Q --was the ’68 Judgment?
A Not at all.
Q Okay. Okay, summer-- Take a look at photograph Q--
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THE COURT: You say the ’68 Judgment would’ve gone
through those evergreens--
THE WITNESS: Yes.
THE COURT: --is that what you’re saying?
MR. KNOX: The-- The evergreens were located right
through here and the ’68 Judgment was on the other side of the
evergreens. So, as you look at photograph P, the ’68 Judgment
would be to the right of the fence, inside those evergreens.
BY MR. KNOX:
Q Okay, Exhibit Q--Exhibit Q shows what?
A It’s a summer of 2005. This was after the fence was installed.
And it just shows the path, and it shows normal usage and wear
on it.
Q Okay.
A And it also shows trees in the back of the property.
Q Okay. So if you look--if you follow the fence line all the way
down to where it looks like it ends, and go to the right, you
can see trees there. Hold that--
A Yes.
Q --up and point to the judge where you talk about trees in the
back of the property.
A Right here, your Honor. This tree, in particular. This--
(unintelligible).
Q Okay.
A Just above the top of the fence there.
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Q Okay, now take a look at the photographs in Exhibit R. And the
photographs in Exhibit R show the inside of your yard, correct?
A Yes.
Q So that the walkway, as it was used, would have been on the
other side of the junipers that we see in the bottom photograph
of Exhibit R?
A Yes.
Q Okay, now, it says “current photos” but--
THE COURT: When you say, the other side, you’re
talking about--?
THE WITNESS: That would be the left side, your Honor.
The--
THE COURT: Okay.
THE WITNESS: The easement would be behind these
trees.
BY MR. KNOX:
Q Okay, the walkway as it currently exists is not visible in
Exhibit R, correct?
A That’s correct.
Q Now, in relationship to Exhibit L, which is the drawing which
shows the ’68 Judgment, comparing that to the pho--bottom
photograph in Exhibit R, where would the ’68 Judgment walk--
where--where would that walkway be as it appears on Exhibit R,
the photograph?
A It would’ve been 10-foot inside this--would’ve been, from the
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white fence here, 10 foot inside of the--
Q Okay. So it would’ve been through the--
A Through the yard--
Q --through the--
A --but the--
Q --the evergreens and to the right--
A That’s--
Q --as it’s shown--
A --correct.
Q --in the photograph?
A Yes.
Q And that’s the ’68 Judgment, correct?
A Yes. Now-- Now the--the junipers that are on the left-hand side
of the easement, those were planted by me.
Q Okay. When--
A The--
Q --you say the junipers that are in the left-hand side of the--
A --left side--
Q --photograph--
A --of the photo here, yes.
Q --those were planted by you?
A The three-- There’s a juniper and then two pine trees at the
rear of the property.
Q Okay, point to those for the judge.
A (Indicating) This-- These three trees here. These three trees
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were planted by my neighbor, Frank Hellacek’s sons, and they
were planted in the early 1970s.
MR. HYRNS: Objection, based on hearsay, your Honor.
THE COURT: Okay.
MR. KNOX: Your Honor, the--the witness is entitled to
testify concerning the conditions of his properties and any
investigation that he would have conducted relevant to that, he
can offer his opinion based upon that.
THE COURT: Mr. Hyrns?
MR. HYRNS: Your Honor, I don’t believe its opinion
evidence. It sounds as if it’s a statement that he’s acquired
from some individual that’s not currently in the courtroom. He
certainly can give his opinions as to--if he’s qualified to--as
to the age and height of trees, etcetera.
MR. KNOX: It’s a-- It’s a lay opinion. A-- A lay
witness--
THE COURT: Well...
MR. KNOX: --under the--
THE COURT: Okay, I--I will sustain the objection as
to what he was told--
MR. KNOX: Okay.
THE COURT: --as--as evidence in this case.
BY MR. KNOX:
Q The-- The photograph, Exhibit R, shows the three pine trees that
you mentioned.
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A Yes.
Q Were they present when you moved in?
A Yes, they were.
Q Did they appear to be newly planted?
A No.
Q Are-- Were they, essentially, the same height as when you moved
in as they are in photograph R?
A Yes.
Q When you moved in, in 1994 was there a worn pathway anywhere in
Exhibit R that would show anyone had ever used the area of the
1968 Judgment?
A No.
Q Okay, take a look at Exhibit S. And, for orientation purposes,
Exhibit S is a close-up view of the back corner that’s shown in
Exhibit R, correct?
A Yes.
Q If you look at Exhibit R, you see where your arborvitae end and
you see the back corner of the fence? Exhibit S is a close-up
view.
A Yes.
Q The top photograph shows was--taken in December of 1994,
correct?
A Yes.
Q And it shows two evergreens, then it shows the railroad ties,
correct?
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A Yes.
Q And then beyond the evergreens there is some more vegetation,
some--some shrubs?
A Yes.
Q When you moved in December of 1994 would those two evergreens
and the shrubs have prevented anyone from walking down the 1968
Judgment--
A Yes--
Q --area?
A --they would.
Q In fact, if you take a look at Exhibit--the bottom photograph in
Exhibit S, that is a – when I say present, relatively present,
before your fence came down – photograph, correct?
A Yes.
Q And you can see in that photograph the--the same two evergreens
and a shrub behind, correct?
A Yes.
Q Okay, take a look at Exhibit T, and Exhibit T is that same area
that we’ve just discussed from a different angle, correct?
A That’s correct.
Q And the top photograph in Exhibit T, you can see the two
evergreens, correct?
A Yes.
Q And to the right of those evergreens you can see the shrubs that
would--that are grown behind the evergreens, closer to the lake?
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A Yes.
Q And, again, those evergreens and the shrubs that are shown in
Exhibit T, those were present when you bought in 1994?
A Yes, they were.
Q Okay, drop down to the bottom photograph in Exhibit T, and that
is a close-up of that--that area, is it not?
A Yes, it is.
Q If someone were to wanna use the area of the 1968 Judgment as a
walk, what would they have to do?
A It’s impossible with the thickness of those trees. You just
can’t get through there. I mean, they’re--they’re rather large,
you know, they were existing, and there’s no way to really get
through to use the ’68 Judgment to get to the beach area.
Q Now, the walkway that is presently in place and being used, that
walkway is on the other side of the fence as it shows in Exi--
the top photograph in Exhibit T, correct?
A That is correct.
Q So there is a walkway to the beach?
A There always has been.
Q It just doesn’t go through your bushes?
A Yes. That’s correct. And it’s never been through the property.
Q Mr. Hyrns-- As we were discussing prior photographs, there was
the--the retaining wall that we discussed; is that shown in
Exhibit--any of the photographs in Exhibit T?
A The retaining wall being the--?
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Q The retaining wall down by the creek.
A Yes, it does.
Q Would you take a look at Exhibit T; where is the retaining wall
in Exhibit T?
A It’s on the easter side--easterly side of the creek.
Q Okay. Okay, now, if you take a look again at Exhibit T, what is
on the lake side of the evergreens and the shrubs that we see in
Exhibit T?
A You’re gonna have to point that out to me. What--
Q What is-- What is down in this area on the other side of these
shrubs, down toward the lake?
A Normally they put a--installed a staircase there. Now, whether
it was-- I can’t see it with these fixtures. But at times, they
remove it during the winter because of storms and waves. But,
normally, they always had a staircase in that position.
Q And that staircase is used by residents to access the beach,
correct?
A Yes, it is.
Q And that staircase runs just on the other side of those--
A Yes.
Q Let me finish for purpose of clarity.
A Staircase is normally--they--they normally put it in the center
of the walkway.
Q And it runs on the other side of the--the shrubs?
A Yes. Yes.
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Q And are those shrubs located on sand dunes?
A Yes, they are.
Q Have you-- Do you have an opinion as to whether or not it’s
possible to remove the shrubs lawfully and build a path through
the sand dunes?
A I had the occasion-- Several years ago I had questions
concerning the creek. And I had a representative from the DEQ
out there and he mentioned a lot of--he told me a lot of things
that was going on, you know, with the creek and the legality of
this and that and other issues. And he mentioned that the dune
behind my house is a protected dune. And he says, legally, you
can’t touch the dune weed on there, nor any vegetation,
whatsoever.
Q So, in order to effectively use the ’68 judgment as a walkway,
you would have to cut through those dunes, correct?
A You’d have to cut through the dunes and also, like I say, it
would cause probably prohibitive erosion problems to my
property.
Q Okay. From the-- When you bought the property, Lot number 25,
in 1994, was there any apparent walkway, meaning, paths worn,
paths other than the area that we’ve identified in the
photographs as being the walkway that was used to access the
beach?
A None at all.
Q And, in particular, was there any apparent use of a walkway on
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Lot 25 inside the area that eventually became inside the area of
your fence?
A No. There’s no wear inside the railroad ties.
Q Okay, this is Exhibit V. Okay, let me hand you what’s been
marked as Exhibit V, as in Victor. Mr. Hyrns had asked
questions of the City Attorney Mr. Schuitmaker about access to--
to the beach area with heavy equipment using the existing
walkway. Do you recall those questions as you were sitting at
the table with me?
A Yes, I do.
Q Would you explain to the Court what is shown on Exhibit V?
A It shows a backhoe on the easement in the year of 1996. There
was a storm in 1996 that damaged--a horrific storm, some of the
homes got damaged that are on the lake front and, you know, it
was just totally destructive. And, for the entire summer of
1996 - this is a piece of Oselka Construction’s equipment, and
during that period, while he was doing all the repairs up and
down the lake front, I let them use my bluff area to store his
equipment rather than take it home every night. And this is a
picture of that, and it identifies it, it’s on the walkway
because it’s outside the fence line.
Q Okay. And that photograph in Exhibit V, shows heavy equipment;
was that heavy equipment able to get up and down the walkway
that’s presently in place?
A Yes. The same walkway.
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MR. KNOX: At this point, your Honor, we move for the
admission of the photographic evidence that we have identified,
Exhibit N, O, P, Q, R, S, T, and V, as in Victor.
THE WITNESS: Your Honor, did you see this?
THE COURT: Not yet. Just a second.
Any objection to those exhibits?
MR. HYRNS: Your Honor, we have no objection to the
pictures but I do object to, however, some of the writings
contained alongside some of those pictures. I think we’ve
already discovered that in certain places it says “current
picture” when what--it isn’t current as of today’s date, but
it’s current as of the post-dates, sometime maybe back in 2005,
2006 or 2007. So, no objection to the picture, do object to the
writings on the pictures, your Honor.
THE COURT: Okay, the photographs themselves will be
received.
(At 10:31 a.m., PX N, O, P, Q, R, S, T, V admitted)
THE COURT: And, Mr. Knox, how do you suggest we deal
with Mr. Hyrns objection?
MR. KNOX: Well, I think that would be proper for
cross-examination. The witness has identified the pictures and
he’s identified the writings. Now, to the extent the writings
says “current”, and it’s only current because someone came onto
the property and cut down the trees, that reference to that
picture being current as to the location of the--the walkway as
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opposed to the existence of the trees. That’s an issue that can
be addressed through cross-examination or explanation. It
doesn’t make the exhibit inadmissible.
THE COURT: Mr. Hyrns, which--can you give me a
specific photograph--
MR. HYRNS: Yes--
THE COURT: --that you’re--
MR. HYRNS: --your Honor. Exhibit Number S, as in
Sam. In the left-hand portion it says “present” and it’s got an
arrow pointing down, and I do not that--believe that that is an
accurate representation of the way the property looks as of
today’s date, present time. And, in fact, your Honor, I believe
that was probably, approximately 2005-2006.
THE COURT: Mr. Knox?
MR. KNOX: Again, your Honor, that’s--I mean the--it’s
all an issue of--of cross-examination. If the Court would like,
we can have him scro--cross out the word, present, and he can
write, prior to someone tearing down my fence and prior to
someone ripping out the yellowish bushes.
THE COURT: Is it-- Is that the only one you’re
objecting to or are there others--
MR. HYRNS: No, your Honor. I’m-- I’m objecting to
all of the writing on all of the documents. And, again, your
Honor, I have no objection for the pictures being admitted but
my objection, solely, is limited to the writing and I am
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confident to this Court that it will not consider the writing as
evidence, only the pictures as--as evidence.
THE COURT: Well, I made my own notes, which is based
on his testimony and I didn’t compare my notes what is written.
MR. HYRNS: I just wanna make sure my objection is
just to the writing, your Honor.
THE COURT: Well, I--I understand what you’re saying,
but I’m just trying to figure out how to deal with this.
Well, I--I’m going to just withhold my ruling on this
and ask the two of you to sit down and really figure out exactly
what it is that the objections are. For example, Mr. Hyrns, on
Exhibit O, which is--which was taken back in, I think Mr.
Wormuth’s son’s 21st birthday it’s got a date. And, some of
those may be pretty clear and I’d just like to get clear exactly
which ones you’re objecting to, because he did identify some of
those consistently with the dates that are on here.
MR. HYRNS: I-- I believe he did, your Honor, and for
that purpose then, oh, I’d have no objection because he
testified as to the date. I do object to the writings on Q,
‘cause I don’t believe those were testified to. I object to the
writings on R, as in Randy. I object to the writing on S.
There’s writing contained on picture Number T, in the upper
photograph, your Honor. So are the specific objections to the
writings.
THE COURT: On T, where it says “bushes dug out”, is--
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MR. HYRNS: Yes.
THE COURT: --that what you’re... Okay.
Well, I--frankly, I--I’ll have to go back and look at
my notes and see exactly what Mr. Wormuth did testify to. At
this point I will sustain the objections on those--on these
particular writings.
MR. KNOX: Okay.
THE COURT: And if--if Mister--
MR. KNOX: With-- With that in mind, your Honor, I’ll
have a few follow-up questions.
THE COURT: Okay, Mr. Knox, if you want to go back and
show that there--these were identified, you can do that as well.
MR. KNOX: Okay.
BY MR. KNOX:
Q Exhibit Q, would you take a look at Exhibit Q?
A Yes.
Q The-- The photograph in Exhibit Q, when was that photograph
taken?
A The summer of 2--‘05.
Q Okay. There’s a notation on the bottom of that photograph that
says “Juniper same location July 1994 photo”. What is-- What is
that a reference to?
A That’s a vegetation on the--on the west side of the easement.
They’re more overgrown at this time.
Q Was-- The vegetation depicted in the summer 2005 photograph, was
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that in the same location as shown in the July 1994 photograph?
A Yes.
Q Okay. And the--there is a large tree that’s depicted in the
upper left-hand corner of Exhibit Q, correct?
A Yes, sir.
Q Is that large tree presently located on Lot 24?
A Yes, it is. That’s the vege-- All that vegetation is on Lot 24.
Q Okay. Take a look at Exhibit R. Exhibit R, top photograph,
when was that taken?
A It was taken in November of 1994. That was just after the
purchase of the property.
Q And then, the bottom photograph that says “current photograph”,
when was that taken?
A Once again, that was taken, you know, a few years ago--a couple
years ago before Mike--those were chain-sawed down and the fence
was removed.
Q Okay. And the Exhibit R--
THE COURT: So... Well, go ahead.
BY MR. KNOX:
Q Exhibit R, in comparing that to the present condition of your
property and the location of the walk, is Exhibit R the same
today as it was when you took this photograph, with the
exception of the trees cut down and the fence removed?
A Yes, except I got a temporary fence. The city made me put a
temporary fence up there because I--it’s a plastic fence that I
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used because of the swimming pool.
Q Okay. Exhibit S--
THE COURT: Now, when you say the trees are cut down,
which--exactly which trees are cut down?
MR. HYRNS: Your Honor, all these arbor gladiolus were
vandalized a couple years ago. We got a call on April 4th by a
neighbor that says these people are removing my fence and two
hours later we got a call from the same neighbor saying that the
same people were chain-sawing my trees down.
THE COURT: Okay.
BY MR. KNOX:
Q Okay, Exhibit R Exhibit S, when was the top photograph in
Exhibit S taken?
A It was taken December of 1994. That’s, once again, at the time
of purchase.
Q Bottom photograph in Exhibit S, was that taken at the same time
as the bottom photograph in Exhibit R?
A Not at all.
Q When was Exhibit S taken--bottom photograph in S?
A That was probably taken in, I’m gonna assume, July of, you know,
after the winter; July of ’94 or, ’95. I’m sorry--
Q Okay. So the--
A --’96.
Q --bottom photograph in Exhibit S was July of ’95--or, the--
A ’96-’97.
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Q --’96?
A Yeah.
Q Okay, well, compare Exhibit R and Exhibit S. Exhibit S, the
bottom photograph, has the notation “present”. What did you
mean by the notation “present”?
A Present meaning before these-- Also, when--the incidents of the
vandalism on the other trees, these trees were also vandalized,
with exception of two of them. Present means, you know, back
you know, 3, 4, 5--4 years ago--
Q Okay. Would--
A --you know.
Q Would Exhibit S have been taken after this lawsuit was filed?
A Yes, I believe so; early at the time of the lawsuit.
Q Okay. And Exhibit T, there’s notation on the top photograph,
“bushes dug out” and it points to the yellow bushes?
A Yes.
Q What is that reference to?
A They were-- They were also cut down, with exception of two that
remained, and they were just vandalized maybe a year ago when we
filed the complaint with that, because there--we had to get a
protective order on the property due to the vandalizing, and
they also cut down six trees on this creek side of my property.
Q Okay. Now, just for clarity purposes, Exhibit T shows the
evergreens and the shrubs that are at the--at the end of your
yard--at the end of the fence; are those still in place?
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A Yes, they are.
Q Okay.
A They’re quite larger than this, though.
Q Okay.
MR. KNOX: And, at this point, your Honor, I’m not
sure that--to the extent the Court rule that the photographs
themselves were admissible – which, I think, with the
understanding the photographs are admissible, the writing was up
in the air - we have no further questions.
THE COURT: Okay. Who wants to have ques-- Who has
questions of Mr. Wormuth? Mr. Hyrns. Is there anyone else
who’s gonna have questions for Mr. Wormuth? Okay, Mr. Hyrns,
you may proceed.
MR. HYRNS: Thank you, your Honor.
THE COURT: Just a second.
CROSS-EXAMINATION
BY MR. HYRNS:
Q Good morning, Mr. Wormuth.
A Good morning, sir.
Q Mr. Wormuth, if I understand your testimony correctly, you did
not have any property interest in Sunset Shores prior to your
acquisition of Lots 25 and 26?
A I said I did have interest in purchasing property.
Q Okay. But you didn’t have--you didn’t own any property--
A I did not-- I owned property probably a mile away.
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Q Okay. And the first property that own--that you owned was the
property that you currently have and those are Lots 25 and 26,
correct?
A The first property I’ve owned in New--
Q In Sunset--
A --Buffalo?
Q --Shores.
A In Sunset Shores, yes.
Q Okay. So, you weren’t a resident of Sunset Shores in 1967, the
time of the making of the--the revised deed of easement, which
has been marked as--I’m sorry, the corrected deed of easement
that has been marked and introduced as Exhibit Number I, you
weren’t--
A No. I was not a resident, no.
Q And you weren’t a resident at the time of the making of the
judgment of the divorce (sic), which has--which has been marked
as Exhibit Number J?
A And J would be?
Q The judgment-- I’m sorry. It’s the judgment of--of Chester J.
Byrns. It’s a judgment amending--
A No, I was--
Q --and alter--
A --not a re--I was not a resident at that time.
Q And again your testimony was is that you became a resident when
you purchased the current Lots 24--I’m sorry, 25 and 26,
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correct?
A That’s correct.
Q Okay. I’ve marked as--for identification purposes Exhibit B-1.
I’m gonna hand you that document, sir. Can you-- Can you tell
the Court what document B-1 is, please?
A It’s a warranty deed from Bert Langer, who we purchased the
property from.
Q And it’s then to yourself and your wife Gail, is that correct?
A Yes, it is.
Q And it’s dated the 12th day of November of 1994, is that correct?
A That’s correct.
Q Now, there--in the upper middle portion of that document there’s
a description of your purchase, it says, Lots 25 and 26, and it
continues on? Do you see that writing, sir?
A Yes.
Q Can you read that out loud for the Court, please?
A It says, “Lots 25 and 26, Sunset Shores Number 5, according to
the plat thereof, recorded November 14, 1961, and Volumes 18 of
plats, page 29, as amended by the Circuit Court judgment
recorded August 22nd, 1968, and, Volume 836, page 837, Berrien
County Record.”
MR. HYRNS: Your Honor, I move for admission of
Defendant’s Exhibit B-1.
MR. KNOX: At this point, your Honor, we’ll object on
the grounds of hearsay. The document’s not been certified,
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because it hasn’t been certified, there’s no--it’s objectionable
based on hearsay and also authenticity.
MR. HYRNS: May I--
THE COURT: It’s not--
MR. HYRNS: --inquire--
THE COURT: --been certified by the Register of Deeds?
MR. HYRNS: It-- The document that I possess has not
been certified by the Register of Deeds, your Honor. If I may,
with this witness, ask additional questions?
THE COURT: Sure.
BY MR. HYRNS:
Q Do-- Mr. Wormuth, do you have any questions as to whether or not
this is the--the deed prepared and transferred to you in 1994?
A I believe it is. I’d have to look in my personal records.
Q And, in fact, this is a deed that purports to have been recorded
with the Register of Deeds office on November 16th of 1994?
A According to the information on here.
Q Thank you.
MR. HYRNS: Your Honor, I would again move for the
admission of Defendant’s--
THE COURT: Okay, any--
MR. HYRNS: --proposed--
THE COURT: --objection--
MR. HYRNS: --Exhibit--
THE COURT: --Mr. Knox?
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MR. KNOX: Same objection, your Honor.
THE COURT: Okay, I--the--Mr. Wormuth has identified
the deed as his deed and I will admit Exhibit B-1.
(At 10:46 a.m., B-1 admitted)
BY MR. HYRNS:
Q Mr. Wormuth, you already read it from it but it indicates that
it--as it says the plat thereof recorded November 14th, 1968 and
Volume 18 of plats, page 29, as amended by the Circuit Court
judgment. Do-- Did you read that?
A Yes, I did.
Q And then it even tells you that that Circuit Court judgment re--
was recorded on August 22nd, 1968, correct?
A Yes, it does. Did I-- Did I read it or did I follow up on it,
no, I didn’t. I found that-- I found out about that 8386
judgment when I had Brian Lieberg out from Whitman and
Associates, probably 6 years ago--
Q Okay.
A --and I asked him when he--
Q It’d be more--
A --did the--
Q --effective, sir, if you allow me to ask you some questions,
okay?
A Well, I’m answering the--you know, if you’re asking me whether I
knew what 836 or page 837 was, and I never researched it,
whatsoever.
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Q Okay.
A I bought a piece of property with an easement and the easement
was there, and I could only assume that that easement was moved
in 1968.
Q And you now know from your Exhibit L that that easement was
moved in a place closer to your property, correct?
A It actually moved inside my property.
Q Thank you. Now, in 1994--
A Can I make--
Q --when you--
A --another statement, please?
THE COURT: Just a second. You have to respond to
questions--
THE WITNESS: I--
THE COURT: --the attorney--
THE WITNESS: --see.
THE COURT: --asks.
THE WITNESS: Okay.
THE COURT: And if your--
THE WITNESS: I’m sorry.
THE COURT: --your attorney has another question that
would--deal with it that way.
MR. HYRNS: Thank you, your Honor.
BY MR. HYRNS:
Q Now, your counsel asked and you indicated that you built a fence
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in 1995?
A Yes.
Q And I’m gonna show you what has been marked as--
MR. HYRNS: Your Honor, is there a stapler in the
courtroom?
THE COURT: Yes.
BY MR. HYRNS:
Q --document that has been marked as Exhibit B-2 and it consist of
two pages. Can you tell the Court, please, what those documents
are?
A It’s a building permit for the installation of the pool.
Q And it--what is the date of that?
A April 27th of ’95.
Q And then the second document, sir?
A It’s the building permit to install a fence, and that was
September 21st of ’95.
Q To the best of your information and remembrance, would you say
that you constructed that fence, then, in 1995?
A Yes.
Q These documents, does it indicate who the owner of the property
is that the building permit is for?
A Yes. Myself and my wife.
MR. HYRNS: Move for admission of Defendant’s B-2,
your Honor.
MR. KNOX: No objection, your Honor.
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THE COURT: B-2 is received.
(At 10:50 a.m., B-2 admitted)
MR. HYRNS: Thank you, your Honor.
BY MR. HYRNS:
Q Mr. Wormuth, we have some pictures that have been admitted into
evidence; and if you could, take a look at Exhibit Number N, as
in Nancy, please?
A Yes.
Q In that photograph, on the right-hand side, I believe the
testimony was that that is a shed, is that correct?
A Yes, it is. That houses the--the pool pump and filter.
Q The pool was installed, roughly, in 1995. Can you tell me when
this shed was installed, sir?
A It was also installed the same year, at the same time as the
pool.
Q Same year; same time. So-- So 1995?
A Yes.
Q And as your counsel testified, you’re now are aware of the fact
that this shed either, immediately abuts or is, in fact, over
the line of the easement as recorded by the Judgment of 1968?
A Abuts the ’68 easement.
Q Okay. Gonna show you, sir, what has been marked as Exhibit
Number--proposed Exhibit B-3. Is that a picture, sir?
A Yes, it is.
Q Is that a picture-- And does that picture depict that back of
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your shed, that pool shed that--
A Yes, it--
Q --you--
A --does.
Q Okay. It also depicts a white pic--a white fence, is that
correct?
A Yes.
Q And is that the fence that was built then in 199--
A ’95.
Q --1995? And then, the shed that was built in--
A Yes.
Q --1995? Now, in--you have the colored copy, sir, there; and in
the foreground of that there’s a dog, is that correct?
A Yes.
Q And then there are three stakes with orange flags on the top of
those.
A Yes.
Q Do you know anything about those orange stakes and what they--
they--
A Yes.
Q --represent?
A There was a survey for the ’68 judgment ordered by the
homeowner’s association by Wightman and Associates.
Q Okay. And those stakes were placed there as a result of that
survey?
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A Yes.
Q Does this accurately depict the--the property, at least, as of
the date of the survey, in your opinion?
A Yes. In fact, I believe the same day Wightwa--Wightman was out,
Chavez Landscaping was out. These trees that you go stumps
there, those were cut down the same day that--or, probably the
same day, I think. They were there the same time that Wightman
was there. Those were the junipers that were poisoned.
MR. HYRNS: Move for--
THE WITNESS: You can see the other tree next to it is
also dead.
MR. HYRNS: Move for the admission of proposed Exhibit
Number B-3, your Honor.
THE COURT: And B-3 was taken when?
MR. HYRNS: B-3. The Wightman survey was conducted
for the Sunset Shores property owners in--
THE WITNESS: Yeah--
MR. HYRNS: --19--
THE WITNESS: --they--that’s--
MR. HYRNS: I mean, in 2005.
BY MR. HYRNS:
Q Is that correct, Mr. Wormuth?
A I-- I believe it was. I-- I didn’t order it. They did.
MR. HYRNS: We have, your Honor, already marked as
Exhibit L, which is dated July 5th, 2005. It’s a survey for the
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Sunset Shores Homeowners Association.
THE COURT: Any--
BY MR. HYRNS:
Q So, Mr. Wormuth, would--
THE COURT: Any--
BY MR. HYRNS:
Q --you say that that--
THE COURT: --objection to B-3?
MR. KNOX: The only objection to B-3 is the annotation
at the top where it says “2005”. I don’t think the witness
identified the date.
THE COURT: I think--
MR. KNOX: In fact--
THE COURT: --he did.
MR. KNOX: --I don’t think he took the photograph.
THE COURT: I think he just identified it’s about
2005. Am I correct?
THE WITNESS: I-- I-- Honestly, your Honor, I don’t
remember. It was 2--5, 2--6.
BY MR. HYRNS:
Q Your recollection then it was either 2005 or 2006?
A No, approximately. You know.
THE COURT: Okay, Mr. Knox?
MR. KNOX: The photograph, we have no objection to,
and, with the explanation of the--of the witness regarding the
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notation, we have no problem with that.
(At 10:56 a.m., B-3 admitted)
MR. HYRNS: Thank you.
BY MR. HYRNS:
Q Mr. Wormuth, I’m gonna show you what has been marked as
Defendant’s proposed Exhibit Number B-4. Is that a letter to
you, Mr. Wormuth?
A Yes, it is.
Q And was it a letter from Mr. Ed Slingsby on behalf of the Sunset
Shores Homeowners Association?
A Yes, it is.
Q And it-- Can you-- Have you reviewed that letter, sir, or do you
remember receiving--
A Oh, I--
Q --this letter?
A --I definitely remember receiving this.
Q Okay. And, essentially, if you could put in your own words,
what did this letter attempt to tell you off, or, what did it
convey to you?
A Well, what I did after I received this letter, I--
Q No. The question, sir, is what did the letter tell you?
A It told me remove any impediments from there or else they’re
gonna sue me.
Q And you said, impediments from there. There, meaning what, sir?
A The fence, the trees and the--a portion of the shed.
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Q Okay.
A Six inches.
MR. HYRNS: Your Honor, I’d move for admission of B-4.
MR. KNOX: No, objection, your Honor.
THE COURT: B-4 is received.
(At 10:57 a.m., B-4 admitted)
BY MR. HYRNS:
Q Mr. Wormuth, just for--
THE COURT: What is the date of that letter?
THE WITNESS: Your Honor, this is dated July 6 of 2-
05.
BY MR. HYRNS:
Q Okay, Mr. Wormuth, as you indicated, this is dated July 6, 2005,
correct?
A Yes.
Q And it refers to a--a survey done by Wightmans, is that correct?
The letter refers to a survey done by Wightman?
A Yes.
Q And then we have as Exhibit L, Wightman’s survey dated the day
before, 7-5, 2005, correct?
A What are you-- What are you referring to, Mister--
Q The date--
A --Hyrns?
Q --on this drawing, sir. It’s--
THE COURT: Do-- He probably-- Do you have a copy of
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Exhibit L?
MR. HYRNS: It is, and it’s in the book, your Honor.
THE COURT: Why don’t you take a look at that?
THE WITNESS: Okay, yeah, it sa--it states, 7-5, 2-05.
BY MR. HYRNS:
Q Thank you. And, essentially, the letter says that--that in
their opinion and based upon the survey that you have a fence
and plantings in the--in the easement area, is that correct?
A Yes.
Q And have requested you to remove those items?
A Yes.
Q And you responded to this letter in what fashion, Mr. Wormuth?
A My response was, I placed probably anywhere from 4 to 5 calls to
Mr. Slingsby; I left messages 4 to 5 times; had no response from
him; and, my next move was to secure an attorney.
Q And did you do that, sir?
A Yes, I did.
Q And then that same year, 199--2005 did you institute a lawsuit?
A Yes, I did.
Q Thank you. Let’s use that book of documents there, the black
book there on your chair, sir. First of all, let’s look at
picture number N. N as in Nancy, sir. Do you have it?
A Yes, I do.
Q Do you agree with your counsel that the current condition of the
walkway is approximately 4 feet in width in some areas?
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A Today?
Q Today.
A Yeah, as it is today.
Q Four feet?
A In-- In--
Q Yes.
A --certain locations, yes.
Q Thank you. Is the-- What’s depicted, and then, what was--what
would you say would be the width of that walkway, sir?
A Seven, 8, 9, 10 feet. It varies.
Q Same question with respect to picture Number O, sir?
A Approximately 10 feet.
Q Picture P?
A Approximately 10 feet.
Q Picture V, V as in Victor,
MR. KNOX: He’s got that one there.
MR. HYRNS: It’s not in the book, sir.
MR. KNOX: It’s the Oselka Construction Equipment
photo. It’s-- It’s up there, probably on the table.
MR. HYRNS: Your Honor, I apologize. We’re looking
for Exhibit V.
THE WITNESS: Here it is, sir.
BY MR. HYRNS:
Q Thank you. And that Exhibit V, had some large equipment, is
that correct?
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A Yes.
Q And that large equipment, you testified, belonged to Oselka?
A Yes, it was.
Q You testified that it went down the easement area to gain access
to the beach for repair purposes?
A Yes, it did.
Q And in what year did you say that occurred, sir?
A ’96.
Q 1996?
A Yes, I believe.
Q And--
A Yes.
Q And then from the--from the trac--width to width, how wide would
you say that equipment is, sir?
A Ten feet. He damaged-- You know, as they came through there, he
brushed up against Lot number 24’s shrubbery quite a bit.
Q Mr. Wormuth, you testified that you had a survey prepared at the
time that you purchased the property.
A I was given a survey, yes.
Q Have you seen that survey in any of the documents that we’ve
discussed today?
A Have I seen that survey?
Q Has it been marked as any ex--exhibits today?
A No.
Q Back to the equipment in Exhibit V; you said you allowed it to
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park on your bluff area?
A Yes. Down below the bluff, yes. The bottom portion of that
bluff was damaged due to the storm.
Q Mr. Wormuth, do--do you now realize that when you erected the
white fence that you erected it on, or over, a portion of the
easement that was granted to the homeowners of Sunset Shores
either by the 1968 Judgment or by the corrected deed of easement
of 1967?
A I was to--totally unaware at the time.
Q No, I’m asking, today’s date. You now are ware--are aware of
that, correct?
A Yes. If the ’68 judgment was valid.
Q Okay. And if the ’67 corrected deed of easement was valid,
you--you acknowledge the fact that you placed plantings, fences
and shrubbery over that easement area?
A You gotta understand--
Q It’s a yes or no question, sir. Do you now understand--
A I erected the fence per the survey I was given at the time of
purchase.
Q The question, sir, is this, though: Do you know understand that
when you erected the fence and you made those plantings, that
you intruded on the easement as recorded from the 1968 Judgment?
A To my knowledge, I didn’t intrude on anything.
Q And do you acknowledge that your fence, plantings that are
depicted in the pictures, in fact, intruded on the corrected
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deed of easement from 1967? Do you now know that?
A At the-- At the present moment, yes. That’s why I’m here in
court.
Q Okay. And that gets me to that next question, Mr. Wormuth. Why
are you here in court?
A I’m here in court to resolve the real estate issue. I-- I stood
on those railroad ties at the time of purchase with the selling
realtor. They identified that as being the easterly--
Q I want-- I don’t wanna--
A --east--
Q --hear--
MR. KNOX: Well, your Honor, he’s allowed to answer
his question. It was an open-ended question. It was not a
leading question. He can answer it.
MR. HYRNS: I’m not soliciting hearsay, though, your
Honor.
THE WITNESS: This isn’t.
MR. KNOX: It’s then-- Then the objection is--
THE COURT: Okay--
MR. KNOX: --nonresponsive--
THE COURT: Okay, just--
MR. KNOX: --then the response--
THE COURT: --a second.
MR. KNOX: --is, in fact--
THE COURT: Whoa. Whoa.
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MR. KNOX: --to his question.
THE COURT: Just a second. Can you get the exact
question, tell us the exact question?
THE CLERK: It’s gonna take a while.
THE COURT: Okay. Mr. Knox, how did you hear the
question?
MR. KNOX: Well, he asked him to describe why he’s
here in court today--
THE COURT: Okay.
MR. KNOX: --and--
THE COURT: And you--
MR. KNOX: And to the--
THE COURT: Just a--
MR. KNOX: --extent--
THE COURT: --second. Whoa. Do you agree with that,
Mr. Hyrns?
MR. HYRNS: I asked Mr. Wormuth why we are here.
THE COURT: Mr. Wormuth, you’re entitled to answer
that question.
THE WITNESS: The reason I’m here in court today is to
secure the piece of property that I purchased per the survey I
was given at the time of purchase.
BY MR. HYRNS:
Q And that survey is not here in court--or, hasn’t been marked as
of yet, is that correct, Mr. Wormuth?
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A I have-- It has not been produced as evidence.
Q Okay. And the resolution that your attorney is recommending to
this court, the re--the revising of the plat, what--is it your
understanding that it, in fact, moves the easement area to the
west?
A It moves--
MR. KNOX: Object-- Object to the question--
THE WITNESS: It moves--
MR. KNOX: --in that it’s--
THE WITNESS: It moves the easement--
MR. KNOX: --fash-- Hang on--
THE COURT: Whoa.
THE WITNESS: --to where--
MR. KNOX: --Bill.
THE COURT: Whoa.
MR. KNOX: Hang on.
THE COURT: Whoa, just a second.
MR. KNOX: Object to the question in that it is vague
because he’s talking about an easement area which has been used
several in several different contexts during the course of the--
the testimony so far.
THE COURT: Okay. Mr. Hyrns, when you say, remove--
or, move--
MR. HYRNS: Yes.
THE COURT: --the easement, what specific easement are
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you referring to?
MR. HYRNS: Thank you, your Honor. Thank you, Mr.
Knox.
BY MR. HYRNS:
Q On the diagram, which is in that booklet also, marked as Exhibit
L, there’s a hash mark easement area; do you agree with that,
Mr. Wormuth?
THE COURT: The hash mark being the one--
MR. HYRNS: It’s--
THE COURT: --in squares?
MR. HYRNS: With the squares, which is on the right-
hand side of the drawing, your Honor.
BY MR. HYRNS:
Q Exhibit L.
A And the que-- And the question is?
Q Is it your understanding that your counsel’s proposal is to move
that easement, the one in the block squares, right-hand side of
the drawing, to the left, or to the west towards the lake?
A Okay. The block squares being my back yard, correct?
Q Yes.
A Okay. Yes.
Q And then, essentially, move that easement--
A To where it is right now.
Q --off from your property into the property of--
A I still own part of the easement where it’s at right now. At
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this present day, I own 5 feet, and my neighbor, Lot 24, owns 5
feet. So it’d still be on my property, and it has been on my
property for 50 years.
Q Okay. The boxed in easement area currently is all on your
property, is that correct--
A The boxed in--
Q --sir?
A --easement is part of the back yard that I purchased in 1995.
Q Okay. Then the easement, if it gets moved as being recommended
by your counsel will be part on your property and part on the
property--
MR. KNOX: I’m gonna-- I’m gonna object, your Honor,
because that’s a mischaracterization. The proposal that we set
forth creates a dedicated walk, fee simple title and the owners
of the--of the residence of Sunset Shores. It’s not gonna be
part on anybody’s property, it’s gonna be dedicated, fee simple,
to the owners of Sunset Shores. I don’t think that’s a problem.
THE COURT: Well, just a second. Mr. Hyrns is asking
his questions.
MR. HYRNS: Thank you.
BY MR. HYRNS:
Q The ques--
THE COURT: Mr. Hyrns, just--how--how much longer do
you anticipate being?
MR. HYRNS: I see its 11:08, your Honor. I could
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conclude by 11:10, hopefully.
THE COURT: Okay.
BY MR. HYRNS:
Q The-- The question, sir, is when it--when it--as the proposed
movement of that walkway, will it levee on some of your property
as it currently exist?
A We’re not moving the walkway ‘cause the walkway is existing as
it has been for 50 years. We’re not moving the walkway.
Q You-- You don’t--
A We’re moving it on paper, that’s all.
Q Okay. The walkway on paper, does it get moved?
A No. The walkway isn’t being moved anyplace. It’s a--
Q You made the distinction. The walkway as depicted on paper, is
it being moved?
A Not-- My survey is not being moved.
MR. HYRNS: I’ve no further questions, your Honor.
Thank you.
THE COURT: Okay. Did you have anything further?
MR. KNOX: I do, your Honor.
THE COURT: Okay. Well, we’re gonna take a quick
break for about 10 minutes and come back.
THE COURT OFFICER: All rise, please.
(At 11:10 a.m., court recessed)
(At 11:21 a.m., court resumed)
THE COURT: Mr. Knox--
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MR. KNOX: Yes, sir.
THE COURT: --can you give us some idea of what you--
You can step back up here, Mister--
THE WITNESS: Thank you.
THE COURT: --what you anticipate for the rest of your
proofs?
MR. KNOX: I anticipate 15 minutes with Mr. Wormuth,
15 minutes with Mr. Lieberg, right there, and that will be the
extent of it on the--the subdivision amendment side of it.
THE COURT: Okay.
MR. KNOX: The adverse possession side we got set for
Friday.
THE COURT: Okay. And, Mr. Hyrns, how long do you
anticipate?
MR. HYRNS: Your Honor, I have 3, maybe 4, witnesses;
probably, an hour and a half, maybe.
THE COURT: Okay. After we-- How about with Mr.
Lieberg, how long do you think you’ll be with him? What I’m
trying to figure out is can we get Mr. Knox’ evidence in before
we break for lunch.
MR. HYRNS: I-- I would say that we can get Mr. Knox’
evidence in. I’m not sure that I’ll finish my cross of Mr.
Lieberg before twelve o’clock noon.
THE COURT: Okay. Before when?
MR. HYRNS: Be-- Before noon.
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THE COURT: Well, how--how long do you think it’ll be,
though?
MR. HYRNS: I haven’t heard what he has to say yet.
THE COURT: Okay.
MR. HYRNS: My best guess, your Honor, maybe about 15
or 20 minutes.
THE COURT: Okay. So you think you’ll be finished by
12:30?
MR. HYRNS: (No verbal response)
THE COURT: Okay.
MR. HYRNS: Yes, sir.
THE COURT: Then I think we’ll try to get you
finished--
MR. KNOX: Yes, sir.
THE COURT: --before we break for lunch.
REDIRECT EXAMINATION
BY MR. KNOX:
Q Okay, Mr. Wormuth, let me hand you what we’ve marked as Exhibit
W.
THE COURT: Mr. Knox, I think I made an error here.
Before you start, is there anyone else who has any questions for
Mr. Wormuth?
MISS LEMONNIER: I do.
THE COURT: Okay, you do? Okay, Mr. Knox, I’m going
to allow this before I-- I should’ve--
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MR. KNOX: Yes--
THE COURT: --done--
MR. KNOX: --your Honor.
THE COURT: --this before and I, frankly, forgot.
MISS LEMONNIER: This is what I do; I walk up here and
state my name--
THE COURT: Yes.
MISS LEMONNIER: --again?
THE COURT: And just--
MISS LEMONNIER: Thanks. My--
THE COURT: --you have to--
MISS LEMONNIER: --name is--
THE COURT: --state your--
MISS LEMONNIER: --Shari--
THE COURT: --name again.
MISS LEMONNIER: --Lemonnier and I have a few
questions for Mr. Wormuth.
CROSS-EXAMINATION
BY DEFENDANT LEMONNIER:
Q You bought your property in 1994 I understand, is that--
A That’s--
Q --true?
A --correct. Yes.
Q And before that you had been down on that beach, you said you
brought your jet ski there and you were enjoying
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A Not--
Q --beach.
A --a lot. I-- I would say, one or two occasions, maybe--maybe
only one occasion.
Q But you were familiar with that beach--
A I-- I was--
Q --correct?
A --familiar with the area--
Q And when you bought the--
A --and the beach.
Q --property, you checked the beach out and you were aware of the
location, there were people on--
A I--
Q --the beach and--
A I never had a problem with people on the beach. I never had a
problem with the easement, you know.
Q Right. So you bought--
A And, in fact--
Q --it because you--
A --in fact, I--
Q --thought it was--
A --enjoy--
Q --a great property?
A --I enjoyed some of the company of the people that--
Q Nice.
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A --used the beach.
Q Right. And you were aware that there were people who used that
beach and that there were different ways that they came down?
A There wasn’t different ways. The-- The one that you--I know
specifically what you’re getting to is this--
Q Yes.
A --the staircase and the easement. That staircase wasn’t there
when I purchased the property. The East Beach was there, which
is 500-footed beach. Why would they come over to 40-footed
beach and not use the 500-footed beach with a separate easement?
Q Exactly. And in--
A So when--
Q --1990--
A --the beach disappeared, the East Beach left, that’s when the
staircase went in and it caused--it cause havoc.
Q It did.
A I sent --
Q It--
A --a letter to Mr. Pokuta and with conversations with him and
explained what the situation was down there. The Sunset Shores
Homeowners Association agreed to remove that staircase, and then
when havoc broke--and the staircase was removed. Then when the
lawsuit issue started again--
Q Again.
A --and then--
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Q The first one with--
A --unbeknownst--
Q --being what?
A No, I mean the--then after this the lawsuit started, there was a
lot of animosity between me and the homeowners association and a
select view of the Sunset Shores homeowners. And I’m meaning, a
select few. And then the City approved them to put a staircase
in there, which really doesn’t have a legal easement. It’s--
Half of that staircase is on someone else’s property.
Q Okay. That-- Actually, that staircase is on public property.
MR. KNOX: And I’m I hate to--
THE WITNESS: Part of it.
MR. KNOX: --object. Shari, I’m sorry.
MISS LEMONNIER: That’s all right.
MR. KNOX: I-- I hate to object, your Honor, but I
think this line of questioning, for clarity purposes, relates to
access to the--the beach on the other side of the creek. The--
THE COURT: The other side--
MR. KNOX: The north side--
THE COURT: --then--
MR. KNOX: --which is not at issue here.
THE WITNESS: No.
MISS LEMONNIER: It’s-- It’s an issue in the document
you just handed me, and that’s the reason I wanna clarify, just
for the sake of it not becoming a sale game to illustrate this
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and doing something else in that document that really does--
THE COURT: Which document--
MISS LEMONNIER: --pertain to--
THE COURT: --are you referring to?
MISS LEMONNIER: The one--
MR. KNOX: It’s the--
MISS LEMONNIER: --that--
MR. KNOX: It’s the--
MISS LEMONNIER: The judgment.
MR. KNOX: --proposed consent judgment with paragraph
4c added that says, anything on the other side of the creek,
we’re not--we’re not affecting. I’m--
MISS LEMONNIER: Right.
MR. KNOX: --paraphrasing.
MISS LEMONNIER: The-- The any-and-all language in
that document was what I wanna clarify, because it does say “any
and all other easement shall be vacated.” The paragraph he gave
me addresses that but there’s other language. I just wanna make
it crystal clear that--
THE COURT: Well--
MISS LEMONNIER: --we’re not dealing--
THE COURT: Okay.
MISS LEMONNIER: --with that.
THE COURT: Well, just--just so we’re--before we get
into this too far, maybe if you could just state what the issue
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is, because Mr. Wormuth may not be the--be the best person to
answer your question.
MISS LEMONNIER: Okay.
THE COURT: So, if you could state to Mr. Knox exactly
what the issue is and let’s see if we can get a response from
Mr. Knox.
MISS LEMONNIER: The issue is I want to clarify the
intentions of this judgment to just be dealing with that one
walkway and not have any additional sneaky language - I don’t
think-- I don’t wanna say in a bad way - that affects me
adversely and the other homeowners, and--
THE COURT: Okay, let me--
MISS LEMONNIER: --specifically--
THE COURT: --stop you-- Okay, go ahead.
MISS LEMONNIER: --specifically, because there were
times when Mister--Mr. Wormuth called the police about issues
that are dealt with here that are not being dealt with.
THE COURT: Okay, well, let’s just see if--what Mr.
Knox says in--
MISS LEMONNIER: Okay.
THE COURT: --response to that.
MR. KNOX: Okay.
MISS LEMONNIER: All right.
THE COURT: Wait. You don’t have to leave
MISS LEMONNIER: Okay.
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MR. KNOX: Yeah, the--the intent of this not to affect
any issue associated with the beach that’s on the other side of
the creek, the north side of the creek.
THE COURT: Is that called the East Beach?
MR. KNOX: That’s what I’ve been calling the East
Beach. I think that’s right.
MISS LEMONNIER: Yes. Yes.
MR. KNOX: It’s the East Beach. We’re not touching
that. That-- That was created by a document, Liber 169, page
22. We included a provision in our consent judgment that says
that, Liber 169, page 22 remains in full force and effect, not
touched one way or the other. We’ve also included proposed
language which is on a separate page, 4c that says if you’ve
accessed the--the--that beach by prescriptive easement along the
creek, that’s still there. There’s nothing that--that changes
that. The only thing that we are changing and we are asking the
Court to order is the location of this walkway where it is,
that’s it. In fact, you don’t even see the East Beach on this
drawing.
MISS LEMONNIER: Then I--I just have one question.
BY DEFENDANT LEMONNIER:
Q Mr. Wormuth, then, this is the only concern for your--you today
and not the issue of the people who use that prescriptive
easement?
A None. And my--my issue right now is retaining the property that
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I purchased per the surveys that I was given at the time of
purchase.
Q And--
A And my predecessor’s, you know, also received that same survey
and it was a piece of property they purchased.
Q Yes. What was the first year you contacted Mr. Knox, to retain
his service to represent you?
A I-- I--
Q Was it before 2005?
A I would have to refer that question to Mr. Knox.
MR. KNOX: Was it-- I can ask the question.
Did you contact me after you got the letter from Mr.
Slingsby?
THE WITNESS: Yes, it was.
MR. KNOX: That was the question.
THE WITNESS: I assume--
BY DEFENDANT LEMONNIER:
Q Had you--
A --probably--
Q Had you--
A It was the--
Q --ever--
A --same week--
Q --contacted him before that?
A Never. No.
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Q Okay, thank you.
MISS LEMONNIER: That’s all I need to know.
THE COURT: Okay.
MISS LEMONNIER: I just step down now?
THE COURT: Okay, was there--
MR. KNOX: You’re--
THE COURT: --anyone else?
MR. KNOX: --all set. Sure.
THE COURT: Okay. Mr. Knox, we’re back to you.
MR. KNOX: Yes, sir. Okay.
REDIRECT EXAMINATION CONT
BY MR. KNOX:
Q Mr. Wormuth, let me hand you what we’ve marked as Exhibit W. Do
you recognize Exhibit W?
A Very well.
Q And what is Exhibit W?
A This is a copy of the--the survey I received at the time of
purchase. Also, this is the same survey I gave to Jim Dorden,
who is the owner of Glamour Pools who did the pool installation
and installed the fence.
Q Okay.
A And I received--he re--I think he also received a copy of this
from the City of New Buffalo.
MR. KNOX: Your Honor, at this point we move for the
admit--excuse me, the admission of Exhibit W.
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THE COURT: Any objection to Exhibit W?
MR. HYRNS: No objection, your Honor.
THE COURT: Okay, Exhibit W is received.
(At 11:31 a.m., PX W received)
BY MR. KNOX:
Q Okay, Mr. Wormuth, you moved in 1994, correct?
A Yes.
Q In 1994 did anyone from the homeowners association or any
resident approach you and say the walkway as it presently
existed was inadequate?
A No. Never.
Q Did-- Did anyone in 1994 approach you and asked to use the
purported walkway that was created by the ’68 Judgment?
A No.
Q Okay, now, Exhibit B-2 are the building permits that Mr. Hyrns
admitted that show that in 1995 you put a fence in, correct?
A That’s correct.
Q Did anyone in 1995 approach you and say the fence was in the
wrong--the wrong position?
A Several fe-- Several people approached me and complimented the
beautification of the property.
Q Did anyone tell you the fence was encroaching up the 1968
Judgment?
A Not at all.
Q Did anyone tell you in 1995 that the walkway they were presently
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using was inadequate?
A Never an issue.
Q Did anyone in 1996 tell you the walkway was inadequate?
A No. They enjoyed it as they normally had in the past.
Q Did anyone in 1997 ever--ever tell the walkway was in adequate?
A Never mentioned.
Q 1998?
A Never.
Q ’99?
A No.
Q 2000?
A No.
Q 2001?
A No.
Q 2002?
A No.
Q 2003?
A No.
Q 2003?
A No.
Q 2004?
A No.
Q Did anyone, during any of those years approach you and tell you,
we don’t wanna use the walkway, we want the ’68 Judgment?
A Never.
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Q When is the first that anyone approached you and said they
wanted to use the ’68 Judgment?
A Upon-- That was the letter that Mr. Slingsby sent me. That’s
the first time that I’ve ever heard mentioned from the
homeowners association.
Q And that --
A --the--
Q --was the--
A --the ’68--
Q --Exhibit-- I’m sorry. That’s Exhibit B-4, correct?
A This is the only time that Sunset home--homeowners, or anybody,
a resident or anybody, a member of the association had mentioned
to move my...
Q And what is the date on that letter?
A That is dated July 6 of 20-5.
Q And it’s from Mr. Slingsby?
A Yes, it is.
Q And he-- For purposes of clarification for the Court, he’s the
gentleman sitting at counsel table, correct, with--with Mr.
Hyrns?
A Yes.
Q Now, in 2005 did anything happen to the shrubs that are located
in front of your building?
A On the front, street side?
Q Yes.
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A Yes. They were-- They were poisoned.
Q Okay. Take a look at Exhibit B-3 that was admitted by Mr.
Hyrns, it’s a photograph.
A Yes.
Q And have you got that original there?
A Yes.
Q Okay. What does Exhibit B-3 show?
A It shows stakes that were installed by Wightman and Associates.
Q And to the right of ex--of those stakes what do you see?
Stumps, right?
A Yes, tree stumps that were freshly cut. You can-- They’re
identified by being freshly cut by the condition of the cut
mark.
Q Why were those trees cut?
A Dead.
Q And why were they dead?
A Poisoned, sprayed.
Q Now, was that about the same time that you got the letter from
Mr. Spoon--Slingsby?
A Yes.
MR. KNOX: No further questions, your Honor.
THE COURT: Okay, Mr. Hyrns, do you have something
further?
MR. HYRNS: Thank you, your Honor.
RE-CROSS EXAMINATION
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BY MR. HYRNS:
Q Do you still have Exhibit W there with you, sir?
A W being-- Describe it.
Q Survey.
A Yes, I do.
Q Can you locate on that survey, sir, a date?
A I don’t see a date on here.
Q Do you know if that survey then was prepared--
A Oh, it--
Q --pri--
A --was January 16--17, 20--it’s stamped--or, ‘cause that’s an
email thing.
Q Actually, it’s a fax date.
A A fax date, yes.
Q And it’s from Pleasure Pools, correct?
A Glamour Pools, yes.
Q Okay, Glamour Pools. But, again, for the date of the making of
that survey, is there a date that shows when the survey was
prepared?
A I don’t see one on here.
Q It is possible then that that da--that survey could have been
prepared prior to 1967?
A I believe it’s off the original subdivision plat. That’s where
he took the survey from.
Q Okay. So is it possible then that it was prepared prior to
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1967?
A Yeah. It was retained from city hall. Whatever the original
subdivision plat showed in city hall, which shows the easement
where it is and where it has been for 50 years.
Q When you purchased the property in 1994 how much did you pay for
it, Mr. Wormuth?
A I don’t think that’s relevant to the case, is it?
Q It might. It may be, and, upon your answer.
A I paid two hundred-- I paid $395,000 for it.
Q And that price again, sir?
A Three hundred and ninety-five thousand.
Q Okay. So in 1994 you paid $395,000 for--
A Yes.
Q --two--two lots, Lots 25 and 26--
A Yes.
Q --correct?
A Um-hum.
Q And you, on your deed-- And on your deed it says, subject to a
1968 Judgment, correct?
MR. KNOX: I’m gonna object, your Honor.
THE WITNESS: No, it--
MR. KNOX: I’m not sure this is particularly relevant
to modification of the subdivision plat.
THE COURT: Mr. Hyrns.
MR. HYRNS: I’ll strike that last question, your
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Honor.
BY MR. HYRNS:
Q The time you purchased did you acquire or obtain a current
survey of your property, sir, either prior to your purchase or
immediately thereafter?
A Yeah. I received--
Q No.
A --this--this is my--
Q Did you--
A --survey from my attorney.
Q Okay.
A Now, I--I--
Q My question to you, sir--
A I--
Q --is this.
A Okay, I trusted my--
Q Did you--
A --attorney--
THE COURT: Okay, well--
THE WITNESS: --to advise--
MR. KNOX: I don’t know--
THE WITNESS: --me accordingly.
THE COURT: --just-- Whoa--
MR. KNOX: Bill--
THE WITNESS: --me accordingly.
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THE COURT: Whoa. Mr. Wormuth--
MR. KNOX: Bill--
THE COURT: --Just a second.
MR. KNOX: --just wait till he asks the question.
THE WITNESS: Okay.
THE COURT: Just--
THE WITNESS: Your Honor--
THE COURT: What’s your--
THE WITNESS: --I’m sorry.
THE COURT: --question, Mr. Hyrns?
THE WITNESS: Your Honor, I apologize. Just listen to
the questions being asked.
BY MR. HYRNS:
Q Did you, yourself, retain a surveyor to prepare a survey of the
property either that you were purchasing or had purchased in
Sunset Shores around calendar years 1994 or 1995?
A No, I did not.
MR. KNOX: Your Honor, I’m going to object because
this is beyond the scope of what we’re trying to do, at least
today, and that is, address the--the potential objections to
our--our proposed modification.
THE COURT: Okay, the--you introduced the survey and
Mr. Hyrns is asking questions re--regarding that, so I will--
MR. KNOX: I--
THE COURT: --over--
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MR. KNOX: I--
THE COURT: --overrule--
MR. KNOX: --introduced--
THE COURT: --the objection.
MR. KNOX: --the survey because Mr. Hyrns said, you
didn’t introduce the survey, so.
THE COURT: You introduced the survey so Mr. Hyrns is
free to ask some questions. And you’ve just asked-- Did you get
an answer to that question?
MR. HYRNS: I’m not sure if I got an answer.
BY MR. HYRNS:
Q So, if you can again, sir, did you--did you pay for a survey of
the property that you acquired at Sunset Shores in calendar
years 1994 or 1995?
A No, I did not.
Q Thank you.
MR. HYRNS: No further questions.
THE COURT: Okay, you may step down. Thank you.
(At 11:39 a.m., witness stepped down)
MR. KNOX: You can leave that up there, Bill.
Your Honor, we would call Brian Lieberg.
THE COURT OFFICER: Raise your right hand, please. Do
you solemnly swear or affirm the testimony you’re about to give
in the matter now pending before the Court shall be the truth,
the whole truth, and nothing but the truth, so help you God?
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MR. LIEBERG: Yes.
THE COURT OFFICER: Thanks. You may be seated.
BRIAN LIEBERG
called by the Plaintiff at 11:39 a.m., sworn by the bailiff,
testified:
DIRECT EXAMINATION
BY MR. KNOX:
Q Mr. Lieberg, would you introduce yourself to the Court?
A Good morning. My name is Brian Lieberg. I’m a professional
land surveyor, licensed in Michigan and Indiana. I’m employed
by Wightman and Associates.
THE COURT: And you spell that, L-E-B-E-R-G?
THE WITNESS: L-I-E-B-E-R-G.
BY MR. KNOX:
Q Mr. Lieberg, would you--have you ever been to the Sunset Shores
Subdivision?
A Yes.
Q About how many times would you approximate?
A At least a dozen times.
Q Have you ever conducted a survey of the--Lots number 24 and 25
for purposes of locating walkways that may be recorded or that
may exist on those properties?
A Yes.
Q By whom have you been retained in order to identify the property
interest involved?
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A I-- Mr. Wormuth; I think we’ve done some work for the City of
New Buffalo; and Sunset Shores Homeowners Association.
Q And have you also done a--a survey in this area for Mr.
DeFrancesco?
A Yes.
Q Is it fair to say you have approached your surveying of this
area in a disinterested manner?
A A neutral manner.
Q And let me ask you if you can identify Exhibit M. You can
stand--
MR. KNOX: Your Honor, is it okay if he stands up and
approach?
THE COURT: Just a second. What-- If you’re gonna
testify from there, we’ll need the microphone for him.
(At 11:42 a.m., witness off stand)
BY MR. KNOX:
Q Okay, the fact that... If you can stand over here so the judge
is able to see what you’re pointing to. Could you identify
Exhibit M?
A Exhibit M is a drawing that we prepared for Bill Wormuth that is
gonna be used in--as an--as an exhibit to show the depiction of
the proposed changes on the lots and the walkway for an amended
plat.
Q And is Exhibit M prepared with the coordination of any state
agency?
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A The State of Michigan.
Q And who with the State of Michigan did you work in preparing
Exhibit M?
A Nick Cleaver.
Q What is depicted as a walkway on Exhibit M?
A The area between a parcel stated as the first available lot
number and second available lot number.
Q Okay. And would you point to that for the benefit of the Court?
A This area, right here.
Q Okay, you’re identifying a--
A It’s labeled on the drawing as “walk private, revised location
of 10-foot walkway.”
Q Okay. On the--the lot to the left of that it says “verst--First
available lot”. Presently, what lot number is that on the plat?
A A portion of Lot 24.
Q And on the right side it says “second available lot,” what lot
is that on the--the subdivision lot--the subdivision plat?
A It’s a portion of Lot 25.
Q The walkway portion that you have designated on Exhibit M, it
says, “walk private”, that--that area. What does that
represent?
A That represents, a portion of the vacated walk as it exist
currently on the plat and a portion of Lot 25.
Q Okay. Does that represent the area that is currently being used
as a walk from Shore Drive down to the beach area?
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A Yes.
Q And when you surveyed that area did you go out and put stakes
in?
A Yes, we did.
Q And was your intent, when you surveyed that portion of Lot 24
and Lot 25, to identify the present area being used as a walk?
A Yes.
Q The-- Now, what is the width of the walk that’s provided for on
Exhibit M?
A Ten feet wide.
Q At points were the--was the present walk narrower than 10 feet?
A No.
Q Okay, so the walk was, essentially, 10 feet all the way through?
A Yes. On-- On this exhibit?
Q No. Actually, I’m talking about on the ground. I’m sorry. Was
the walk as it existed, at points, did it become narrower than
10 feet?
A The physical walkway--
Q Physical--
A --yes, it--
Q --walkway.
A --it varied.
Q Okay. But, nonetheless, the dedicated walk you’ve identified on
Exhibit M, you’ve identified as being 10-feet wide, correct?
A Proposed to be 10-feet wide, yes.
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Q Which would mean that anyone who’s the beneficiary of that
dedication could use the entire 10 feet regardless of what’s on
the ground now?
A That’s correct.
Q There is a beach area identified on Exhibit A, correct?
A That’s correct.
Q When you-- Would you point to that for the benefit of the--the
Court?
A This area, right here.
Q When you drew the area that is shown as the beach area was it
your intent to identify the area of that ’68 Judgment that’s
used as a beach?
A That is correct.
Q So, to be clear, the ’68 Judgment created one single easement;
that included beach and included walkway, correct?
A Yes.
Q And your intent in preparing that document was to segment out
the walk, relocate it on paper, to where it presently is but
keep the beach area that’s used from the ’68 Judgment to keep it
as it is in the ’68 Judgment?
A That is correct.
Q Okay. Okay, Exhibit L is a drawing that shows the ’68 Judgment,
Lot 25, Lot 24, the “walk per plat”, correct?
A That’s correct.
Q Does Exhibit 4--Exhibit L rep... Strike that.
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MR. KNOX: We’ll just offer Exhibit L into evidence
at this point.
THE COURT: Okay, any objection to Exhibit L?
MR. HYRNS: No.
THE COURT: Okay, Exhibit L is received.
(At 11:47 a.m., PX L admitted)
BY MR. KNOX:
Q Okay, one last question with regard to Exhibit M. Exhibit M,
with the exception of the relocation of the walk area that we
see here to redo--to reflect what’s presently on the ground, is
the 1968 Judgment retained? Do you understand what I’m asking?
Probably not.
A Not quite.
Q Okay. Is the only thing that is changed from the 1968 Judgment,
as reflected on Exhibit M, is the only thing that changed is the
walkway that we show designated on here?
A Yes. The walkway moved over to the present-day location, which
is 10-feet wide, and then what we did was these--this
southwesterly line and this northeasterly line reflect the same
southwesterly and easterly line as depicted on the 1968
document.
Q Okay. Based upon your going to the Wormuth residence for, you
know, north of--north of 12--12 times on behalf of many people
in this room, are you in a position to testify that Exhibit A,
in terms of the beach area and in terms of the walk, reflects
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actually what’s in--in existence on the ground today?
A Yes.
MR. KNOX: No-- We would move to admit Exhibit M,
which is the proposed modification.
THE COURT: Any objection to Exhibit M?
MR. HYRNS: No.
THE COURT: Okay, Exhibit M is received.
(At 11:48 a.m., PX M admitted)
MR. KNOX: No further questions.
CROSS-EXAMINATION
BY MR. HYRNS:
Q Brian, can you take in your possession that black book there,
please? Thank you. And can you turn to Exhibit K?
A Okay.
Q Okay. Is that drawing prepared by your company?
A Yes.
Q Was that drawing prepared by yourself?
A Yes.
Q Go to Exhibit L, please. Is that drawing prepared by your
company?
A Yes.
Q And was that drawing prepared by yourself?
A Yes.
Q And when we’re talking about Exhibit M here, which is in the
booklet also, next page, was that prepared by your company?
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A Yes.
Q And was it prepared by yourself?
A Yes.
Q First set of questions, sir, in the Exhibits K and L, during
your survey, were--were you able to identify the walkway or the
community beach as ordered in the 1968 Judgment?
A Yes.
Q There was no problem with clarity or defining that on the ground
from the survey and standpoint?
A No. The legal description?
Q Yes, sir.
A No.
Q And in those two documents, K and L, do you de--depict the 1968
Judgment?
A Yes.
Q And how is it depicted?
A It’s depicted by a hashed area, and a square type hash.
Q Now, in reference to Exhibit M, is the 1968 Judgment depicted--
the walkway of that 1968 Judgment depicted on that diagram at
all?
A No.
Q Can you show the Court where the 1968 Judgment would be on
Exhibit M?
A Approximately?
Q Approximately, yes, sir.
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A And I should stand up. Do you want me to stand up?
Q Thank you.
THE COURT: Grab the microphone.
THE WITNESS: The walkway from the 1968 Judgment would
be to the easterly side of the walkway--of this private walkway,
right in this area here.
BY MR. HYRNS:
Q And if you have any estimate or guess as to how many feet to the
right or to the east of that walkway depicted on Exhibit M?
A Well, approximately, maybe 10--10 feet or so.
Q Thank you. On Exhibit M you were asked to make a delineation of
where the community beach easement was, is--
A Yes.
Q --that correct?
A That’s correct.
Q Okay. I-- I hate to do it, would you show the Court where you
put the community beach easement?
A Right in this area. Just like that.
Q Okay. And then you, on Exhibit M, also put in where the platted
walkway would be, or, in that case it’s called the “walk
private”, is that correct?
A The-- The new proposed--
Q Yeah.
A --location?
Q That’s--
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A Yes.
Q --correct.
A Yes.
Q And where is that, for the Court and my benefit?
A That is here on the dark line.
Q How did you determine the demarcation between the walk and the
community beach easement; in other words, where one stops and
the other one starts?
A This is approximately at the tow of the slope that goes down the
hill where it becomes actual beach--the beach area.
Q So, the answer to my question is, is that you made the
determination where to stop--stop or start the walk and where to
start or stop the community beach?
A Correct.
Q Okay. And that--that bold line at the top of the walkway is the
tow of the dune?
A It’s approximately the tow of the slope, going down from the
walkway, down to where the sand portion of the beach is.
Q Can you show to the Court where the--where the 1968 Judgment
walkway extended to? And again, I’m asking you for an
approximation.
A Well, in the 1968 Judgment, the walkway and the beach area were
all--there--there wasn’t a separate designation, but they--the
narrow portion that was approximately 10-feet wide extended
here, and then the easterly edge, it continued to the creek, was
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here, and then the southwesterly edge that kind of angled
northwesterly off of the walk, followed this line up to the
water’s edge of Lake Michigan.
Q At the termination of the walkway, per the 1968 Judgment,
approximately how many feet across would--would your guesstimate
be?
A Are you-- This area here?
Q Yes.
A Ten-- Ten feet.
Q Ten feet? The-- The drawing that we’re looking at, Exhibit M,
is--is that a certified drawing; what--what do we refer to that
as?
A That’s sort of-- We commonly refer to it as a sketch at this
point. I haven’t --I haven’t set any irons. I haven’t staked
anything.
Q Okay. What’s it take to be the difference between a sketch and
a certified drawing?
A There should property corners that will be set, bearings and
distances, legal description; which this is--was drawn in
conjunction with the State of Michigan on the assumption, or
the--you know, the idea that this would be used as the amended
plat. So, this is kind of the preliminary stages of that. We
would have to set irons, set monuments...
Q In order to what?
A In order to actually, physically depict on the ground where the
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corner locations are and for me to sign it. I didn’t really set
any property corners here yet, so I didn’t--I haven’t signed
anything.
Q Thank you. You can resume your seat. We’ve had marked and
introduced as an exhibit, Exhibit B-3, which is a photograph.
Do you have that in front of you, sir?
A Yes, I do.
Q Okay.
THE COURT: That’s exhibit what?
MR. HYRNS: B-3, your Honor.
BY MR. HYRNS:
Q Now, in the--in the foreground there is a dog’s head, is the
correct?
A That’s correct.
Q And then going towards the lake as depicted on that picture
there are three stakes with orange flags on the top, is that
correct?
A That’s correct.
Q And can you testify as to whether or not you placed those
stakes?
A I personally did not place those stakes. The survey crew that I
had working on the job that day placed the stakes.
Q Okay. But it’s-- And-- And you relied on the placement of those
stakes, or you supervised the placement of those stakes?
A That’s correct.
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Q Okay. And if you could, sir, what do those stakes represent;
and if you could start the one from the shed, which is on the
right-hand side of that picture, and then work towards the left,
or the center of the picture?
A I believe the right-hand--the stake on the right-hand side would
be the easterly edge of the easement as depicted in the 1968
drawing; the one going left, the one that would be in the
middle, would be the westerly edge of that easement; and then, I
believe the stake on the left-hand side would be the westerly
edge of the easement per the plat.
Q Did you also refer--review the 1967 corrected deed of easement?
A That would be the liber--liber 169, page 22--
Q I will--
A --or--
Q --define that for you here in just a second.
A Okay.
Q Liber 183, page 42.
A Is that referred to as--in an exhibit?
Q It is. It’s referred to as Exhibit I.
A Yes, I reviewed that.
Q And do you have an opinion as to how the corrected deed of
easement relates to the 1968 description?
A I believe the description describe the same piece of property.
Q Thank you.
(At 12:00 p.m., B-5 marked)
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BY MR. HYRNS:
Q Well, what--show you what has been marked as Defendant’s
proposed Exhibit B-5.
MR. HYRNS: With your--permission of the Court and as
a witness, your Honor, I care--I wanna withdraw the B-5 that I
handed to him and replace it with a B-5, which is the original
photograph.
(At 12:01 p.m., B-5 marked)
BY MR. HYRNS:
Q Showing you what has been marked as Defendant’s proposed Exhibit
B-5, is that a photograph, sir?
A Yes.
Q Does it-- Does it-- Can-- Is there a survey flag depicted in
that drawing?
A Yes.
Q Do you recognize the location of that survey flag?
A It-- It appears that their lath, but looks like there’s
something written on it. I can’t quite tell exactly what they
were placed there for.
Q Do you know whether or not your crew or you supervised a crew in
placement of that survey stake?
A Yeah. I believe it was at the same time these other stakes were
placed and it looks like that these stakes might have been
placed in the location of the--where the 1968 easement actually,
physically was located on the ground.
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Q Okay. And when you say, on the ground, is it towards the--what
would be the front of the property or the back of the property
A That--
Q --towards the creek?
A That would be, towards the rear of the property near the--the
edge of the hill.
Q And in paragraph--in--in B-5 there’s also a fence of some sort
there, is that correct?
A Yes.
Q Do you recall that fence being on site at the Wormuth property?
A Yes.
Q So the flag then--the survey flag, if it is your survey flag, is
a survey stake and it would be to the east of the fence?
A Easterly side of the fence, yes.
Q Thank you.
MR. HYRNS: I move for admission of Defendant’s B-5,
your Honor.
THE COURT: Any objection?
MR. KNOX: No objection, your Honor.
THE COURT: B-5 is received.
(At 12:04 p.m., B-5 admitted)
BY MR. HYRNS:
Q Just for clarity, you indicated that you are not a disinterested
party but a neutral party, is that correct?
A Yes.
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Q And just for these lots here, 24, 25 and 26, how many times do
you think that you’ve been out there surveying these three
property sites?
A Like I said, maybe a dozen times.
Q I’m showing you what was marked as Exhibit Number W; have you
ever seen that exhibit before?
A No.
Q Did you-- Did your organization prepare that exhibit?
A No.
Q Do you-- Would you have any input in preparation of that
exhibit?
A No.
Q Is-- Can you tell from that exhibit as to the date of that
survey, sir?
A Approximately, yeah. Just by the license number of the
registered land surveyor, 22436.
Q Who is that registered land surveyor?
A Ron Harner.
MR. HYRNS: No further questions, your Honor. Thank
you.
THE COURT: Okay, anything else for Mr. Lieberg?
MR. KNOX: (No verbal response.
THE COURT: Okay, you may step down. Thank you.
(At 12:06 p.m., witness stepped down)
THE COURT: Mr. Knox?
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MR. KNOX: Judge, those are all of the witnesses we
have on the modification of the plat issue.
THE COURT: Okay. We’ll take a break for lunch.
We’ll try to start probably about one o’clock. It usually
doesn’t happen quite at one but we’ll shoot for--shoot--try to
get back by one and we’ll probably get started about 1:15.
Okay, thank you.
THE COURT OFFICER: All rise, please.
(At 12:06 p.m., court recessed)
(At 1:11 p.m., court resumed)
THE COURT: Okay, Mr. Hyrns.
MR. HYRNS: You want me to proceed, your Honor?
THE COURT: Please.
MR. HYRNS: Thank you. Ron Watson.
THE COURT OFFICER: Raise your right hand, please. Do
you solemnly swear or affirm the testimony you’re about to give
in the matter now pending before the Court shall be the truth,
the whole truth, and nothing but the truth, so--
MR. WATSON: I--
THE COURT OFFICER: --help you God?
MR. WATSON: I do.
THE COURT OFFICER: Thank you. You may be seated.
RONALD G. WATSON
called by the Defense at 1:11 p.m., sworn by the bailiff,
testified:
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DIRECT EXAMINATION
BY MR. HYRNS:
Q For the record, please, state your full name and spell your last
name.
A It’s Ronald G. Watson: W-A-T-S-O-N.
Q Current address, Mr. Watson?
A I have property at 1171 Shore Drive, which is my summer house,
and, I have a house in Naperville, Illinois.
Q Do you know which plat you currently reside in--in--
A That’s-- It’s just 4 houses--
Q (Unintelligible)?
A Its 4 houses down from the easement we’re talking about.
Q Okay. You can identify it by lot number, maybe?
A Yeah. I think its Lot 17, I think. If I could approach here?
Q Sure.
MR. KNOX: Would he need the microphone?
THE WITNESS: It’s-- Yeah, it’s Lot--
BY MR. HYRNS:
Q Hold on.
A The-- My lot is Lot 17 and its 4 lots down from the easement.
Q Can you point to it again, please, on the map?
A It’s right...
Q Thank you.
THE COURT: It says, Lot 17 in Subdivision 5?
THE WITNESS: Five, yes.
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BY MR. HYRNS:
Q Just lay it there. And when you purchased in Sunset Shores, was
there a residence on that property?
A No. I bought the lot in 1982 and--and I built a house in 1985.
Q What was your relationship to the property then between 1982 and
1985?
A I had a boat in the harbor, okay, and I would--I would bring my
down to the beach at the easement, use the easement, and,
actually, I--we parked some cars, usually, on my empty lot from
’82 to ’85. And so, I did actually use the easement from ’82 to
’85, even prior to owning--owning a hou--home, okay. Once we
built the home, we used the easement on a--on a very regular
basis.
Q Do you have any rights to the beach other than through the--the
easement and the community beach?
A My-- I have a warranty deed that--that says my--that easement is
deeded to my lot. And that was a primary reason why I bought
that lot, is, part of buying that lot we checked out the
easement, made sure that it was properly surveyed, and--and I
used a lawyer by the name of Terry Redamak and--and--to--to
close on the purchase--
Q Okay.
A --of that lot.
Q Now, before I move too much further, can you state what your
occupation is?
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A Yeah. I’m retired now. But I worked for 40 years for ATT Dale
Labs. I’m a mechanical engineer, degreed, Bachelors and
Masters, and I do some professional consulting right now, but,
primarily retired.
Q Okay. And how long have you been retired now?
A I retired from--after 40 years with Dale Labs--
(unintelligible)--Lucent in December of 2008.
Q And, how much of the summer, then, do you--do you spend in
Sunset Shores?
A I’m over there in--fulltime from March through--through
November. And my wife and my family, who live in--in Illinois -
my wife lives both places, and my--my family lives in Illinois,
and they’re at my house very frequently during the summer. I
think we-- So, needless to say, we’ve used this easement a lot.
Q Now, you indicated that you purchased the property, in part,
because you had some deeded easement rights to access Lake
Michigan?
A Right. Right.
Q And what other reasons were important for you in buying the lot?
A Well, lake view, that--you know, Lake Michigan boating. That--
That was my primary--you know, my--my primary reason for liking
New Buffalo. So, that’s we--we wanted to be there. I had a--
My wife had an aunt that lived up the--on--up the lake a bit--up
the street a bit, you know, on the lake, and so, we--we re--from
1975 until 1982, we spent time at that particular house as well,
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and we enjoyed some of the easements on both far end and the
other end. So, I’ve been boating and living in the area,
really, since 1975.
Q Now, did you ever have an occasion to look at to purchase Lots
25 and 26, which is currently owned by the Wormuths?
A Yeah. In fact, that house I mentioned earlier, my wife’s aunt,
had sold it and--and was moving to California, and I--that house
went on the market. So she looked at it, and then we looked at
it because it did have a nice--better lake view. And when we
went to look at that--that particular lot and house, the first
thing that the realtor told us was--
MR. KNOX: Objection--
THE WITNESS: --this
MR. KNOX: --hearsay.
THE WITNESS: I’m sorry?
BY MR. HYRNS:
Q There’s a hearsay objection, which means, is that--
MR. HYRNS: Go ahead.
THE WITNESS: Okay.
THE COURT: Well, just, you can’t answer what--you
can’t say what the--
THE WITNESS: Oh, okay.
THE COURT: --what the--
THE WITNESS: I’m sorry.
THE COURT: --realtor said--
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THE WITNESS: All right.
THE COURT: --at this point.
THE WITNESS: When we looked at-- When we looked at
the lot and looked at the house, they made it very clear there
was an easement--
MR. KNOX: Objection, hearsay.
THE WITNESS: Okay. They made it very clear there was
an easement and--
MR. KNOX: Objection--
THE WITNESS: --no lake--
MR. KNOX: --hearsay.
THE COURT: Just a second. You wanna respond?
MR. HYRNS: Let me rephrase the question.
THE COURT: Okay.
BY MR. HYRNS:
Q Did you end up purchasing the lot?
A I did not.
Q And is there a reason that you didn’t purchase--
MR. KNOX: Objection, relevance.
THE COURT: Okay, Mr. Hyrns.
MR. HYRNS: I believe it is relevant as to what--the
reason that he didn’t buy Lots 25 and 26.
THE COURT: Okay. And can you give me the reason that
you think it’s relevant?
MR. HYRNS: Well, I believe it’s relevant because
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there were some dedicated easements that were--
THE COURT: Okay, 25 and 26 is--?
MR. HYRNS: The Wormuth property.
THE COURT: Okay.
MR. HYRNS: And it’s relevant because Mr. Wormuth
indicated that when he purchased the property there was no
indication of any such easements.
MR. KNOX: Your Honor, it’s not relevant because at
issue, at least at this stage of the trial, is whether there is
reasonable objection to the proposed amendment to the
subdivision plat. A decision to buy or not to buy, whenever it
occurred, and we don’t know when that is, is not relevant to
whether it’s a reasonable objection or not.
MR. HYRNS: Your Honor, I believe it’s based on
testimony given by Mr. Wormuth so it is relevant as to show
what--what the condition of the property was at the time that
Mr. Wormuth purchased it.
THE COURT: And, Mister--
MR. KNOX: Mr. Wormuth’s--
THE COURT: --Knox?
MR. KNOX: --testimony was to provide the Court with
some context as to why he wanted to have the plat redrawn to
reflect the present location of the lot. A decision not to buy
property - And, again, we don’t even know when it was. We know
that it was some point prior to the early 1980s. A decision not
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to buy property at some point prior to the early 1980s has
nothing to do with whether the amendment of the plat is
reasonable or not reasonable.
THE COURT: Well, the easement is already in evidence.
So, whether there is or is not an easement or--the hearsay part
of it, is not meaningful because it’s already it’s already an
exhibit in evidence. Whether it had any relationship to Mr.
Watson’s decision not to buy the property, I--I’m not grasping
the relevance of that, Mr. Hyrns.
MR. HYRNS: I’ll-- I’ll withdraw, your Honor.
THE COURT: Okay.
BY MR. HYNRS:
Q You did look at the property?
A Yes.
Q You made a decision not to purchase?
A Yeah. And that--that was in the summer of ’94, okay. It was
not in the 80s, okay.
Q So, you knew of the condition then of the property also then
when you viewed it?
A Yes.
Q Okay. Now, you mentioned that you were a boater and that you
would take a boat then?
A Yes. So we-- I used this easement from 1982, okay, until
present. When I built the house in ’85, we--there--there was--
The pictures that you’re seeing, judge, are pictures that are
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post 1995. There was-- There was no trees, no bushes, no shed,
okay; a clear shot to the lake, okay. You could come down Shore
Drive and you’d see a 20-foot panoramic view of Lake Michigan.
Q I’m gonna stop you there, Mister--
A Sure.
Q --Watson. Showing you what has been marked as, Exhibit Number
P--
A Right. Yes.
Q --can you help visualize for me and the Court--
A Sure. This-- This-- These things here, judge, these trees,
these bushes, that fence, and to the right of this is a shed,
none of that existed. I would back a truck down that in the
early 80s and I smelt fished, which required me to take a lot of
heavy cement blocks and pole to go out into the lake, to--to
raise a--raise a lever to go smelt fishing. And-- And then,
probably 9--not probably, 19-- I bought a sailboat in 1990.
It’s a sailboat that was on a trailer but you could carry it if
you had two people. I would take the sailboat down this
easement and, right behind these trees, there’s a corner here
where there’s a--now a plastic fence, or a plastic fence with a
wire around it with some railroad ties, I would put the sailboat
on that corner railroad ties and slide it down in--down into to
the--onto the beach. Going this way would be too dangerous
because there’s a washout down here. And this is actually a--a
runoff area that you’ll see later. And-- And so, this is the
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high ground, and that’s the ground that I used from 1982 till
1995 as these--these things started encroaching on that
easement.
Q I’m gonna show you another picture, Mr. Watson, that’s Exhibit
B-3.
A Yeah. Okay.
Q Now, can you use that picture and also describe whether or not
those items were in the--
A Right. Some-- Sometimes in 1995 this shed was put in. And
within--within a few weeks of that shed put in, I visited city
hall and told them that that shed was on an easement and I got--
I got no--no response from city hall. And you can see, also,
there’s a pipe coming out here, judge. That was a-- That’s a
plastic pipe where the effluent from their swimming pool came
out, and I suspect that’s what pretty much damaged these--these
bushes right here, because we’ve got other pictures and this was
a big wide area when they would run this--run this effluent, or
whatever it was that was coming out of there conditioning for
the swimming pool. This fence was not there. These trees were
not there.
THE COURT: You say they were not there when?
THE WITNESS: They were not there in 19--the end of
1994; and then, once--once these got put in, we--we were forced
to move to the side of the easement. If-- If you wanted to go
to the lake, that’s all you could do.
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BY MR. HYRNS:
Q Mr. Watson, you’ve been involved in this litigation from the
very beginning?
A That’s right.
Q Approximately 2007?
A And-- And-- Yeah.
Q And before?
A And before. And before, right.
Q Okay. And you’ve had the opportunity to review the proposed
consent judgment and the proposed re-platting of Sunset Shores
Number 5?
A I have, yes.
Q And you are aware of where the proposed easement is--is drawn
and is being recommended?
A Very familiar with the drawings and what was stated earlier in
the--in the hearing here.
Q And what is--what is your concerns or objections to the re-
platting of Sunset Shores Number 5?
A I have a safety and usability concern. My wife couldn’t be here
today, but, on September the 3rd - it was in a letter that I’d
given you a couple weeks ago, or a week and a half ago, I guess,
judge - she actually fell trying to go down--trying to come back
up where the easement has been moved to. This is-- This is a
runoff area, okay. When it rains heavy, water comes down there.
And twice this summer, I have built up what I would try to call
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steps, that--that would be built with sand and--and some soil
and some rocks, and after a good rain, they’re just washed out.
And the rocks are usually rounded, and you step on them and
you’re gonna fall. My wife’s accident was witnessed by a number
of people. She never broke anything so she’s okay. But, my
concern is, is that, it’s only gonna get worse as more and more
construction get done around here; more water’s gonna run-off
here. The intent in my mind was this walkway was intended,
partly, for run-off of--
MR. KNOX: Objection.
THE WITNESS: --water.
MR. KNOX: This calls for speculation.
MR. HYRNS: I think its laymen’s--
THE COURT: Well--
THE WITNESS: Okay.
MR. HYRNS: --opinion.
THE COURT: --it’s his opinion.
THE WITNESS: Yeah, my opinion. I’m a-- And I’m an
engineer--
THE COURT: Just a--
THE WITNESS: --by the way.
THE COURT: Just a second. Just a second. It’s his
opinion based on his reviewing that, is wha--is what I
understand his testimony.
MR. KNOX: Based on reviewing what?
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THE WITNESS: Based on using this walkway for 30--30
plus years, this walkway is where the water runs to Lake
Michigan. And, if you walk down that walkway, okay, you get to
the end of it near--near where it traverses to the lake and--it
is very unsafe. And if you try to put a set of steps in there,
you don’t have to worry about the lake washing it out a good
rain will wash it out, coming the other way, okay. The-- What
we had before, judge, was a flat area--
MR. KNOX: Well, I’m--
THE WITNESS: --higher--
MR. KNOX: --I’m--
THE WITNESS: --ground--
MR. KNOX: My-- I was trying to lay my--you know,
trying to hear what he had to say in terms of my objection.
The purpose of that walkway, whether it for run--
runoff or not, there’s been no indication he has any knowledge
concerning the purpose of the walkway, whether it was for
runoff, whether it was for whatever.
THE COURT: Well, I think what his testimony is, that
that is what happens--
THE WITNESS: Yeah.
THE COURT: --is that--
THE WITNESS: That--
THE COURT: --am I correct?
THE WITNESS: The walkway-- The walkway acts as a
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conduit for water to go down. And I’m surprise the city didn’t
take more--more engineering approach to this when they took a
good look at it. This easement is on higher ground, okay, and
when we went down that--
BY MR. HYRNS:
Q I’ve got--
A --easement--
Q I’m gonna stop you there. When you say, this easement, what
easement are you--
A Our-- The--
Q --referring to?
A The-- The original easement, that was shown in your drawing with
the squares, okay; our easement, the easement that was--that
runs from here over to here.
THE COURT: Okay, just a second.
BY MR. HYRNS:
Q If you can, you have the exhibit book there, are you referring
to Exhibit L?
A Yes.
Q Okay.
A The original easement is depicted in a 1968--
Q Okay. I--
A --document.
Q --apologize for interrupting.
A That’s okay. It-- It’s on higher ground. It went down-- And
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prior to the Wormuths even living there, at the end of that
easement was a set of steps to get down to the beach, which were
a much safer arrangement. And for the last 15 years--10 you
know, 10 to 15 years, we--each year we progressively got moved
to the west, into what we have now, which is what I consider
something that is much less useable and definitely much less
safe. And I think that those are two things that--that you look
at in terms of whether or not you make a change by the land
division act is, whether or not there is a concern about
usability and safety, you know, for the public and--and for the
property owners. And I’m very seriously concerned about it.
Q Thank you. Do you have any other concerns other than those two,
the--the safety--
A Yeah. Well, I’m--I’m--
Q --and access--
A --concerned that it took us till 2005 to--to--to draw this
matter to a head. And the--the natural progression of the
pushing us off this easement is a con--a concern of mine that--
that--that we spent-– Mr. Knox was talking about 2001, 2002,
2003. There was-- There was attempts to work to get this--these
things done--moved and they were met with resistance and
interference, okay, and threats of lawsuits. The city wouldn’t
do anything about the--about the shed, and--and, you know. So--
But-- But, legally, I regret we didn’t make action even soon
than we did, but, I’m glad we made it in time that--I think in
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time that would keep any adverse possession claim from being--
being valid.
Q Thank you, Mr. Watson.
MR. HYRNS: No further questions, your Honor.
You wanna just hold on to that?
THE WITNESS: Yep.
CROSS-EXAMINATION
BY MR. KNOX:
Q Okay, Mr. Watson, have you ever spoken with Mr. Wormuth?
A Well, I think you showed the picture earlier of a party for a
son when they were--they were 21--it was 21st birthday. Two days
before that was my daughter’s 21st birthday and Mrs. Wormuth came
over and they saw that we had a lot of white tables and chairs--
Q Let me interrupt you and let me ask you to answer the question
that I asked. And the question was: Have you ever talked with
Mr. Wormuth?
A I think I’ve had occasion to say hi to him as he walked by my
house or--or maybe at the yacht club or maybe--
Q Okay.
A --in his boat, okay. But--
Q Okay.
A But no, I--
Q Good.
A --I’ve never talked to Mr. Wormuth directly about this.
Q All right. So-- So when you just said you had all of these
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efforts to resolve this issue, from ’95 on, and you were met
with lawsuits, well, it wasn’t Mr. Wormuth that threatened the
lawsuit, correct?
A No. No. It was-- It was his wife.
Q Okay. And how--how frequently did you discuss this with Mrs.
Wormuth?
A Only when there’d be a--a case when there would be an
interference discussion in--in the right--in the easement--
Q Okay.
A --okay.
Q Take a look, if you would, at Exhibit Number--Exhibit letter,
let’s see, it’s a photograph, R, okay?
A Yep.
Q Now, you said you used the--as I understood what you were
saying, you said you used the--essentially, what was the ’68
Judgment, you used that from the early 80s up to 1995--
A Um-hum.
Q --correct?
A Um-hum.
Q Which is when-- I’m sorry. You need to say, yes or no. A nod
of the head or um-hum or--
A Can--
Q --um-um--
A --you repeat the question?
Q Sure. Yeah. The-- The area that’s depicted in the ’68
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Judgment, I think you said you used that from the early 80s up
to 1995--
A That’s--
Q --correct?
A That’s right. Yeah.
Q And--
A Ninety--
Q --it was--
A ’94.
Q --1995 when the Wormuth’s shed went in and the fence went in,
and when the--the pool went in that blocked it, correct?
A Well, I don’t--the pool, I don’t think had anything to do with
blocking anything.
Q But up to that point in 1995 you had free access to use that, in
your opinion?
A Yes.
Q Okay. Would it surprise you to know that Mr. Burt Langer is the
individual that sold the property to the Wormuths; would it
surprise you to know that Mr. Langer will testify that the
shrubbery that was located next to that--that building was in
place when he bought the prop--property, and that was 1992?
A Yeah, that that shrubbery wa-- was--was smaller and you could go
right around shrubbery to--to--to access the--the wider
easement.
Q Okay. So you went around the shrubbery?
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A The-- The-- The little bit of shrubbery that--that was killed by
some chemical, as I think what Mr. Wormuth said, some chemical
killed some of his shrubbery, is that the one you’re talking of?
Q That’s right.
A Yeah. Yeah.
Q Yeah.
A Uh-huh. That-- That shrubbery was much smaller and you could--
you could--you could go around that, okay. And I don’t-- And I
don’t recall it being big enough to even block anything.
Q Okay, take a look at Exhibit N. Mr. Wormuth testified that the
shrubbery that’s shown in Exhibit N, right there, that that’s
the condition of the shrubbery when they bought the property in
1994. But, it’s your testimony that in 1994, you could go
around that?
A Yeah, you could go around that.
Q Okay. Now, were there railroad ties that bounded the walkway on
the side of Mr. Wormuth’s property?
A There were some railroad ties in the easement.
Q In the-- Now, we need to be clear here. The railroad ties
actually were bounding the area that was used to access the
beach on the westerly si--on the easterly side--
A Why don’t you--
Q --correct?
A Why don’t you point to this drawing where the railroad ties are?
Q No, I’m asking you. There were railroad ties on the walkway, on
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the ground.
A There were railroad ties towards the end of the walkway, at the
end of the property, and that’s--those railroad ties are the
railroad ties that we used to, I--as I reported before, I slid
my boat off those railroad ties - my sailboat.
Q Okay. Now, those railroad ties did not impede your ability to
use the--the walkway, correct?
A Well, it--there--we were able to go over them.
Q Okay. Take a look at Exhibit S, and in particular, the
photograph at the top of Exhibit S, which is 1994, do you see
that?
A Um-hum.
Q Is it your testimony to the Court that in--as late as 1995 you
were able to take your sailboat pass those shrubs – we see the
two evergreens and then you see the shrubs in the back there of
19-- Let’s be clear. Let me hold this up for you so--
A Okay.
Q --so the Court is clear on what we’re talking about. This is
December 1994, correct?
A Yep.
Q On-- Are you referring to notes, sir?
A I-- I was just checking to see when I sold our sailboat. I
sold--
Q Okay.
A --it in ’96.
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Q Okay. Well, let me ask you to put your notes down.
A Why?
Q Because I would like you to, answer the--the testimony (sic)
from--from memory.
THE COURT: Okay. Go ahead.
BY MR. KNOX:
Q In 1994 there’s a shrub there, correct?
A Um-hum.
Q There’s a shrub there, correct?
A In December of ’94, yeah--
Q Okay.
A --those--
Q There’s a shrub--
A --shrubs were--
Q A shrub there, correct?
A Yeah. They were probably put in in November of 1994.
Q Oh, you--probably put in in November of 1994.
A Uh-huh.
Q Did you see someone putting shrubs in there in November of 1994?
A Did you?
Q Sir, my question is, did you see someone putting shrubs in there
in--
A I--
Q --November of--
A I testified that I used a sailboat--
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MR. KNOX: Your Honor, at this point I would ask--
THE WITNESS: Ask me--
MR. KNOX: --that--
THE WITNESS: --the question.
THE COURT: Okay, whoa--whoa--
THE WITNESS: One more--
THE COURT: Whoa.
MR. KNOX: It would--
THE COURT: Hold--
THE WITNESS: --question.
THE COURT: --on a second.
MR. KNOX: --facilitate the--
THE COURT: Okay, just a--
MR. KNOX: --examination--
THE COURT: --sec-- Whoa. Okay, we’re gonna go one at
a--one at a time. You’re both interrupting each other. So, ask
the question, ask it completely, Mr. Watson, do not interrupt--
THE WITNESS: I won’t.
THE COURT: --and don’t start to answer the question
until it’s been completely answered--asked and then you’ll be
given a full opportunity--
THE WITNESS: Okay.
THE COURT: --to answer. Now, so far as your notes
are concerned, if you do have need to look at your notes, you
can do that, but it’s only if--if you have--
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THE WITNESS: I don’t-- I don’t need--
THE COURT: --need to refer to them.
THE WITNESS: I don’t need ‘em. Go ahead.
BY MR. KNOX:
Q Okay. Did you see anyone planting shrubs in November of 1994?
A I assume you’re talking about at that location?
Q Yes.
A Yeah. No.
Q Okay. Did you see anyone planting shrubs in October of 1994?
A I can’t recall.
Q Okay. So, when you said probably someone planted those shrubs
in November of 1994, now, that would be an exaggeration, would
you at least agree with that?
A Possibly.
Q Okay. All right. Now-- But we know that us--of December of
1994 the shrubs were in place, correct?
A Yes.
Q And in 1995 you testified that you took your boat over the edge
of the railroad ties and down off through where those shrubs
were, correct?
A I believe I testified that I used that easement from ’90 to ’94
with my sailboat, not ’95--
Q Okay.
A --’94, because, in ’95 I couldn’t really take my sailboat down
there anymore because of what happened in the front of this
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easement, okay. So it was ’94 about when I quit taking--taking
it down.
Q Okay. And so, ’94 you were able to take it over this edge?
A About ‘94, yeah.
Q Okay. Now-- And you said you also drove over the railroad ties,
correct?
A (No verbal response)
Q So you took your boat over those railroad ties, which happen to
drop down off the edge of that, correct?
A Right. Yeah. You put--
Q Okay.
A --the trailer there and I just tilt it with the boat and let it
slide down.
Q The boat-- So you slid the boat down...
A Over, there’s maybe a 4 feet or so where the railroad ties back
up to the--to the lake.
Q Okay.
A To the lake surface.
Q So you didn’t take your trailer down there, you just--
A No.
Q --dumped the boat?
A Yeah. Right.
Q Is there any reason you didn’t use the area that’s depicted in
the photographs of July 1995--
MR. DEFRANCESCO: What exhibit number--
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MR. KNOX: I’m--
MR. DEFRANCESCO: --is that?
MR. KNOX: I’m sorry. Exhibit O.
BY MR. KNOX:
Q --that are shown in July of 1995, Exhibit O?
A Yep, probably used that close to the road. As-- The further you
get back, this gets--this gets not too usable as you get
towards--towards the lake. So you moved it ov--I moved--I would
move it over to the side. That’s why I told you I went around
those bushes. You go around the bushes, go to the right to the
high ground, you go down and that’s where I--I put the sailboat
in.
Q Okay. So you were able to use this area up here toward the
road, correct?
A To get in.
Q Okay. So, now we’re back up again. When you said that the
shrubbery that appeared in Exhibit N, so that actually didn’t
block your--your path, correct?
A That shrubbery is practically out onto the easement on--
Q Talk--
A --the road.
Q Talking--
A --okay.
Q --’95.
A Right.
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Q That--
A Right.
Q --didn’t block your path, did it?
A I was able to around it and sneak in behind it.
Q Okay. So you-- Let’s take a look at ’95, whether you needed to
sneak in behind it or not. Okay, top or left--top left-hand
corner, Exhibit O--
A Um-hum.
Q --do you see that shrubbery in Exhibit O?
A Be off to the left here somewhere.
Q Okay. Now there-- But there’s a straight shot there; wouldn’t
you agree that’s a straight shot?
A As I said, you only can go down so far then you have to go to
the right - you have to go to the west.
Q Okay. So, in terms of up near the road, unobstructed path,
correct?
A Um-hum. In ’95 it was--it was much wider than that. In ’92-
’91, it was--there was--there was no--there was no shed, no
trees and a much wider shot to get to through there.
Q Okay, ’95 there is shed and there is trees, correct?
A The shed-- Where’s the shed at? I take it that--
Q Its not-- Well, you can’t see it because--
A Oh.
Q --this is--
A I--
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Q --a picture of the--of the access point of the walkway.
A Well, how can I tell if there’s a shed in a picture that doesn’t
show a shed?
Q That’s a-- That’s an excellent point. Take a pic-- Take a look
at the bottom left-hand corner of Exhibit O; do you see a shed?
A Is that the shed?
Q My question is: Do you see a shed?
A I don’t see a shed.
Q Okay. Thank you. Okay, let’s take a look now at the picture,
top right-hand corner, Exhibit O. If you look right there you
see the railroad ties, correct?
A That-- Is that the fence there?
Q Do you see in Exhibit O, top right-hand corner - you see the
seawall there, to the right of--in the photograph, to the right
of that are railroad ties, correct?
A I-- I’m sorry if I didn’t-- On a sea-- Oh, you’re--that’s the
back, okay. You’re taking... Okay. That’s a-- That’s a pretty
touch picture to look at. That’s-- Because you’re--you’re
going... That’s a big gap between where that person is standing
around the easement and going on--
Q Are those or are those not railroad ties?
A Yeah, those are railroad ties.
Q Okay. Now, those railroad ties look to have a drop-off how many
feet?
A Well, you can’t tell from--from that picture.
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Q Pretty big doesn’t it look?
A No, no. You-- Are you kidding me?
Q Okay. Well, let me ask you this. You drop--
A You-- Do you expect--
Q --your--
A --me to answer that question--
THE COURT: Well, whoa, whoa--
THE WITNESS: Jus-- You-- You know--
THE COURT: Okay, whoa--
THE WITNESS: --what, it just doesn’t--
THE COURT: Whoa.
THE WITNESS: Okay.
THE COURT: We’re not gonna get into this--
THE WITNESS: All right.
THE COURT: --any further.
THE WITNESS: Okay, I can’t tell from your picture
where the drop-off is. From my experience, the drop-off was a
little bit above my waist; and, it would depend upon where the
sand was on the beach.
BY MR. WORMUTH:
Q Okay. So you-- All right. So you dropped your boat an area a
little bit above your waist down off--
A Um-hum.
Q --of the edge?
A Um-hum.
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Q As oppose to, progressing in the open area, right there,
correct?
A Yeah. I-- I--
Q You just need answer
A Okay.
Q --my question.
A All right. I used the area from 1990 until 1994. You’re
showing pictures of ’95, okay. And I quit using that are in ’95
‘cause it wasn’t any point getting stuck in the--in the
easement.
Q Okay.
A He planted trees and bushes there.
Q Well, the railroad ties were there before--
A And I used the--
Q --’95--
A --the railroad ties before ’95.
Q --but then that’s-- So-- And so, before ’95, you dumped your
boat off at the edge of those railroad ties, correct?
A Actually, there’s an area to the right of it. The-- The--
(unintelligible)--was about 5 feet wide and you put it over
there and you slide it off the railroad ties, yes.
Q As opposed to going down that open area, correct?
A That open area, sir, is a bunch of rocks, that just run down to
the beach. And I--I would not wanna carry a suitcase down
there, let alone a sailboat. That’s where my wife fell two
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weeks ago.
Q There were stairs in there at one point
A Um-hum.
Q --were there not?
A Um-hum. They got washed out, and not by the lake. They got
washed out by a storm from the--from the mainland.
Q Would you agree that it takes a certain amount of maintenance to
maintain an easement?
A Yes.
Q Did you ever perform any maintenance on that?
A I certainly have.
Q Did you put stairs in?
A I have help support--put stairs in. And, as I testified
earlier, I tried to put-- For the last 5 years, okay, we’ve
been--we have been barred from doing maintenance, by a lawsuit I
think you help file, that says we couldn’t make any changes
down--
Q And that--
A --there.
Q Well, to be clear, the Court did--this judge didn’t tell you not
to maintain it, did he?
A Well, we were told we couldn’t maintain it. We--
Q This judge--
A --sent the--
Q --didn’t tell--
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A --landscaper--
Q --you--
A --there and the landscaper was told to go away by one of the
Wormuths.
Q Well, the judge--this judge didn’t tell you not to maintain it,
did he?
A Well, how long has this judge had this case?
Q Did Judge Tolen tell you not to maintain it?
A Well, I don’t know where the court order came from but somebody
told us not to maintain it, and that was part of my concern as
well. The lack of maintenance of this of this thing was caused
by, not--not by us, but we were told we couldn’t maintain it.
Q Okay. Now, let’s take a look in ’95. You said that you were
able to access that ’68 Judgment area, um--um--by--by going
around the bush in the front of the house and then swinging back
over onto the ’68 Judgment area, correct?
A And keep in mind there’s no--there was no--there was nothing
behind those bushes, okay. There was no--no shed, right--
Q Was there--
A --straight
Q --any-- Was there any shrubbery, anything like that?
A If there were shrubs, they were shrubs you could walk over.
Q Okay. Well, let’s take a look here at... This is a 1995
photograph again. That shows the area bordering--
THE COURT: What’s that-- That’s which one?
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MR. WORMUTH: I’m sorry. Exhibit O.
BY MR. WORMUTH:
Q That shows the area along the side of the Wormuth’s yard, and
this is the walkway that was used, correct?
A Um-hum.
Q You can see shrubs in that photograph, can’t you, see
A Certainly.
Q --them right there?
A Certainly.
Q You see them right there, right?
A Um-hum.
Q And you can see them right there, the view going down to the
beach.
A Yeah. They were added right when they added the--the--the shed.
Did you know that shrubs, when you plant them in sand, how fast
they grow? Across the street from my house they put in 7 trees
that were 12-feet high and now they’re 22-feet high and it’s
only been 3 years, and they’re the similar shrubs that were put
in right down the... So it grows fast.
Q Okay. Would you agree that with proper maintenance the walkway,
as it presently exists, is useable?
A That’s-- I’d have to clarify your statement. If you’re saying
where we were pushed over to walk down that area that you show
on the picture, I would say that it’s not useable, and it has
not been useable, and it’s not safe.
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Q Okay. Well, let me ask you this. Would you ra-- When you say
pushed over to the area that it is now, would it satisfy your
concerns if we used the walkway as it exists in the plat, the
original plat; would that satisfy your concerns?
A Well, what--what we need in the area--
Q No, my question, sir, was, would that satisfy your concerns if
you used the walkway as it existed in the original plat?
A With the easement and the walkway, yes, because then we’d have
high ground to walk on and the water can run down the--the
walkway.
Q Well, the walkway per plat, would you agree that that’s--that--
You said you got pushed over and it worked fine. Would you
agree that that would be satisfactory?
A It-- It-- You mean would it--showing what exist today, right, is
that what you’re saying?
Q No. The walkway as it--as it exists in the plat, okay, there
this has been platted. That’s what you were originally granted.
Are you saying that’s not satisfactory?
A No, what we--we have that walkway and we have that easement.
Q Okay. So you got two?
A That’s right.
Q Okay. So your belief is you should be able to use the walkway
and the easement both?
A Certainly to be safe, you--you--you need to have a--a high area
to walk on and you need a lo--another area where the water is
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gonna run down. You can’t have them both. You can’t-- You
shouldn’t put an easement through a swell--or, through a ravine,
it’ll be dangerous for anybody to use it. And that’s what we
got right now.
Q Did your wife seek any medical treatment?
A I don’t know if she got an x-ray or not. But, you know, I have
pictures of what happened to her. I can’t bring my cell phone
in here but I--I got ‘em.
Q How many times have you used that walkway in the last year?
A In the last year..., 75, 100.
Q Seventy-five, a hundred times?
A Uh-huh.
Q Do you have grandkids?
A I do.
Q Do your ki--grandkids use the walkway?
A Yeah. The grandkids go down it by--by being carried. They’re
only one-and-a-half years old. And they used it every weekend
in July and August and la--weekend before last. My wife uses
the beach regularly, more than I do. But-- But I--I use the
beach-- We are a big user of the beach and easement - big user.
Q How many days-- How many times a week does your wife use the
beach--use the easement, rather, to get to the walkway and to
the beach?
A It’s the only way to get to the beach. Well, I’d say she
probably uses it, on a weekend, she probably does it 2 or 3
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times in the--during the week; maybe twice during the week, 3
times during the week.
Q Two to three times during the week, two or three times during
the--
A Weekend.
Q --weekend or week-- Is it--
A And-- And I wan--
Q --fair to say--
A And a lot more if there’s--if there’s people there, um-hum.
Q Okay. Fair to say she uses it 6 times--6 times in a--a week?
A That’s probably about right.
Q And you use it frequently?
A Not as much as her. But I use it, yeah; probably 3 times a week
for me.
Q Do you have children?
A My daughter uses it and--and her--her--my son-in-law uses it.
Q How--
A And their--
Q --frequent--
A --friends use it when they’re here.
Q How frequently do they use it?
A When-- When they’re here, they probably use it a couple times a
day, and they might be here 6 or 7 weekends out of the year.
Q So that’s pretty frequent.
A It’s pretty frequent, yeah.
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Q And they feel comfortable in carrying their children down that
walkway--
A Not--
Q --correct?
A --at all. They don’t feel comfortable at all, but we love the--
Q They do.
A --beach.
Q They carry their grandchildren down the walkway--
A We--
Q --correct?
A We usually stop at the top of the walkway, leave--leave a wagon
and leave the kids’ carriage, and then they... Well, it--if you
saw what it takes to get down to the beach... And, if you’re
going about safety issues, you’re way off here, because, getting
to that beach is a hazard, at best. You know, I can assure you
once this is settled, there--there--there’ll be--there’ll be a
much safer way to get down there. My problem is, is that I
don’t know how I can keep it to be safe because the--
(unintelligible)--will washout. And I’m not talking about
winter washout. I’m talking about summer washout.
Q It’s because it’s sand, correct?
A Well, no. It’s-- It’s because there’s water that runs through
the sand, right, and...
Q In terms of the location of storm runoff--sewer runoffs, they’re
actually at the mouth of that walkway; there actually is a storm
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sewer--
A There--
Q --right there, isn’t--
A --certainly is.
Q --there?
A There certainly is.
Q And that-- So the water runoff, from the street level, goes into
that storm sewer.
A Some of it.
Q Now, you’re suggesting that by relocating that walkway over onto
the Wormuth property, away from that storm sewer, you’re gonna
have better drainage?
A No. No. What I-- What I’m suggesting is retaining the
easement, okay, that you purportedly say is on the--on the
Wormuth property, okay, and the walkway, is a safe way to run
because the water run-- If we have to use the walkway as our
only means of getting to the beach, the maintenance on that will
have to make it--we’ll probably have to build it up a little bit
and we’ll have to do something at the very end to make it safe
to get down there, okay.
Q Steps.
A Whatever. And-- And then the City’s gonna have an issue because
of that sewer you got down there doesn’t handle the water. When
it rains hard, Sunset Shores Unit 5, all the way down R let--R--
R Lane and the other one, fills up that sewer, inch of rain,
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keep that sewer filled up, then the rest of the water goes down
to the lake. The majority of the water goes down to the lake.
Q When did you sell your boat?
A I sold that little sailboat in ’97. And I--you know, one of the
reasons I sold it, ‘cause, I couldn’t get down to the beach
anymore.
Q Okay. Now, you talked also a problem you have with this is
the--the fact that you have a deeded access on your deed and you
don’t believe that to be sufficient.
A And it’s-- And it shows where the--the deeded access is; and
it’s the beach plus--
Q Just-- Just answer my question, if you would. One of the
problems you had with this, is that, you believe that the--you
have deeded access recorded on your deed and you think that
that’s a reason not to agree to this change; is that a true
statement?
A Yes, it is. Can I tell add--you why?
Q No. Your c--a Your counsel will ask you to explain. Until--
Until he’s up here, let me--let me ask the questions to keep it
moving. You’re aware that if the--the Court approves the
proposed modification that the modification will be recorded
with the County Recorder; are you aware of that?
A I’m sure it will be, yes.
Q And you are aware that as part of recording that with the County
Recorder, it will go into the chain of title for your deed,
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correct?
A Hopefully.
Q And, are you also aware that by creating a dedicated walk as
opposed to an easement, you and the other members of the
subdivision will be given fee simple title to that walkway,
correct?
A Those were some of the changes that we help negotiate with
your--your consent hearing.
Q Okay.
A Not--
Q So-- So--
A But-- But--
Q So you--
A But you--
Q --will have--
A --don’t--you don’t have it--you’re not paying to get it put back
on my title.
Q Well, how--are--is it your testimony that it’s not gonna show up
in your title if--if it’s recorded as a subdivision plat
amendment as opposed to an easement; is it your belief that it
won’t show up in the title?
A I-- I-- I suspect I’ll have to go get a lawyer and I’ll have to
see what it would take to get it added to my title, ‘cause
that’s worth money to have it on my title.
Q Okay. Well, take a look at Exhibit B-1. That was-- This
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document was admitted as B-1. What does it say in the
conveyance block of B-1?
A I’m not sure where you’re talking about, the convey
Q Let me show you here. Why don’t you read, right there.
A Yeah. Lots 29 and 26, Sunset Shores 5, according to the plat
thereof, recorded November 14, ‘61 and Volume 18 of plots, page
29 is amended by Circuit Judgment, recorded August 22nd, ’68,
some ten dollars; subject easements and building and use
restrictions of record, and further, subject to any special
assessments or record.
Q So, as far as the Wormuth’s deed, it showed the modification
that was the purported modification of that 1968 Judgment,
correct?
A Um-hum.
Q So, that’s a yes?
A Yes.
Q So-- But still, you’re concerned that somehow this won’t show on
your--your chain and title?
A My-- My concern is that--that I--I want every lot that has--not
has--(unintelligible)--rights-- This was the intent of the
subdivision when they formed it.
MR. KNOX: Well, I’m--I’m going to object and move to
strike. You know, I’m--
THE WITNESS: Okay.
MR. KNOX: --not sure this witness has knowledge of the
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intent of--
THE WITNESS: Well, I talked to the--
MR. KNOX: --the formation--
THE WITNESS: --guy--I talked to the guy that--
MR. KNOX: I--
THE WITNESS: --did it. But, anyway, for me, I want
it on my lot, I want it on my deed, and many other people want
it on their deeds.
BY MR. KNOX:
Q If you had assurances that the plat amendment was in your chain
of title so that anyone that looked at your chain of title, they
knew you had fee simple title to the walk that we propose, would
you re-- would you lift the objection?
A And that includes the beach.
Q And the beach.
A Yeah.
Q Well-- Well, the beach easement.
A I would-- I would move my objection from that particular
objection. I originally had three objections; safety,
usability, and deeds. That’s what I’ve been telling my lawyer
since we started this, okay. He has satisfied me that on the
deeds – that’s why I didn’t raise it, okay. On the deed it
sounds like there’s a way to do it and it might cost us some
money. I’m gonna have to go to a lawyer. I don’t understand
why I have to spend money to record something I already had on
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my deed. But, that’s what might happen here.
Q Okay. So, the other two are usability and safety.
A Safety.
Q And we know that you’ve been using this access very frequently
for an extended period of--
A Very--
Q --time--
A --limited usability. No more boats. No more boats, okay.
People only, okay. I could never smelt fish down there again
with my stuff, okay. And, I’ve got kayaks now that we can’t
ever bring down there. So, it’s a--it is a--from a-- Use--
Usability and safety are two--are two big concerns.
Q Okay. Now, in order to--if you were to use the 1968 Judgment
area, you would have cut through the trees, correct?
A Yeah.
Q Okay, trees would have to go.
A Some bushes. And this is a spruce tree or something.
Q And there is a drop off from that level down to the beach level,
correct?
A Yep.
Q So you would have to modify that in order to be able to use the
’68 Judgment?
A We’d have to put steps there.
Q Assuming, assuming... Well, I’ll get to that here. Assuming
you were permitted do--to do so by the DEQ, correct?
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A Yeah. I don’t think they’ll be a problem with putting steps.
Q Well, going through the sand dunes and removing dune grass...
A I won’t re--remove it. I’ll attach it to the--to the railroad
ties, and we’ll make it so we just bend it up for the winter
and--
Q Okay.
A --it will be off the beach.
Q So you’d actually have to put steps in, correct?
A Yep. Either way, we gotta do something ‘cause--
Q You can put steps in over on the existing walk.
A Except, it’ll get blown out like the other ones did. They were
there. You got a picture here that showed them, and they’re
gone.
Q Still gonna take maintenance, though, right?
A Sure. But my point is--is that if you don’t have a place for
the water to go that’s separate from your easement, you--you
gotta--you’ve got a bad situation.
Q Well, but, you know that the City of New Buffalo reviewed this
and approved it, correct?
A I don’t think they-- I think the lawyer for the City of New
Buffalo did not sign say an engineer gave an opinion of this.
And, by the way, I’m glad you raised that because everybody--
Q Just hang on. Hang on.
A I’m answering your question.
Q No. The-- The City of New Buffalo reviewed and approved this,
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correct?
A I Yes, they--
Q Okay.
A --did, limited--
Q That’s--
A --review.
Q They-- They approved it?
A Based upon they can get access. That’s the only thing they
approved. I will talk to their engineer, if they have done a--a
water study on it.
Q You know that the--the drain commission was named a party to
this lawsuit.
A Um-hum. Um-hum.
Q And they didn’t have an interest in it, correct? They didn’t--
They didn’t--
A The drain--
Q --involve--
A --commission--
Q --themselves--
A --doesn’t walk down the--the plotted walkway, and, evidently,
you haven’t either.
Q Well--
A If you have--
Q I have.
A Okay. Did you walk all the way to the beach?
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Q Yes.
A And how--how did you traverse that last 10 feet?
Q If you put stairs at the end of this 1968 Judgment--
A Yes.
Q --then you’re not gonna be able to take a boat over that,
correct?
A Well, I can slide the boat down the stairs.
Q Okay. And you could slide the boat down the stairs over on the
existing walkway, correct?
A If I could keep stairs there.
Q Okay. So the issue, ultimately, is whether you keep stairs
there as opposed to whether the stairs are adequate?
A It-- And when it storms, you better not try and use that--that--
that easement-- That walkway will not be safe at any time if it
storms. It’s-- Water runs there for a good 15 to 50 minutes
afterwards and its slicker than you wanna--you wanna walk up.
Q And it’s a sand walkway, correct?
A It’s clay and sand and rock. The sand is on the beach. As you
move up, it’s more of a mixture of other compi--aggregates.
It’s not sand all the way up. There’s a lot of rock in it.
Q Now, you know that the walkway that’s being proposed is a 10-
foot wide walkway, correct?
A Yes.
Q Which-- Ten-feet wide, would that accommodate a boat going down?
A Yes.
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MR. KNOX: Can I have one second, your Honor?
THE COURT: Sure.
MR. KNOX: One further line of questioning here, your
Honor.
BY MR. KNOX:
Q The drop, level of drop, down to the beach, would you agree that
the level of drop down to the beach is greater from on the
Wormuth’s yard, where that ’68 Judgment is, it drops further
down to the beach at that point than it does over on the walkway
that’s presently used?
A To answer that, it would depend upon, you know, where the sand
is at up on the beach. But I think, in general, it’s probably a
little bit more of a drop from the--yeah, yeah I think it does
build up a little bit there. There’s kind of a low point. I
mean, that’s where--that’s where the swell was at. So, there’s
kind of a nat-- So the lots east of there, they put a lot of
stone in, you know, revetment for protection, and then, it--it--
it--there’s--there’s a bit of a swell there. But the checkered
easement at--and the beach easement was--was on that higher
part, yes.
Q Yes.
A So it’s--the answer to the question is yes.
Q Okay. It would drop further here down to the beach than it
would over on the walkway?
A Right. And that’s natural because of the way the water’s gotta
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go.
Q Okay.
MR. KNOX: No further questions, your Honor.
MR. HYRNS: No further questions.
THE COURT: Okay. I-- I wasn’t clear on one thing,
Mr. Watson. On-- Would you go to Exhibit L?
MR. KNOX: Well, I’m sorry. Were you talking--
THE WITNESS: Exhibit--
MR. KNOX: --to me--
THE WITNESS: --L.
MR. KNOX: --judge?
THE WITNESS: He wants me to look at--
THE COURT: No, I--
THE WITNESS: --Exhibit--
THE COURT: --there was--
THE WITNESS: --Exhibit L.
THE COURT: I have a question for him that I’m not
clear on.
THE WITNESS: Okay, I’m there, yeah.
THE COURT: We-- Are you saying that what you’re
seeking is two avenue--two ways to get to the lake?
THE WITNESS: Well, this--this was what was actually
deeded, the beach. And this easement is--actually goes all the
way to Shore Drive--
THE COURT: The one in--
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THE WITNESS: --okay?
THE COURT: --squares?
THE WITNESS: The one in squares, right. And later--
And later this walkway was put in, okay, in ’68. So, both of
those existed. And, what I’m saying, okay, is that I--I--I
think what exist legally right now is that both of those things
do exist for us, both the--both this beach easement and the
walkway exist.
THE COURT: Okay. So you’re saying that--that both
the--the squared part on the right--
THE WITNESS: On the right, yeah.
THE COURT: --and on the left, the clear part, that
says “walk per plat”?
THE WITNESS: Right. Yes.
THE COURT: So, you’re saying you give both of those?
THE WITNESS: Well, Mis--Mr. Singsb--Slingsby might
talk more about this ‘cause when--he--he’s--
THE COURT: I’m just asking you--
THE WITNESS: Yeah. Well--
THE COURT: --what--
THE WITNESS: --I--I--
THE COURT: --was your--
THE WITNESS: Well, my--from my safety and usability
point of view, you need this, just for the water run-off and you
need at least some of this for--you know, for safety so that
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you--you got a--you got a high enough ground that you can get
it. Ideally, yes, we’d want both, okay.
THE COURT: Okay.
THE WITNESS: But--
THE COURT: And what if you don’t-- I mean, I don’t
know the answer to this--
THE WITNESS: Yes.
THE COURT: --at this point, but if you are--only get
one of those, what it--what does that deal with the safety--how
does that deal with the safety?
THE WITNESS: Well, if we keep this, over here--
THE COURT: This being--
THE WITNESS: This--
THE COURT: --the--
THE WITNESS: --being to the left of the walkway,
where, kind of, the creek is at. When you get down to the beach
area, right in this area, it’s--it’s very unsafe, and we won’t
be able to do much about it ‘cause water’s gonna be coming
through there all the time. If we had this, okay, as I said,
it’s higher--
THE COURT: This being?
THE WITNESS: This being the--the easement in
question.
THE COURT: The one in-- The one in--in squares?
THE WITNESS: In squares, right. When you get to this
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point, then it’s a little higher to the beach, but then, you
could put stairs there. And that’s where I--I used to drop my
sailboat--
THE COURT: So it’s--
THE WITNESS: --off.
THE COURT: --the stairs that’s the issue between
those two?
THE WITNESS: No, no. It’s-- It’s the-- It’s the
higher ground that is the issue here, so that you’re not-- This
is-- This part of the ground here is--you can--it’ll be much
easier to maintain ‘cause it, you know, it--it--it doesn’t get
washed out.
THE COURT: Okay.
THE WITNESS: This area over here is-- I don’t know if
it’s even legal to put a walkway or easement over a--over a--a
swell and--and ravine. I don’t know. It doesn’t seem to be a--
a safe way to go about giving people access.
THE COURT: Okay, I think I understand what you’re
saying.
THE WITNESS: Okay.
THE COURT: Okay, thank you. You may step down.
THE WITNESS: Okay.
THE COURT: Thank you.
(At 2:06 p.m., witness stepped down)
THE COURT OFFICER: Raise your right hand. Do you
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solemnly swear or affirm that the testimony you’re about to give
in the matter pen--pending before the Court shall be the truth,
the whole truth and nothing but the truth, so help you—
MR. REIMANN: Yes.
THE COURT OFFICER: --God? Thanks. You may be
seated.
JAMES REIMANN
called by the Defense at 2:06 p.m., sworn by the bailiff,
testified:
DIRECT EXAMINATION
BY MR. HYRNS:
Q Your name, sir, and the spelling of your last name?
A James Reimann: R-E-I-M-A-N-N.
Q Mr. Reimann, where do you reside?
A 333 North Eagle.
Q And is that in Sunset Shores?
A In Sunset Shores.
Q And which plat is it located in Sunset Shores, if you know?
A It’s on that-- We’re on the other side of the creek. So it
would be...
Q Number 2?
A Possibly 2.
Q Lot 5, Eagle Street.
A I believe so. Yes.
THE COURT: What subdivision is that?
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MR. HYRNS: Your Honor, it says, Sunset Shores Number
1.
THE WITNESS: We’re one of the first ones.
BY MR. HYRNS:
Q And, sir, how long have you had a residence there?
A We moved to Sunset Shores in October of ’89.
Q And then have you been residing there ever since 1989?
A Yes.
Q And, are you aware of the platted walkway that’s being
discussed--
A Oh, yeah.
Q --in Sunset Shores Number 5?
A Yes, I am.
Q And how are you aware of that?
A I’m another boater.
Q Okay.
MR. HYRNS: With that, your Honor, I have marked a
proposed exhibit, Exhibit B-6--
THE WITNESS: When we moved there--
MR. HYRNS: Hold on, please.
BY MR. HYRNS:
Q Okay, you’re a boater, and you were saying when you moved
there...
A When we moved there, we brought a 16-foot Hobe on a trailer. We
had a van and I used to back the Hobe down the easement and drop
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it at the top of the drop-off and push it down into the creek
and then eventually to the lake.
Q And then you started doing that in approximately 1989?
A Yeah, it was in ’89, ’90, ’91, up until the fence went up.
Q Okay. You have in your hand a proposed Exhibit B-6. Does that
show your Hobe Cat?
A Yes, it does.
Q Okay.
A That’s it, right here.
Q And then, do you happen to know what year that picture may have
been taken?
A This is in ’80--’89.
Q Okay. So, again, sir, you indicated that you--you were able to
traverse the easement, put the Hobie Cat in in ’89 until what
year, sir?
A Until ’85; ’85 was the last year we dropped it--well, we--we
took it out. ‘Cause in ’86, the fence was up and, like I told
you, I didn’t wanna buy a section of fence. And you asked me
why?
Q Yes.
A Because I’m a terrible trailer backer upper, in lieu of other
words. I was all over that easement.
Q And when you’re referring to a fence, sir, what fence are you
referring to?
A The white fence that the Wormuths put up.
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Q If you look in that black book there, sir, towards the back
there’re some picture; well, let’s just use Picture P as in
Paul.
A P. Got it.
Q Okay. You’re referring to a fence then.
A That’s the white fence.
Q Okay. So once the white fence went up, then you didn’t feel
comfortable backing your boat up any longer?
A No. I’d been buying fences.
Q Okay. Do you have any--any knowledge or any comment as to
whether or not the shrubbery on the other side of the fence
depicted in Picture B was or wasn’t there when you were backing
your boat up?
A It was there but it was a lot smaller. And I don’t know if it
was all there. Like I said, there were a couple of times I put
the boat, particularly in ’89-’90 I put in their front yard. It
wasn’t theirs at the time.
Q Okay. We now know that they purchased the property in late
1994, correct?
A Yes.
Q Okay. You-- You’ve been involved in this lawsuit?
A Yes.
Q And do you have any concerns other than maybe the-- Was your
inability to back a boat down to the--down the easement a
concern of yours?
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A I’d get it down there eventually.
Q Okay.
A My-- My concern is the maintenance of the seawalls and emergency
vehicles having access to the lake down that easement. It’s
always been. Yeah, we’ve got some pictures also.
Q Yes, you do. But the one that’s been marked into evidence is a
W and it is some Oselka equipment?
A Yep.
Q Have you seen big equipment down on that easement in--since
1989?
A Oh, yeah. There was-- Since ’89?
Q Yes, sir.
A In 9-- In 8-- In ’95 we had a big--a big storm and there was a
lot of equipment moved down that easement. There was
excavators, and graders--or, crawlers, crawlers that were down
there, and--and loaders.
Q There’s been some testimony that the current easement varies in
width what could be as narrow as 4 feet in some areas?
A Yes.
Q Would you agree with that testimony?
A Yes.
Q How would you describe the easement as it currently sits today,
September 13th?
A Unless you’re gonna run over some evergreens and maybe a fence,
it’s pretty tight.
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MR. HYRNS: Your Honor, I’d like to move for the
admission of my proposed Exhibit B-6, which is the picture with
the catamaran who--was testified to be in 1989.
THE COURT: Mr. Knox?
MR. KNOX: No objection, your Honor.
THE COURT: Anyone else? Okay, B-6 is received.
(At 2:13 p.m., DX B-6 admitted)
THE COURT: And, Mr. Hyrns, I--do you have a copy of
these for me?
MR. HYRNS: Your Honor, the originals are on the front
desk here and the ones that have been admitted, I would be more
than happy to provide you now--
THE COURT: No, that’s fine. I was just--
MR. HYRNS: Okay.
THE COURT: --hadn’t seen them yet. That’s fine.
MR. HYRNS: Yes, your Honor, we do.
BY MR. HYRNS:
Q Any other concerns, sir? I didn’t mean to limit your testimony.
A Those are my two biggest now, as I’ve been--I’ve voiced them
quite a few times.
Q Okay. Thank you very much, then.
MR. HYRNS: Thank you.
THE COURT: Mr. Knox?
CROSS-EXAMINATION
BY MR. KNOX:
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Q Just a few questions, Mr. Reimann.
A Sure.
Q So, as I understand your concerns, one is access for your
beach--or, for your boat, correct?
A No. No. It’s-- It’s-- It’s access for emergency vehicles and
maintenance equipment to--to work on the seawalls of the bra--
or, the--of the residents who live along the lake.
Q Okay. So, in terms of access with your boat, that’s not one of
your concerns?
A No. No.
Q Okay. The-- Let’s talk about access by emergency vehicles and
equipment to maintain seawalls. The easement that is identified
in the 1968 Judgment, would you agree that that is 10 feet wide,
if you know?
A Yes.
Q So, if the Court were to provide that as the easement, the
access, they would have a 10-foot wide access, correct?
A Right.
Q And then, of course, anybody who owned either side of that would
be able to put up their fences with the permits, or whatever, if
it’s the ’68 Judgment, correct?
A Yes.
Q If it is what we purpose, it is 10-feet wide as well, correct?
A Yes.
Q So, in terms of the width that’s going to be proposed--that’s of
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this--this access that comes out of this, it’s gonna be 10-feet
wide regardless of wherever it is.
A Okay.
Q No, that’s a question. I’m sorry.
A Oh. Yes.
Q Okay.
A The one-- Can I expound on that?
Q You can.
A The one thing that--that I know in the ’68 easement, the
machinery was able to get down there. What’s there now, unless
they’re gonna--like I said, unless they’re gonna run over some
shrubbery or fences, some--some--something’s gotta give.
Q Well, there’s no fences there now, right?
A Right.
Q Okay. So they’re--
A But I’m--
Q --not gonna--
A --assuming--assuming.
Q They’re not gonna be running over any fences today.
A No.
Q Okay.
A Right.
Q The-- But if it’s 10-feet wide, its 10-feet wide, regardless of
where it is.
A Yes.
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Q And, if it is less than 10-feet wide because of shrubbery, then
that shrubbery should cut--should be cut back.
A Correct.
Q Has-- To your knowledge, when you’re talking about the ’95
storm--
A Storm.
Q --did the 9--when they had the ’95 storm - and we saw the
photograph here in Exhibit V-–
A Let’s see, that was ’96.
Q This is ’96? Okay.
A Yeah. The ’95-- Do you have those, Randy?
Q Well, he can--he can get here-- I mean, he’ll ask these
questions when we’re done.
A Okay.
Q At least, in terms of ’96, you know, heavy equipment was able to
access down the beach, correct?
A Yes.
Q Okay. And with proper maintenance, that 10-foot wide walkway
that we’re proposing, that would accommodate heavy equipment
going down to the beach if necessary, correct?
A They’re gonna have to do some work, but, yes.
Q Okay.
MR. KNOX: No further questions, your Honor.
THE COURT: Mr. Hyrns, anything further?
MR. HYRNS: Briefly, your Honor.
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REDIRECT EXAMINATION
BY MR. HYRNS:
Q Sir, I’m gonna show you what has been marked now as Defendant’s
proposed Exhibit B-7. Your testimony, you kind of eluded to the
fact that there was some other equipment down there at some
other time, and is that the reference you were talking--
A That’s--
Q --about?
A This is, yes.
Q Okay. And B-7, what is that; it’s a--it’s a--?
A Ex-- Excavator and a du--and a crawler.
Q Okay. It’s a newspaper article?
A Newspaper article.
Q Is there a date on that newspaper article?
A December 7th, ’95.
Q ’95. And it depicts a crawler on the beach doing work. Do you
recognize where that crawler is at on the beach there?
A In-- In front of Py--Pyrex.
Q Which is where, sir?
A The-- Let me see. Yep, that’s it, right there.
Q And you’re pointing to the tip of the--of the plat for Sun--
Sunset Shores Number 2?
A Yes.
Q Okay.
A I believe that’s one.
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Q That’s simply one, okay.
A Yeah.
Q But that’s the document that you were searching for in your
questioning with Mr. Knox?
A Yes.
Q Great. Okay.
MR. HYRNS: Your Honor, may I move for admission of B-
7?
THE COURT: Mr. Knox?
MR. KNOX: No objection, your Honor.
THE COURT: Any other objections? Okay, B-7 is
received.
(At 2:20 p.m., B-7 admitted)
MR. HYRNS: Thank you, your Honor. No questions.
THE COURT: Okay.
MR. HYRNS: No further--
THE COURT: Does--
MR. HYRNS: --questions.
THE COURT: --anybody else have a question for Mr.
Reimann? Okay.
You may step down. Thank you.
(At 2:20 p.m., witness stepped down)
THE COURT OFFICER: Raise your right hand. Do you
solemnly swear or affirm that the testimony you’re about to give
in the matter now pending before the Court shall be the truth,
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the whole truth and nothing but the truth, so help you God?
MR. DEVLIN: Well, yeah.
THE COURT OFFICER: Thanks.
DAN DEVLIN
called by the Defense at 2:20 p.m., sworn by the clerk,
testified:
DIRECT EXAMINATION
BY MR. HYRNS:
Q Would you state your name for the record, spell the last name?
A Dan Devlin: D-E-V-L-I-N.
Q Mr. Devlin, do you have property ownership in Sunset Shorts?
A Yes.
Q Where is that at?
A 1301 Shore Drive.
Q And the--that’s in Sunset Shores Number 5, then?
A Yes. Seven houses from the easement.
Q Okay. I’m gonna ask you to step down just briefly. Don’t
speak. Just point to...
A Lot 18; 17 or 18.
Q Okay. How long have you owned the property, sir?
A I bought it in 2000.
Q Prior to purchasing that property, did--were you connected at
all with Sunset Shores?
A Yes. My parents built a house across the street from ours on
the lake in ’79 and my cousin’s family had a house across the
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street on the lake since ’73.
Q Is it fair to say, then, that you’ve been visiting this property
since approximately 1973?
A Yes.
Q More frequently after your parents bought in 1979, or the same?
A We kept going through all the time, since ’73, almost--
Q Okay.
A --through--
Q Are you aware of the easement that’s an issue here and the
plat--plat from the--
A Yes.
Q Okay. And then do you, sir, have some concerns concerning the
re-establishment of the walkway and the--of the walkway?
MR. KNOX: I object to that characterization of the
question in terms of re-establishment of the walkway. We’re not
re-establishing any walkway. We’re re-platting the--the paper.
THE COURT: Yeah. I will sustain the objection.
BY MR. HYRNS:
Q You’ve seen the documents that will sh--that have shown that
there is a proposed movement of the walkway for Sunset Shores
Number 5--actually for Sunset Shores 1 through 7?
A Yes.
Q Okay. Do you have any concerns with that movement of that
walkway?
A Yes.
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Q Can you explain those to the Court, please? That-- And I’m
gonna stop you there. I’m gon-- I’m gonna show you B-3. So if
this is any assistance to you in your testimony
MR. HYRNS: Just a letter from myself, for the Court.
THE WITNESS: Yes. My-- My first-- When the fence
first went up and the shed went up, when you come down the
street towards some--towards this easement from Water Street and
the park, used to have a shot of seeing the lake all the way
down, and growing up, we’d always look to see if--how calm the
water was, if you could go out on the jet skis or the wave
runner or the boat, or whatever you were doing. And when that
fence first went up, I thought it was on the easement. And
prior to the Wormuth’s owning the house, I used to hang out with
the boys--the grandkids of the previous owners, and they had
told me that that was an easement there. So I was shocked it
was there at all. So my first concern is just--you know, the
whole reason we all go up there is ‘cause we wanna look at the
lake. So there’s a value. I think when you drive down that
hill and you see the lake it’s beautiful. My other concern is
that easement, growing up, was always way wider than 10 feet.
All that equipment went down. We heard testimony about people
putting boats down there. And it was dune grass in the 70s and
early 80s, and then somewhere along the line someone--I think
when they put the heavy equipment down there it got all
compacted. But, previous to that, it was--it was just dune
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grass. And every spring, soon as the water got warm, if you
going to the beach, you carved a new path out, you know. So
when everyone gets all these details about what occurred, I
think you gotta remember it was all dune grass until they had to
put equipment down there to fix the beach. And I too had a
sailboat and I too carried a sailboat down there, and, it’d be
very difficult to do today - being wider, it’d be much easier.
We used to carry jet skis down there, even, ‘cause it wasn’t--
back when jet skis were brand new, the--they wouldn’t let you
dump them in the marina. So, I’ve been using it for a long
time. I’m of the feeling that, you know, I--I think that we’ve
been--that’s been used as drainage forever; and we need the
drainage side and then we need the path on the other side. And
where this is located, it--from my parents and the lake, its 700
or 800 feet southwest of here. And they have gone down the
beach. They have two full flights of stairs and it doesn’t even
get to the water. Here, you’d only need a few stairs to get
down to the water. So that’s how much that hill goes up that
and that’s why all that water runs down the hill. And when
there was all dune grass in there, a long, long time ago, the--I
don’t think the water issue was such an issue ‘cause it all got
sucked up in the sand. Now that it’s been compacted by those
machines since that bad erosion problem, that’s definitely an
issue. So, I guess I have the issue of, I guess, a) value, when
you look down the street and you see that panoramic view of the
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lake that we used to have that we don’t have anymore; and then I
got the drainage issue; and the path issue is much smaller than
it used to be; and now, even--even since ’95 there’s more houses
built there when we had the last equipment there; and, if big
equipment has to get down there to fix something, that’s a major
concern. And they need big equipment. My parent’s house, the
whole backyard washed out and they filled it with 10,000 yards
of sand. And the equipment got down by the water pumping
station, which now has all kinds of new easements they put in
down there, that, I don’t know if you could use those anymore
either. So, that’d be another concern of mine.
BY MR. HYRNS:
Q Thank you, sir. Are you Do you have a family that lives at the
residence?
A No. We’re summer--
Q Summer?
A --summertime.
Q Okay. Thank you.
MR. HYRNS: Your Honor, I have no further questions.
May one, your Honor. I apologize.
BY MR. HYRNS:
Q You’ve been referring to a document, and what is just for the
record again what’s--
A Oh.
Q --that document?
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A B-3. Exhibit B-3.
Q Thank you, sir.
THE COURT: Mr. Knox.
CROSS-EXAMINATION
BY MR. KNOX:
Q Mr. Devlin, you said that at some point in the past you were
able to use a--a walkway and it was bra--better than 10-feet
wide?
A It used to be just a big dune grass area over there. Oh, back
in the ’80-’81-‘82, it was a large dune grass easement and there
were several paths going down there, not just one. It’d be like
when you have the dunes and you go up the hill.
Q Okay. Well, let’s talk in terms of the--the walk as it exists
per the--per the plat. That’s 10-feet wide, correct?
A On the plat.
Q On the plat.
A The-- The original one from--
Q The--
A --’68?
Q Yes.
A I believe so.
Q And the walk as it was identified in the 1968 Judgment, that’s
10-feet wide, correct?
A Correct.
Q And the walk that has been proposed by the Wormuths, that’s 10-
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feet wide as well, correct?
A Correct.
Q So, in terms of the documents reflecting the distance of the
walk, the Wormuths are proposing the width of the walk the same
as every other recorded document has the width of the walk,
correct?
A Correct.
Q So, if you don’t--if you were to use an area that did not fall
within the width of that walk, wherever it is, that wouldn’t be
proper, correct?
A Correct. But, it was improperly done for years and years and
years.
Q I-- Now, that, I agree with. Things are-- Things are very
confusing right now as far as what’s--what the--the correct
designation of the--of the walkway on the--the paperwork. In
terms of the view, if the Court were to grant the modification
that we’re suggesting, that moves the walk-- First of all, it
doesn’t change the walk as it exists on the ground, correct; you
understand that?
A Currently exists.
Q Currently exists, correct. And the walk as it currently exists
is about 5 feet over from where the walk was originally platted,
correct?
A Correct.
Q So, in terms of the change in view from the original plat to
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where the--the walk is that we would propose, you’re looking at
a shifting of the walkway about 5 feet.
A I disagree.
Q From the original plat to where we’re proposing?
A Oh, that I agree from the plat--
Q Okay.
A --yes.
Q And if you were to look at a shift in the plat... Well, the
original walk. I’m sorry. If you look at the original walk as
identified by Brian Lieberg, and, where the ’68 Judgment has the
walk designated, you’re looking at shifting it over about 7
feet, correct?
A That’s what it says there.
Q If the Court said that the ’68 Judgment had to be implemented,
then there’s nothing that would prevent the Wormuths from
putting a fence along the ’68 Judgment, correct, assuming they
got permission from the Courts--or, from the clerk in the--the
city of New Buffalo?
A That they could, put it on the east side of the easement?
Q Anywhere, on their side of the ea-- Well, you know what, I guess
to be specific, you wanna look at the ’68 Judgment. If the ’68
Judgment was implicated and all of that easement area fell
within the Wormuth’s property, there’s nothing that would
prevent them from fencing in each side of that, correct?
A I’m not sure about that. Most-- Most municipalities have an
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ordinance where they’ve set back some fences. So, I don’t think
you can put a fence right on your property line.
Q Okay. They can certainly put trees up there, correct?
A I-- I--
Q Well--
A --doubt it because then the trees would be growing over the
easement and they have--you’d have arguments over whose cutting
the trees.
Q They could certainly put trees along the--the side of the
property facing the lake, could they not?
A I’m not sure. He just said it was a dune. You can’t do
anything within--
Q On the Wormuth property; up--up on the inside of the dune area.
A I-- I don’t know. I assume so.
Q And if they put a fence or they put a--trees, that would
effectively do the same thing - of blocking the view, correct?
A I disagree with that. In my-- In my opinion, the--the easement
that was used was way bigger. So if--if we kept the easement
where it’s platted in ’68, then that’s the walk path you got
there, and that’s your 10 feet; and then there’s the other side
of that easement, which is--water drains down, and the way I see
it, that’s part of the easement now too.
Q So you’re suggesting then that the plat--that the--the walkway
should not be 10 feet, that it’s necessary that it be wider?
A I’m saying that it’s been wider. I mean, they’ve used the wider
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access. Both hou-- The Radix, when they owned that house, they
kind of left the dune grass in; you know, people just walked up
and down and they didn’t really--they--there was never any
problems, you know. And then the lady on the other side, it was
the same thing, they--there was never any problem, so, there
was-- You know, on this side there was a patch that went in this
way to the path, and there’s another path that cut across her
dune grass this day, and sometimes there’d be one going down the
middle, and there was three big paths going down there. And
whenever-- I think it was 20 feet wider, you know. It was a big
path.
Q And that’s-- And that’s what you expect the Court to implement
here?
A I think the Court should leave the one that’s on the Wormuth’s
property there, and leave the other one the way it is. And the
other--the other issue I see is where you wanna move it over 10
feet, there’s the house on the other side I just saw this
morning that they’re--they’re doing a total remodel job to it
and I don’t know how much they’re encroaching upon this new
easement, and if--when they got their building permit, there was
no easement there. So, if you move that easement and put it on
paper, now you got a whole ‘nother building code issue that I’m
not sure if that goes through and that building goes through,
how that all ends up.
Q Well, the City of New Buffalo, you heard this morning, did you
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not, approved the proposal that we’ve submitted?
A Yes. But they also approved that building permit for that guy
to do his--
Q Not--
A --addition, but they didn’t know that this easement was coming
through when they did his permit.
Q Well, the City of New Buffalo has approved both, correct, the
building and--
A I think they--
Q --proposed--
A I think they--
Q --lot--
A --did it incorrectly, I would bet.
Q Well, the-- But they approved it, correct?
A Well, I’m not sure.
Q Okay. Well, you-- That’s fine. Do you presently own a
sailboat?
A No.
Q When did you get rid of your sailboat?
A Probably ’85 or ’86.
Q If-- You mentioned setoff in the erection of a fence. Do you
have any specific knowledge of the setoff requirements, not
speculation, not belief, but actual specific knowledge of the
setoff requirements for erecting a fence next to a property
line?
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A In a village or in New Buffalo?
Q Right here, in New Buffalo.
A No, I’ve never put a fence up in New Buffalo.
Q Do you have any specific knowledge about limitations on planning
of vegetation or shrubbery or evergreens?
A As far as what?
Q As far as whether the City would restrict planting of vegetation
in order to preserve a view.
A Nope.
MR. KNOX: No further questions, your Honor.
MR. HYRNS: No questions, judge.
THE COURT: Okay, you may step down.
THE WITNESS: Okay. Where’s this go?
THE COURT: Just set it right there, if you would.
(At 2:36 p.m., witness stepped down)
MR. HYRNS: For benefit of the Court, your Honor, I
believe I have one more witness and I would assume that I might
be able to conclude prior to three o’clock. So I’ll ask the
Court direction; should I call that witness?
THE COURT: Well, do you wanna take a quick break?
MR. HYRNS: I’m--
THE COURT: We can take--
MR. HYRNS: --asking the Court if it wishes to take a
break.
THE COURT: Well, we’ll take a quick break – 10
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minutes or so.
MR. HYRNS: Thank you, your Honor.
(At 2:36 p.m., court recessed)
(At 2:59 p.m., court resumed)
THE COURT: Mr. Hyrns.
MR. HYRNS: Ed Slingsby, please.
THE COURT OFFICER: Raise your right hand, please. Do
you solemnly swear or affirm that the testimony you’re about to
give in the matter now pending before the Court shall be the
truth, the whole truth and nothing but the truth, so help you
God?
MR. SLINGSBY: Yes.
THE COURT OFFICER: Thank you. You may be seated.
EDWARD SLINGSBY
called by the Defense at 2:59 p.m., sworn by the bailiff,
testified:
DIRECT EXAMINATION
BY MR. HYRNS:
Q Would you state your name for the record and spell the last
name?
A Edward Slingsby: S-L-I-N-G-S-B-Y.
Q Mr. Slingsby, do you own property in Sunset Shores?
A I do.
Q And which--which plat?
A Sunset Shores Number 1.
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Q Since I’ve been doing it with everybody else, would you indicate
to the Court and identify which lot is yours, sir?
A (Indicated)
Q You pointed at 15?
A Yes.
Q Okay. And how long have you been residing in Sunset Shores Plat
Number 1?
A Bought in July of 2003.
Q Comparatively speaking then, you might be a newcomer to the
other parties we’ve been listening from?
A Yes.
Q Are you also a member of the Sunset Shores group?
A I am.
Q And what is the tec--the official name for that?
A Sunset Shores Property Owners Association, and I am the
President.
Q And what is that association function or duties, or what do you
try to do?
A It is a group of the homeowners in Sunset Shores. It’s a
voluntary group. We-- The-- I guess the idea behind it is--is--
is to help the community to look-- If there problems the
community has we--you know, we try to discuss them. And we also
own the park, which is part of Sunset Shores.
Q Now, you said it was a voluntary organization?
A It is.
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Q So does everybody belong or do you have to apply and be a member
to belong?
A Everybody-- Everybody that lives in the platted subdivision of
Sunset Shores - and--and, actually, it’s an area, it’s called
Sunset Shores now - can be a member but they do have to pay dues
to be a member.
Q If you know, how many dues paying members do you have?
A I think we have about, maybe 80 now out of 100--about 100 dues
paying members out of 160 that are eligible to be members.
Q Now, you said you became president over that organization in
2004?
A 2004, yes. September of 2004.
Q We’ve reviewed a--a drawing of an easement; and it says at the
bottom of that in Ex--Exhibit L, it says, “For Sunset Shorer--
excuse me, “For Sunset Shores Homeowners Association, dated 7-
05-2005.” What can you tell me about the sketch here and the
reason for the sketch?
A Well, when I became president there are people that were telling
me that they were having problems with the neighbors as they
went down to the beach. And, really, I didn’t do anything about
it until the next year because I--this was wintertime. When
summer came, I heard more and more people growl, saying that
they were having problems with--with the neighbors, and those
problems being that--the neighbors were saying they did not have
any access to--to the beach or that--and in some cases they
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said, well, there was no beach in front of Lot 24 and 25, and
that the only beach that was available was across the creek to
the east, so, therefore, nobody should be walking anywhere on--
where they were walking to go to the beach--
Q And then where they were walking, is it your understanding that
they were trying to utilize an easement that existed in between
Lots 24 and Lots 25 of Sunshet--Sunset Shores Number 5?
A Well, that’s my preliminary thing was, I just look at the
property and I see that there’s--there’s an open space between
the--between bushes on the left and a fence on the right. So
I--at--at that point I didn’t know exactly where anything was.
I did look at a plat--
Q Okay, I’m gonna stop you there.
A Okay.
Q The-- The concerns that were expressed, though, were people
trying to traverse in between here, in between Lots 24 and 25?
A Yes. That-- I-- I couldn’t tell if it’s that space but,
because--
Q Okay.
A --it was an open space, it was bigger than that--than that--than
what’s shown there.
Q Okay.
A But, yes, that’s the general area that they were going to.
Q Okay. My question wasn’t referring to this 10 feet that’s
marked here, but--but it was occurring in between people trying
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to get down to the beach access using the space in between Lots
24 and 25?
A Yes.
Q Okay. And then you said that there was property owner in there
that was contesting person’s ability to use that--
A Correct.
Q --area?
A Correct.
Q And then who was that, that was contesting?
A In particular, Gayle Wormuth, and that’s what people were
telling me.
Q Okay. I apologize, Mr. Slingsby. I cut you off. You said that
you had reviewed a plat or--or you were gonna to move into that
direction?
A Well, when brought--when they brought up the problems that were
happening there, see, I only had gotten there a year before.
So, I tried to find out exactly what the--what the rights were
for the people and--and where they would sit. So I looked in
the--through the files that we had and-- So I think I--I saw
that--that we did have a community beach that was deeded to the
people at Sunset Shores that did not have riparian rights and
that it was in between or around that area that--that it showed
on that--on that map. And I suggested to--to our Shore Board
that we get an actual survey of what those rights are so we can
be sure that, number one, we’re not infringing on anybody
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else’s, and, number two, we know what we got.
Q And did you commission a survey then?
A I did.
Q And then, is that the survey from Wightman’s, marked as Exhibit
Number L? And it’s in the book here, Mr. Slingsby. Letter L.
A Yes. That’s it.
Q Okay. And as a result of receiving the survey, what, if
anything, did you do as far as notifying any individual or
individuals about the survey?
A I wrote a letter to--to Mr. Wormuth, telling him that we had a
survey and that his--his fence and other plantings were--were
located within our easement.
Q I’m gonna show you what has already been marked as Exhibit B-4.
And is that the letter that we’re referring to--that you’re
referring to?
A Yes.
Q And what’s the date of the letter again, please?
A July 6, 2005.
Q And, Mr. Slingsby, did you receive a response to that letter?
A I did. The letter was sent to the Sunset Shores Property Owners
Association to Arlene Pokuta, our treasurer. I don’t have it
with me but Mr. Wormuth said that-- I believe it-- It might have
came from Tracy Knox, I don’t--saying that he was going to
review what--what was--what was out there and get back to us on
what the--what he found. But, in that same letter, he said that
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he--he thought that there was no easement there and that there
was no beach and therefore, in that same letter, he said they
were not--they were--they--they were gonna stop people from
going--using that--that walkway, easement, community beach,
whatever you wanna call it.
Q And, it may not be an easy question but, what happened next
then?
A Then-- Then we were sued by the--by the Wormuths. The Sunset
Shores Property Owners Association was sued by the Wormuths.
Q Was that first lawsuit ultimately dismissed?
A I don’t know the legal term for it. I think it was dismissed.
It was dismissed because it--they did not have all the parties
that were--that were involved. It was heading through the
discovery, or whatever they found, that the Sunset Shores
Property Owners Association were not the only people that had
rights to that easement. But I’m...
Q While Mr. Knox is looking at one exhibit, I’m gonna show you
proposed Exhibit B-8. Just, generally, describe for the Court
please what proposed Exhibit B-8 is, please.
A That shows the--the property we’re--we’re talking about. It was
taken by an owner in Sunset Shores who’s actually a--a
professional photographer, and--and I was there at the time.
And I asked him to take these pictures because there was a
survey done, besides the one we did in 2005. This one was done
later in 2007. So, since they had the stakes out there, I
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thought it would be good to take a--get some pictures of what
the dash--what the boundaries looked like on the ground.
Q Mr. Slingsby, referring to that proposed exhibit can you look in
the exhibit book there to your left, and I think we’re talking
about a survey that was conducted in 2007 and is marked as
Exhibit Number K, K as in Kitten.
A Okay.
Q You see the--Exhibit K?
A I do.
Q And that date is what, July 24, 2007?
A Yes.
Q And then the picture that you have in your hand, do you know
when that was taken, sir? It’s at the top.
A This says June, 2007. I mean, June 30th, 2007. It’s not...
Q Again, this drawing was prepared on the 24th but the survey
could’ve been done prior to the rendering of the drawing? Mr.
Slingsby?
A Yes. Well, I--I would suspect that’s what happened.
Q Okay.
A I don’t-- I didn’t really get the--this. I didn’t-- I did not
commission this survey.
Q I understand. But, the picture that you’re handing--that you’re
holding there is it proposed Exhibit Number B-8?
A Yes.
Q It shows the flags that a surveyor recently put up, is that
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correct?
A Yes.
Q Okay. Is there anything of importance to Exhibit K, Mr.
Slingsby, which is the survey of July of 2007, that, you wanna
comment on?
A Well, I would--I would point out that the cross-hashed area is
what was deeded as a community beach – the whole area. The area
to the west of that, to the left as you’re looking at it, was
pretty much all--
THE COURT: You’re looking--
THE WITNESS: --all open--
THE COURT: --at K?
THE WITNESS: K, yes, sir. And the--at the very
right--at--at Shore Drive and the very right-hand side of the
hashed marked area, you can see where the shed is located. So,
you can kind of reference that to how wide the--the--the path
there actually is.
BY MR. HYRNS:
Q And that-- And you’re looking at the proposed Exhibit B-8, is
that--
A B-8--
Q --correct?
A --yes. B-8 shows the shed and the marker in front of it, which
is marked C, is--is a stake that that shows the furthest east
part of--of the deeded community beach.
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MR. HYRNS: Your Honor, I’d move for admission of
Defendant’s B-8--B-8.
MR. KNOX: No objection, your Honor.
THE COURT: Okay, B-8 is received.
(At 3:15 p.m., B-8 admitted)
MR. HYRNS: Thank you, your Honor.
BY MR. HYRNS:
Q You can just set it there, Mr. Slingsby. And I apologize, I’m
gonna go backwards a little bit. You indicated that after
commissioning your survey in July of 2005 and writing a letter
to the Wormuths that you received a--a letter in response, is
that correct?
A Yes.
Q I am showing you what has been marked as pro--Defendant’s
proposed Exhibit B-9, dated July 25th, 2005. For the record, is
that the correspondence that you received in response to your
letter to the Wormuths?
A Yes.
Q Again, read the date and the maker of that letter.
A July 25th, 2005, signed by Tracy Knox.
Q Thank you. You indicated that there was a suit that got
dismissed or somehow stopped and now you know that we’re
involved in this second lawsuit, is that correct?
A Correct.
Q And so, you’ve been involved in--in the legal proceedings since
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2005?
A Correct.
Q And in that regard, you have reviewed all of the records that
have been marked and introduced today as exhibits?
A Yes.
Q And, in particular, you have reviewed the corrected deed of
easement of 1967?
A Yes.
Q Reviewed the Circuit Court filings from the complaint that was
filed in 1967?
A Yes.
Q And you have reviewed the judgment that was entered by Chester
J. Burns in--in 1968?
A Yes.
Q Okay. I’m-- I’m curious. You-- You, moments ago, indicated
that the cross-has--hashed area is all a community beach. Do
you recall your testimony, sir?
A Yes.
Q And-- And how do you come to arrive at the conclusion that the
entire cross-has--hac--hashed section, on Exhibit L or K, is the
entire community beach?
MR. KNOX: I’m gonna object, your Honor, to the
characterization of that area as the community beach. Those
exhibits will speak for themselves. Whatever’s in the ’68--’67
corrected deed of easement or the ’68 Judgment are gonna speak
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for themse--for themselves. They’re gon-- One has been admitted
into evidence--the ’68 Judgment’s been admitted into evidence.
We’ve heard testimony that they reviewed other documents but we
certainly haven’t seen those documents. They would be
inadmissible in any event. But, to characterize that as a
community beach, I think you gotta look at the documents to
determine what it is.
THE COURT: Well, I can appreciate that. I am going
to let him answer the question.’
MR. HYRNS: And, your Honor, for the record, I show
that you moved into as an exhibit, Exhibit I, which is the
corrected deed of easement--
MR. KNOX: Yeah, my-- And my point is, those documents
speak for themselves, in that, to say that is a community beach,
well, I mean, that’s nice what Mr. Slingsby says, the point is,
what do the legal document say?
THE COURT: Well, I think the question was, why he
thinks it’s a community beach.
MR. HYRNS: Thank you, your Honor.
BY MR. HYRNS:
Q And-- And so, we’re back to that point again, Mr. Slingsby. And
I apologize for that. But my question to you is--is that, why
did you just testify moments ago that the entire cross-hashed
section here on Exhibit L is the community beach?
A Well, in doing the research, I looked at the--well, number one,
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the judgment of ’68 references the corrected deed of easement,
the 1967. So I looked at that. And it clearly says and clearly
states what the community beach--clearly states the size and
shape of the community beach.
Q And then you say, “It says” are you talking about the corrected
deed of easement?
A Yes.
Q And you’re talking about Exhibit I?
A Correct.
Q Okay. And is there a particular portion that you’re referring
to on Exhibit I?
A I am.
Q And do you wanna refer to that please? Read it out loud.
A “The amended and/or enlarged description of said community beach
is described as follows:”
Q Okay.
A And then it’s, “Legal description, beginning at a point on a
northerly line of Lot 25--
Q You don’t need to go any further, Mr. Slingsby.
A Okay.
Q But thank you. Now, Mr. Slingsby, by trade are you a surveyor?
A I am not.
Q A lawyer?
A No.
Q Layper-- What-- What is your profession, sir?
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A I’m an internet consultant.
Q Okay. But you’ve been looking over these documents for 6 years,
or thereabout?
A Yes.
Q Okay. Now, you, then, are aware, sir, of the proposal for the
plat amendment that has been brought before this Court by the
Wormuths and Mr. Tracy Knox?
A I am.
Q I’m gonna refer you to Exhibit M, sir, which is in that same
book and also on the poster board here. Now, there--there’s
been testimony that there’s been - well, I don’t know if there’s
been testimony. But, are you aware that there’s been several
versions of this proposed Exhibit A to the proposed consent
judgment?
A Yes.
Q The current one that we’re--now under consideration, Exhibit M,
have you had an opportunity to review that one?
A As of last night, I saw it--
Q Okay.
A --yes.
Q And what concerns, sir, do you have with respect to the Court
granting the relief being requested as far as the change in the
plat of Sunset Shores Owners Number 5?
A Well, my concern is that, number one, we lose the rights that we
had as a community beach; and, at this point, to the--there’s--
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there’s been a prescriptive easement, I guess you would say, for
all the--for the property that’s to the east--to the west of the
community beach that’s been used since--well, since the ’68
Judgment, I would guess.
Q Can you get up, sir, and identify on, either, this drawing or a
better drawing what--what area you’re concerned about?
A Well, on this one it shows, if you can see that correctly, this
is showing at--beginning 10 feet, part of it over this vacated
walk, and, if that vacated walk was the vacated walk from the
1968 Judgment, which is the vacated walk from the plat of 1961.
What we’ve been using-- And we had even rights to this and--
Q This?
A --all of-- This. I’m sorry. This cross-hatched part.
Q Cross-hatch section. And you’re referring to Exhibit L?
A Yes. And it goes all the way to Sunset--to the--to Shore Drive.
And the--the space next to that, all the way up to-- Actually,
in--in this walk-per-plat there’s some there’s actually
overgrown shrubbery and that type of stuff, which, pretty much
bounders Lot 24, on this side. So, historically, this whole
area has been--has been used by the people to--to, not only
enjoy the community beach, but get down to the lake, so.
Q You can resume your seat then. Can you refer again to Exhibit
K, which is the Wightman drawing of 2007?
A Yes.
Q The reason I’m asking you to do that, sir, is because you
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testified that there’s some plantings in--in what has been
marked on Exhibit L as a walk-per-plat. Do those plantings show
up in--in Exhibit K?
A They do.
Q And then where would you describe those from looking at Exhibit
A--K?
A On the four-- On-- Inside the walk-per-plat, half from--from
Shore Drive to about halfway in, towards the lake.
Q So your concern is--one of your concerns that you mentioned is,
is that the residents of Sunset Shores will have a--a smaller
area than they have been utilizing over the past years?
A Yes.
Q Do you have any other concerns? And-- And there I’ll stop you.
You heard the testimony of Mr. Watson, Mr. Devlin, Mr. Riemann
A Right.
Q --Riemann?
A I have the same concerns that they have.
Q Okay.
A Plus, again, I’ll go back to the--to the rights that--that, I
believe, just from reading the documents, were given the people
of Sunset Shores without riparian rights, which is--which I
believe is a smaller subset of people than what they’re saying
is--is all the people in Lots 1 through 7 of Sunset Shores. So,
it dissipates, I guess, the--the--the rights that we have by--by
giving them to more people. That’s-- That’s one thing. And the
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other thing is if--from reading the documents again, if the--the
history of--of the platting of the walk and the--and the
corrected deed of easement showed that when the corrected deed
of easement was--was deeded to the people of Sunset Shores
without riparian rights, the walk-per-plat was still there. So,
I believe that the developer wanted a walk-per-plat and an area
designated as a community beach that stretched all the way from
the lake to Shore Drive. And, you know, I don’t know if it was
his--his wisdom or whatever, but, the--the lake comes up quite a
bit, comes--deviates quite a bit. When-- When this was done
originally, it was--the lake was probably 100 yards farther out;
and now, the lake, itself, can come all the way up to where
they’re proposing the walkway ends where it hits community
beach.
Q Okay. Is there a drawing that would be helpful to show--
A Just-- This area right here is--is pretty much the bluff area--
Q Here?
A --that--that Tracy has talked about.
Q Okay, you’re looking at Exhibit L, correct?
A Yeah. And there’s a--I don’t know what this is, a transit line
or, I don’t know, a--a compass line that’s--that’s been used
in--in all the--in--in all the--in the ’67 corrected deed of
easement and also in ’68 Judgment. They all reference this
line. They all-- Actually, they all reference this line as--as
the--as the furthest most lot line of Lot 25. So, you can use
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that line, I guess, pretty much, to get an idea of--of how far
up the lake come. Sometimes it comes up here and sometimes it
goes farther back. But, any--any part of this that gets lost
is--is lost to people use the beach.
Q Thank you.
A And-- And they’re thinking that--that the--if you use this as
the walk-per-plat, the middle of that walk-per-plat line is
right there. So, if you’re looking here, you’re losing this
part, and--and I don’t see how you don’t lose-- You know, this
is a straight line coming from here to here, if the line is
moved over--
Q Are you referring to Exhibit M?
A M. I’m not sure that’s that line that they’re talking about.
Q Go ahead and take your seat again, Mr. Slingsby.
MR. HYRNS: Your Honor, I’d move into evidence
Exhibit--proposed Exhibit B-9, which is the letter from Mr.
Tracy Knox, dated July 2005.
MR. KNOX: No objection, your Honor.
THE COURT: Exhibit B-9 is received.
(At 3:30 p.m., DX B-9 admitted)
MR. HYRNS: Thank you, your Honor.
BY MR. HYRNS:
Q Referring to B-9, that letter from Mr. Knox, does it refer to
the fact that there is--there was no beach?
A Yes.
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Q At the time of the writing of the letter--of the letter?
A Yes.
Q And does it refer then if there is no beach as to whether or not
there was a designated easement?
A Yes.
Q How does-- What does--
A Well, there’s--
Q You-- You can paraphrase, if you’d--
A Okay.
Q --like.
A One part says that the easement was not intended to allow use of
the Wormuth property for any of--any other purpose than to
access East Beach only. The e-- The easement was very limited
in scope to provide access to East Beach. East Beach currently
does not exist, and if it did, it is inaccessible by use of any
easement over the Wormuth track. So those who currently use the
easement must necessarily be doing so for purpose other than to
access East Beach. To the extent the easement did exist - and
we believe it does not - it cannot properly be used under the
auspices of the homeowners association to access private
property belonging to the Wormuths or adjacent land owners. In
fact, because each--East Beach no longer exist, the Wormuths
could properly prevent all persons from entering their property
under the authority of the purported easement. It is their
intent to do so. Absent your agreement to record a written
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release of the easement, it is our intent to bring an action
seeking a judicial determination that the recorded easement is
no longer a valid right and should be removed as a matter of
record.
Q Now, I’m sorry, Mr. Slingsby, there is reference in there to
East Beach. We-- We’ve talked about beaches. Do you know what
it’s referencing when he says East Beach?
A Well, originally-- Gotta I refer to my--
Q If--
A --notes here. I’ve got a timeline of--of the things that
happened in Sunset Shores. Sunset Shores Number 1 was platted
in 1951, and in 1958 a community beach easement was created.
Now, Sunset Shores Number 1 is to the east of the creek.
Q Go ahead.
A Okay. And-- And so, Sunset Shores Number 1 was--they created a
community beach and, actually, in the documents, it was a--there
was an easement to a community beach and the community beach.
Two separate things. One was a walkway with only ingress and
egress, and the other was the community beach itself. In 1967,
the developer created the corrected deed of easement that I read
from before. But the first part that I didn’t read wa--was that
he said he wanted to enlarge the beach that he made in ’58. And
so, the corrected deed of easement reference that and actually
included that beach as well as the area to the west of the
creek. So a-- So a beach was created that--that we’re looking
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at--that we were looking at in L or K, whatever it was on--
Q K.
A K. That-- That was created under that. So that’s what you call
East Beach because he also de--he also deeded a beach in Sunset
Shores Number 3, which is I don’t know how far down the--the
road, but, it’s another access to another beach that’s in front
of another property. And that’s, historically, been called the
West Beach, ‘cause its west of where we were. But the deed,
itself, I think calls it Beach Number 2.
Q And so, East Beach is?
A Beach Number 1, or East Beach; and then, which it--which was--
which encompasses both sides of the creek and all the way up to
Shore Drive.
Q Okay. I was asking you, Mr. Slingsby, what concerns you have
regarding the proposed re-platting. Do-- Can you-- Can you
think of any other ones? You said you’ve adopted the other ones
expressed by the other members but...
A Well, that--the--the rights issue, as I said. I think there’s
different rights given to different pieces of property, whether
it’s a community beach, you know, where--where the people
without riparian rights have certain things that they can do on
the community beach, not just ingress and egress, and as--as
opposed to the--what the Wormuths are suggesting, which is--
which is just a small walkway. And I--I would contend that
that’s--that walkway is ours anyway or been used by the people
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of Sunset Shores since 1968. I-- I haven’t been down there but
everybody does--everybody’s been using that all the way up and
to the community beach.
MR. HYRNS: I’ll pass the witness, your Honor.
CROSS-EXAMINATION
BY MR. KNOX:
Q Okay, Mr. Slingsby, how are you?
A Good. How are--
Q Good.
A --you?
Q Good. I think I just heard you correctly that you said the
walkway--you--you believe you have rights to that walkway
because everyone’s been using it since 1968, correct?
A Which walkway?
Q Well, you said the walkway that’s depicted in Exhibit A, you
have rights to that anyways because you’ve been using it since
1968, or you believe.
A It looks like-- If you went back to--to, I believe its K, that
would show you--
Q Oh, K.
A --you what--more what I’m talking about. Yes. Everything
that’s--that’s in between the walk-per-plat and--and the deeded
community beach--
Q Yeah.
A --before it was blocked off as--then used.
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Q Okay. So that area there has been used since 1968, correct?
A I would say so, yes.
Q Okay. And I think-- And that’s the area between the walk-per-
plat and the--and the 1968 Judgment, correct?
A If-- Actually, do you have the--the 2007... Not those.
Q Those yours.
A Those are mine too. It’s-- It’s a 2007... Yeah, Exhibit K. If
you-- That actually shows some of the vegetation.
Q Exhibit K?
A K.
Q Okay.
A No, it’s in the book.
Q Exhibit K. Okay, Exhibit K shows the vegetation about-- It
shows the vegetation where?
A It shows the vegetation in the walk-per-plat--
Q Okay.
A --for--from Shore Drive, to about midway down the--down the
walk.
Q Okay--
A So--
Q --so it shows the--it says “walk-per-plat” and it shows
vegetation. You move to the right and it shows the actual area
that was used - that’s the grainy area, correct?
A That, sure. And the-- And--
Q And then--
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A --to the right of it.
Q And then to the right of that is the ’68 Judgment?
A Correct.
Q And to use this blowup so that we can point it out on here,
walk-per-plat is identified here, correct?
A Yes.
Q This doesn’t show the vegetation in the walk-per-plat but it
shows the walk-per-plat, correct?
A Correct.
Q Then it shows the ’68 Judgment here, correct?
A Correct.
Q Then it shows the grainy area between that as identified as a 4-
foot, plus or minus, wide walking path, correct?
A Correct.
Q And it is this walking path that you contend has been used since
1968 or, roughly--you know, you believe used since 1968?
A I contend that that’s part of what’s been used. The whole area
that you can--outlined is what it--is what’s been used.
Q So you believe this whole area’s been used since 1968?
A Yes.
Q Okay. So there actually have been, no obstruction since 1968
for use of the walkway, correct?
A No, I just said that there are some shrubbery in there.
Q And the area then--the whole area was not used as a walkway
since 1968? Which--
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A What’s the question?
Q --is it?
A --question?
Q The question is, has the whole area been used as a walkway since
1968?
A The total area consistently used as a open walkway since 1968?
Q Correct.
A I have-- I’ve-- I only know what I know from 2005 when I’ve been
there.
Q Okay. All right. Okay, let’s take a look then at Exhibit B-4.
And Exhibit B-4 is the correspondence that you sent to the
Wormuths, dated July 6th of 2005. And I have your--
A Okay.
Q --your copy here. Let me grab my copy. Now, Exhibit B-4 was
written by you as President of the homeowner’s association,
correct?
A Correct.
Q And in Exhibit B-4, it indicates that the homeowner’s
association was the owner of an easement, correct?
A I don’t know if it says we’re the owner. Where does it say
we’re the owner?
Q “In meeting and speaking with the survey engineers, they showed
me a survey that clearly delineated the Sunset Shores
Homeowner’s Association’s easement.” Do you see that?
A Yes.
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Q Now, based on your review of all the pertinent documents, I
think you would agree that the association, itself, doesn’t own
an easement?
A You have to explain ownership of an easement to me.
Q Well, you’re very familiar with the 1967 deed of easement, and
you’re very familiar with the 1968 Judgment. Nowhere, in either
of those documents, does it say the association owns the
easement, correct?
A It gives rights to an easement.
Q And it gives those rights to the homeowners who have deeds for
lots in those subdivisions but it does--give--it gives nothing
to the association, correct?
A It gives - and I don’t have it-- I guess--
Q We can--
A --we can--
Q You can take--
A --look it up.
Q --a look. If you wanna take a look and tell me if you can find
in there the homeowner’s association has a deed for the
easement--
A The homeowner’s association owns deeded property, which is the
park, which--
Q Well--
A --is in Sunset Shores.
Q Okay. Well--
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A Therefore, they are deeded property owners of Sunset Shores.
Q The Sunset--
A Without riparian rights.
Q The Sunset Shore properly owners association has a deed recorded
where they are the owners of the park?
A Correct.
Q Do they insure the park?
A We do.
Q Do you insure the walkway?
A I think we do have insurance on some--
Q You got insurance--
A I’m not sure.
Q --on the walkway, okay.
A I don’t know. Do you know what, I do not know. I know we have
insurance on the park. I don’t know what insurance we have on
that. I-- I don’t know.
Q Now, you--it--you said you’ve been surveying these documents for
6 years, correct?
A Yes.
Q And the correspondence you got in response to your letter of
July 6th was also dated July, and it also said that the--the
inquiry is still preliminary, correct? My--
A Would this--
Q --correspondence to you. Well, maybe I’ve got that.
A I think you’ve got that too.
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Q B-9: “I’m in the process of examining the easement referenced
in your letter in order to determine what easements currently
exist as well as the scope of these easements.” That’s what it
says, correct?
A Correct.
Q “While the examination is not complete, there does appear to be
a recorded document that purports to create an easement across
the Wormuth track”, correct?
A Correct.
Q And that would be the 1968 Judgment, correct?
A I don’t know what you’re looking at to make that assumption.
Q Okay. Now, the 1968 Judgment is not valid, is it?
A Are you asking my legal opinion on the 1968 Judgment?
Q What’s your belief? It’s not legal. Your personal belief based
on a review of all these documents and the failure to record an
amended plat after the ’68 Judgment, what’s your belief as to
whether that ’68 Judgment is valid, in terms of amending the
plat? Well, the answer is not back there, sir. The answer is
right there. I’d like your answer.
A Are you talking about ans--the--amending the plat or-- Earlier--
Let me tell you my confusions, Mr. Knox. Is earlier today, you
talked about the ’68 Judgment. In that judgment you said that
there was a--they mentioned the community beach, which was--
which was--they--they threw out the original deed for the
community beach and then replaced it with one. And you, in your
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testimony--or, your opening thing said that shouldn’t be
affected by anything. So, I don’t know what you’re telling me.
Are you telling me that’s--
Q I’m asking--
A --the whole--
Q I’m asking whether you believe the ’68 Judgment effectively
modified the subdivision plat.
A No. I don’t believe it did.
Q Okay. So the modification that’s included in the ’68 Judgment
would not be valid, correct?
A Correct.
Q Okay.
A The modification of the easement that they threw out would not
be valid - the walkway, platted easement. Now the--the
modification of the community beach is a--a different animal and
stated differently in--in the judgment itself.
Q Well, the judgment speaks for itself; but it does two things.
One, it throws out the corrected deed of easement before it,
correct?
A Yes.
Q Okay. And, it also redraws the easement and throws out the
walk-per-plat, correct?
A It restates the community beach.
Q And, throws out the walk-per-plat. It modifies the subdivision
plat, correct?
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A If-- If that’s the--
Q Purportedly--
A --reading of it--
Q --modifies the subdivision plat.
A Right.
Q Okay. When asked the point of all of this is because the doc--
And the documents speak for themselves, and as a matter of law,
regardless of what I say, or you say, or anybody here says, but
for the Court after reviewing those documents, they are what
they are. The point of that is there was some dispute as to
whether that ’68 Judgment was valid, correct? And I-- And--
A There’s
Q --I--
A --a dispute now, yes.
Q Okay. And-- And I mention that because that was pointed out to
you in July of--29th of 2005 as well, correct?
A Yes.
Q And in 2005, or shortly after sending this letter, the Wormuths
did file suit, didn’t they?
A Yes.
Q And they filed suit because--part of the suit was that we wanted
a determination from the Court that the association didn’t own
an easement, because it was you who sent the letter on behalf of
the association as opposed to an individual property owner, do
you recall that?
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A Yes.
Q And, ultimately, do you recall the Court saying, okay, you gotta
bring everybody else in, which is why we’re--here we are today,
everybody--half of the city of New Buffalo’s been named a party
to this suit, correct?
A If-- If that’s what you determine had to be done, yes.
Q Okay.
A I’m--
Q Well, I’m--
A I’m not--
Q I’m asking you as a result of you participating in these
pleadings, isn’t that what happened?
A That’s what-- I believe that’s what the judge said you had to do
to--to go forward with the case.
Q Now, that lawsuit was dismissed without prejudice, correct?
A I-- I don’t know the legal term of it.
Q Well, it’s--
A Okay, if you--if you say so, sure.
Q Okay. And following that dismissal, someone cut down the
Wormuth’s trees, correct?
A They were cut down, some they did.
Q Somebody tore down the fence, correct?
A Yes.
Q And it was only after that, that the Wormuths re-filed their
suit, the suit we’re dealing with now, correct?
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A I don’t know that-- I don’t know the timeline on that.
Q Now, you would agree, would you not, that East Beach is
currently under water, correct?
A No.
Q At some point East Beach was under water, was it not?
A Define East Beach for me.
Q Well, East Beach is the beach on the other side of the creek, on
the north side of the creek.
A Then I would say that you’re wrong in that definition.
Q Okay. Assuming the-- Assuming my letter is a reference to East
Beach.
A Your-- East Beach doesn’t-- The East Beach was changed by the
corrected deed of easement in--in 1967; was enlarged to be the
property that we’re looking at, as well, as property on the
east--
Q Assume my--
A --side of--
Q --use of the word East Beach was a reference to the beach on the
north side of the creek, that part of the beach was under water
at some point, was it not?
A At-- At some point it can be, sure.
Q And it didn’t exist if it’s under water, correct; it’s not a
beach?
A I don’t know the legal definition to that. I would say it
exist. I could stand on it.
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Q Knee-deep in water, though, right?
A If you’d like-- These-- The beach that you’re talking about has
got a lot of revetment on it because of the--the waves. So, you
can tell me, you know, how much of the revetment is beach and
how much of beach is sand and how much of beach is water, but,
to--to say that it does not exist, I would not agree with that
at all.
Q Okay. Now, this is the ’68 Judgment, correct?
A That’s--
Q The area of the--
A That’s a--
Q --community--
A --part of--
Q --beach--
A --it.
Q --created by the ’68 Judgment, part of it--
A Right.
Q --correct?
A The part that you don’t see is the other part. Well--
Q That--
A But--
Q Let me--
A --that’s one--
Q --just kind of--
A --of the--
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Q --change here.
A --problems that we have, is that, you don’t show the total--
Q Let me just cut to--
A --beach.
Q --the chase. Yeah, because--
A Sure.
Q --we’re not dealing with any of this up here. We’re dealing
with this here. This portion that you see here, that is
depicted as the area that was supposedly created by the ’68
Judgment, it’s an easement, correct?
A Again, it’s a legal thing. Its community--
Q Okay.
A --beach
Q Fine.
A --easement.
Q No, that’s fine. That’s fine. Because, if you don’t know the
different between an easement and a fee simple, I don’t know how
you can sit there and say I object because we’re losing
community beach easement; because, if you look at this portion
here, you’re getting community beach easement, plus, fee simple
title. So, the word that you said, your problem you had with--
was community beach easement, I’m having problems with that.
A Is-- Is that a question?
Q This is fee simple title that we’re proposing, do you
understand?
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A Yes.
Q Do you understand that fee simple title provides you, the owner
of a lot in Sunset Shores whatever, greater rights than an
easement?
A You’re granting fee simple ea--easement for ingress and egress
or for any--
Q Fee simple is, you can do anything there the Wormuths can do,
you could do anything there George Salerno could do, and only
because the--because the Wormuths own a lot in Sunset Shores.
That’s what it means.
A And--
Q Now--
A --what’s the--
Q --with that--
A --question?
Q --in mind, do you have a problem with that being designated fee
simple title in favor of the residents of Sunset Shores?
A Are you replacing something with that?
Q This is the current walk. Yeah. Yeah, this is the current
walk. We are changing the easement that provided access to fee
simple title. Do you still have a problem with that?
A Yeah. I believe--
Q Okay.
A --the easement--
Q That’s fine. That’s fine. You’re good.
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A Okay.
Q Okay, you said earlier you had a problem because the way drafted
it, it provided rights to too many people, correct?
A I said, it--it may.
Q And is that a problem?
A Yes.
Q Who, within Sunset Shores Subdivision, should not be allowed to
use the walkway; which of the med--which of the residents should
not be allowed to use the walkway?
A I’m only going with what the community beach, the way it was
deeded, which wa--said to--those without riparian rights. So,
I’ll leave that up to you. Is that the same thing?
Q Well, does that pose a problem for you that other people in
Sunset Shores Subdivisions might be able to use that walkway
that you think they shouldn’t be able to? Do you object to that
on it--on that ground?
A I object to anything that changes the rights that I have of
that--
Q Even if it gives you more rights, you’re going to object, right?
A You just said that it gives other people more rights.
Q Even if it gives you fee simple title over an easement, you’re
going to object?
A If that easement is where you’ve placed it, yes.
Q The original plat shows the walkway-- And the walkway was
actually dedicated to public use, was it not?
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A Yes.
Q We have proposed a walkway, the City of New Buffalo has approved
it, and the attorney general has approved it, and it re-
designates that walkway from public to private; are you aware of
that?
A Yes.
Q So, that private walkway, instead of being able to use--be used
by the public at-large, its be able to used only by people
within the city of--or, within the--the Sunset Shores
Subdivisions; correct, the way we’re proposing it?
A Yes.
Q Do you have a problem with that?
A Yeah. I just-- I just told you I did. The...
Q Let’s talk about the width. You talked about the width of the
walk. The walk-per-plat is 10-feet wide, correct?
A Yes.
Q The area that was identified in the ’68 Judgment is 10-feet
wide, correct?
A Correct.
Q The area that has been proposed as a fee simple title walk is
10-feet wide, correct?
A Correct.
Q The area that has pro--been proposed by the Wormuth is the same
and included in any document that’s ever been recorded that has
identified any walk from Shore Drive down to the beach, correct?
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A I don’t think so.
Q Okay, what document was recorded?
A If you go back to the community beach document, that’s recorded.
And it--
Q And how--
A --doesn’t--that--that space that, you’re talking about does
not--is not part of it.
Q Community beach, community beach document, that’s this. That’s
the ’68 Judgment. How wide is that walk?
A It’s not a-- I contend that it’s not a walk, that it’s part of
the beach.
Q Well, I’ll tell you this. If you actually look real close - I
just noticed this - this walk--this walk--this easement that’s
set up 9.98 feet. In a technical sense, you’re getting an extra
.02 feet. Only to show that the width of what the Wormuths are
proposing is the width of what you say you want. Would you
agree with that?
A No. I am saying that what--
Q You don’t need to explain. If you--
A Okay.
Q --don’t wanna agree with that--the Wormuth’s 10 feet is the same
as somebody else’s 10 feet, that’s fine. Okay, you had a
photograph that we need to take a look at. Yep, that’s it.
Okay, for clarity purpose, photograph B-8, that was taken after
the front evergreens were cut down in front of that--the
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building, correct?
A Yes.
Q And it was taken after somebody tore down the Wormuth’s fence,
correct?
A Yes.
Q And it was taken after somebody cut down the Wormuth’s trees?
A Yes.
Q If we designated this area as easement and said, okay, Sunset
Shores homeowners, you don’t get fee simple title, we’re gonna
do what Mr. Slingsby says and we’re gonna designate this as
easement, less than the fee simple title, and we’ll acquiesce to
Mr. En--Mr. Slingsby request and we’ll say community beach; so
Sunset Shores homeowners, you don’t have fee simple title to
that property. You have an easement and that easement is
limited in scope to, quote, community beach. So we’ll do it
your way. Let’s assume that. Would you withdraw your
objection?
A I would not.
Q Okay. Good enough. Say, Exhibit L in your book you mentioned
plantings that were located--or, maybe not Exhibit L. It was
Exhibit K, plantings that are located in the walk-per-plat. Did
the Sunset Shores Homeowners Association ever maintain the walk?
A The walk-per-plat?
Q The-- The walk that is being used. The walk that was used in
’68, ’75 and ’85 and ’95 and 2005, did they ever maintain that
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walk?
A Yes.
Q And would you agree that if the walk is designated, particularly
as a fee simple area, that the association would have the right
to clear that area from any brush or overgrown vegetation that
may impede it?
A Yes.
Q Did you hear Mr. Lieberg’s testimony that in preparing Exhibit
A, in the beach portion of Exhibit A, he identified all of the
area that is currently being used as the beach; did you un--did
you hear him say that?
A Yes.
Q Do you have any drawings that show that he was incorrect in
designating a portion of the ’68 Judgment that was used as the
community beach?
A Yes.
Q Okay, where are those drawings?
A You go back to either K or--or L. Either of those you can see
where it shows the community beach itself.
Q Well, and--and we’re getting that. So we’re clear here, I’m not
referring that this was community beach because you have more
than community beach, you have fee simple title. I’m referring
this to this as the beach; this area, the beach area, not a
legal term community beach, not a term of, our community beach.
I’m talking to area where people actually sit and put chairs.
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Do you have any doubt that Mr. Lieberg incorrectly identified
the area that is used as a beach on Exhibit A?
A Yes. Looks like smaller than what shows up in K.
Q Okay, looks smaller. And that’s just based on your--your
eyeballing it?
A Yes.
Q Okay. And you’re not a survey (sic), correct?
A I am not.
Q You didn’t redraw any plat, correct?
A Correct.
Q And you heard Mr. Lieberg say he went, staked it, surveyed it
and came up with that and said this is the area that’s the
community beach; did you hear him say that?
A Yes.
Q And did you hear him also say that he took that line and that
line from the 1968 Judgment?
A I heard him say that he decided where the community beach
stopped and then made it--made the rest a walkway, which--
Q That’s okay.
A --I didn’t think was--
Q It’s alright.
A --right at all.
Q So he says you either get it as community beach or you get it as
walkway; you either get it was easement or you get it as fee
simple, but, you get it.
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A But not in that position.
Q Okay, different position. No doubt. But, other than the
position, the beach, you get, correct?
A We’re calling the beach two different things. It’s not the--
Q Talking--
A --beach--
Q --about--
A --like--
Q --the-- Not a term of art. I’m talking about the area that’s
actually used as a beach.
A I think you are using it as a term of art. It is-- The whole
area was designated as a community beach.
Q This is area that is used as a-- I guess-- Let me get to the
point, okay. You believe the whole area is-- Well, we’ll do it
this way. This whole area you believe is community beach,
correct?
A Correct.
Q Okay. Which means, the area sitting beside the Wormuth’s shed,
that’s the beach to you, right?
A Yeah. That’s what it was--
Q Okay.
A --designated as.
Q And that’s beach right there?
A Yes.
Q And that’s the beach right there?
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A Yes. And if the water comes up all the way to--to next to the
shed, that’s gonna be the only beach that we have.
Q Okay. So you just believe this is all beach?
A (No verbal response)
Q So--
A Only because that’s the way I read it in the--in the legal
document.
Q Okay.
MR. KNOX: And to be clear for the record, the witness
identified the area immediately to the west of the 10 by 12
woodshed that’s located approximately 5 feet off of Shore Drive,
7 point--a little--about 8 feet off of Shore Drive. The witness
identified that as the beach.
MR. DEFRANCESCO: What exhibit was that?
MR. KNOX: That’s Exhibit L.
BY MR. KNOX:
Q And based on that, you object to the Wormuth’s proposal?
A That, and the other things I said. Now, if you wanna look at
that--at that--at the eastern line of that, you can tell me how
that eastern line is--is different from the proposal that you
have and you can see how it affects the total beach.
Q Would you agree that if the fee simple title is provided that it
is not a limitation on ingress and egress?
A I don’t--
Q If you have fee sim--
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A I don’t have the legal background to tell you that. I don’t
know.
Q Okay.
A Are you telling me that we have as much--we have we--
Q I’m--
A --can use--
Q --asking--
A --it as a community beach?
Q Well, you’re objecting. You’re objecting. So I’m--my--my
question for your objection is, you’re objecting because the
Wormuths are giving you more of a property right than you
currently have and I’m trying to fathom that out. I’m trying to
understand why that would be an objection. I don’t-- I mean--
A Hey, if you wanna make the community beach the way it is now,
fee simple, I don’t think I have an objection to that, and we--
Q Oh, but--
A --the way that it is.
Q You want this fee simple, you just don’t want that fee simple?
A No, I want the whole thing fee simple. I wanna be able to use
it as a community beach. Actually, I don’t want it to be fee
simple. I want it to be a community beach.
Q Community beach designated as an easement.
MR. KNOX: Could I have one second here, your Honor?
THE COURT: (No verbal response)
MR. KNOX: All of my questions, your Honor. Thank
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you.
THE COURT: I have a question for you. Go to Exhibit
L. Okay. And there are three separate designations. One is
the 1968 Judgment. And you’re calling that a--the whole thing,
community beach, and that’s in squares, correct?
THE WITNESS: Correct.
THE COURT: Okay. Now, on the far left is the walk-
per-plat. And you claim that you’re entitled to both of those?
THE WITNESS: I-- I claim that we’ve been walking on
it. That-- That’s been open since ’68, and probably before.
THE COURT: Are you claiming that you have a right to
use that?
THE WITNESS: Yes.
THE COURT: Okay, and on what basis?
THE WITNESS: Prescriptive easement.
THE COURT: Okay. And then, between those two,
there’s a few more feet. Are you-- Looks like its designated 7
feet.
THE WITNESS: It does. Yes.
THE COURT: Okay. And what do you claim about that?
THE WITNESS: The same thing. That’s-- That’s--
THE COURT: Okay. And you’re--
THE WITNESS: For most--
THE COURT: --claiming--
THE WITNESS: --of the time, that’s been--Once they
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put their fence up, we had to be--use that--
THE COURT: Okay.
THE WITNESS: --as well.
THE COURT: So you’re claiming that you have a
prescriptive easement in that as well?
THE WITNESS: Yes.
THE COURT: Okay, so you’re claiming that--that there
is, roughly, almost 30 feet in width that you’re entitled to, on
one of those theories, am I correct?
THE WITNESS: Yes. If-- If the-- Well, I didn’t--to
tell you the truth, I didn’t think of anything about the walk-
per-plat till they were saying that it wasn’t done right. I
mean the ’68--
THE COURT: Well, I’m just asking--
THE WITNESS: --Judgment--
THE COURT: Okay, I’m just--
THE WITNESS: --threw it out.
THE COURT: --asking you what your--what you’re
testifying here today.
THE WITNESS: Yes, that open space, the space that’s
been used by--by the people of Sunset Shores, from all this
time, from the deeded access to the--the place in the walk-per-
plat that has been overgrown and used forever as the boundary
for Lot 24, has been used by us.
THE COURT: Okay. So you’re claiming that you’re--
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that there’s, roughly, a 30-foot wide right that--that you have?
THE WITNESS: Well, if--if you throw out the ’68
Judgment that took away the walk-per-plat, then I would have to
say that, yes.
THE COURT: Well, I’m asking you what your--what--
THE WITNESS: Well--
THE COURT: --your plan is.
THE WITNESS: --I’m--my plan--
THE COURT: What--
THE WITNESS: --is--is that--that most of this walk-
per-plat has not been--not been used by us because of--
THE COURT: So you’re saying--
THE WITNESS: --it’s been--
THE COURT: --you do not--
THE WITNESS: --been grown.
THE COURT: --have prescriptive easement in that
property?
THE WITNESS: To the extent that--that it’s been
overgrown, yes.
THE COURT: Okay. So you’re giving--you’re saying
that you--you’re saying you do not have a prescriptive easement
on the part--
THE WITNESS: Yes.
THE COURT: --that’s overgrown?
THE WITNESS: Right.
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THE COURT: Are you saying you have a prescriptive
easement on the rest of the walk-per-plat that’s not overgrown?
THE WITNESS: Yes.
THE COURT: And then you’re claiming a prescriptive
easement on the part, between the walk-per-plat and the 1968
Judgment?
THE WITNESS: Yes.
THE COURT: And then you’re claiming that the part on
the right side, that you--that’s part of the--part of the light
property that you’re entitled to?
THE WITNESS: Yes.
THE COURT: The beach?
THE WITNESS: It’s the--
THE COURT: Okay.
THE WITNESS: --the deeded--actual deeded--
THE COURT: Okay. I think I understand.
THE WITNESS: --community beach.
THE COURT: Okay. Thank you.
THE WITNESS: Thank you.
THE COURT: Mr. Hyrns, did you have anything further?
MR. HRYNS: Nothing further--
THE COURT: Okay, you--
MR. HYRNS: --your Honor.
THE COURT: --may step down. Thank you.
THE WITNESS: Thank you.
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(At 4:14 p.m., witness stepped down)
MR. HYRNS: Your Honor, I rest.
THE COURT: Okay.
MR. KNOX: Actually, we’ve got--we got one rebuttal
witness and then I think Mr. Scherbarth wants to address the
Court as well on behalf of the Attorney General.
We would call Alice Little to the stand.
THE COURT OFFICER: You solemnly swear or affirm the
testimony you’re about to give in the matter now pending before
the Court shall be the truth, the whole truth, nothing but the
truth, so help you God?
MISS LITTLE: I do.
THE COURT OFFICER: Thank you. You may be seated.
ALICE LITTLE
called by the Plaintiff at 4:14 p.m., sworn by the bailiff,
testified:
DIRECT EXAMINATION
BY MR. KNOX:
Q Would you introduce yourself to the Court, please?
A My name is Alice Little and I live at 1151 Shore Drive with my
husband Michael.
Q Okay. And 1151 Shore Drive is in Sunset Shores Number 5?
A Yes, sir.
Q And what lot?
A I’m not sure of the number but it’s directly across from the
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beach path, right on the curve--
Q Would--
A --directly--
Q --that be--
A --acro--
Q --Lot 14?
A Yes.
Q Okay.
A Yes.
Q And I think you said that’s directly across from the walkway to
the beach?
A Yes, sir.
Q How long have you lived in that location?
A This is our 11th year.
Q And are you familiar with that location other than by having
lived there for 11 years?
A Yes.
Q How are you familiar?
A My-- I married my husband in ’67 and we began coming up here.
Aunt Myrtle lived at the house we’re in now. She didn’t live at
that address, though, until the 80s, but we did--we are familiar
with the area.
Q Okay, she lived in--
A Sunset Shores. She did live on Lake, several houses on--
Q Okay.
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A --Lake before she moved to 1151 Shore.
Q So your Aunt Myrtle lived at the house on Lot 14 from the early
1980s forward?
A Yes.
Q Okay. And--
A Till 2000.
Q Until 2000. And then you took the--
A We--
Q --house?
A --bought the house.
Q Is it fair to say, from the early 1980s forward, you are
generally familiar with the conditions of the walkway?
A Yes, sir.
Q Okay. Would you take a look at Exhibit N? Okay, Exhibit N is
what?
A It is the pathway that’s been used for over 40 years. And I
believe it looks pretty much the same except, when we first
started coming, these junipers were here, there wasn’t grass,
there was, like, seaweed and lots of sand in it. I remember it
being much higher when--when I was younger.
Q Okay. And when you say-- That’s back when you were visiting
your Aunt--
A Yes. It would be like 44 years ago.
Q Forty years or so ago?
A Yes.
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Q Okay. So, as of 40 years ago or--or so ago, you recall the
junipers in photograph Letter N?
A Yes. And there was also mugho bushes down below that, and
later, like, I wanna say, in the 90s, I remember seeing--
remembering those by the railroad ties. I remember those there.
But I don’t remember these big tall trees. I think they came
later.
Q Okay. If you’ll take a look at Photograph S.
A S. Yes.
Q Now, down on the outside of the rail ra--the--the railroad ties,
on the outside, there are some bushes that appear to run the
length of the back of the Wormuth lot; do you see those?
A Yes, I do.
Q Do you know when, approximately, you first recall seeing those--
A I think--
Q --the shrubs in--
A --that was--
Q --that area?
A --in the early 70s when they put those in; I remember seeing
them.
Q Okay.
A But I don’t remember these, the smaller ones. I don’t remember
those.
Q Very good.
MR. KNOX: No further questions.
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THE WITNESS: Okay.
MR. KNOX: Thank you very much.
THE WITNESS: You’re welcome.
THE COURT: Whoa.
MR. KNOX: Well--
THE COURT: Whoa.
MR. KNOX: --hang on. I think somebody may have--
THE WITNESS: Oops.
MR. KNOX: --some questions for you.
THE WITNESS: Okay.
THE COURT: Mr. Hyrns, any questions?
MR. HYRNS: No questions, your Honor.
THE COURT: Okay, you may step down.
THE WITNESS: Thank you.
(At 4:18 p.m., witness stepped down)
MR. KNOX: We have no further rebuttal on the
modification of the subdivision plat.
THE COURT: Thank you. Mr. Hyrns, anything further
from you?
MR. HYRNS: No-- No, your Honor. Thank you.
THE COURT: Okay, you wish to say something?
MR. SCHERBARTH: Yeah, if I may, your Honor, just
briefly. Well, actually, I shouldn’t say that. I’m a lawyer.
Forgive me.
As you know, your Honor, my client - it--it’s really
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the Department of Licensing and Regulatory Affairs - is the
party responsible for approving any amended plat that may come
out of this proceeding. So, once--if this Court were to vacate
a plat, change a plat in any way, it has to be submitted to my
client for purposes of their approval and then it goes into the
state records. That’s why my client is here and has been--and
that’s why the Land Division Act requires my client to be in the
part--in this case.
Occasionally, I represent the Department of Natural
Resources, the Michigan Department of Transportation in these
cases when they might have a personal interest, but they did not
in this case. It’s-- It’s only the--the quality and--and the
integrity of this plat.
Briefly, your Honor, this--the plat act that we are
in--in--involved here, the Land Division Act, goes back to the
territorial laws of this sta--of this state. We started
platting in 1821, before Michigan became a state and the reason
is for the--well, to avoid the problem that this Court is seeing
today, where neighbors pitted against neighbor, so that the plat
is clear, so that when you have a plat – and we don’t plat
everything – but when you have a plat, it’s clear and concise
and it’s identifiable and people can rely upon it.
In the context of this case, in 1961 Sunset Shores
Number 1 was platted, according to this act, the original--or,
an act that predated the current Land Division Act. And in that
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act there was a public walkway, dedicated to the public, that
did, basically, go, as I understand from what people are saying,
basically where the current people are using the walkway. A
little bit shifted, perhaps, but basically there. There was no
public beach that was in that 1961. It was just a walkway that
went to the creek, actually, and did give access through the
creek to the--to the lake.
In 1968, as this--as this Court has been informed on
numerous times and as is in the record in this case, Judge Byrne
of this Circuit did vacate the original walk--public walkway -
although the Order is a little bit off. It called it an
easement. It’s-- To be distinguished, it’s a public walkway--it
was a public walkway. It was vacated in that Order, and therein
lies the problem. And, as of 1968, when that Order was entered,
the Land Division Act, which was amended--or, I’m sorry, that
was actually--that’s in existence today and became effective on
January 1st of 1968, required that any plat that is amended by a
Court must submit an amended plat. Why, to avoid this problem.
It wasn’t done. I don’t know why. But, nevertheless, for
whatever reason, the party who was successful in this endeavor,
to vacate this plat, chose not to file an amended plat with the
state. Consequently, the plat that is on file is the 1961 plat,
with a public right-of-way, called a public walkway. So, when a
party who’s impacted by the subdivision wanted to find out what
the nature of their property was, the best they can do is go to
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the state records, see the subdivision plat, and it’s got an--a
walkway that is public and it’s 10-feet wide in a specific
location. It should’ve been changed. It was not. It created
the problems in this case.
What I urge this Court to do, whatever you do-- And
I’m not taking a position on behalf of the State where that
walkway is, with one exception, I urge this court to be
definitive in issuing an order that clarifies where any walkway
might be, and then, include in that order as Section 229(1) of
the Land Division Act requires, order an amended plat to be
filed with my client that depicts what you have ordered as far
as the vacation and any--any switching of that particular lot
and--and that plat.
The one caveat that I--that I add, I am the attorney
for all of the state agencies. I happen to personally represent
the DEQ and the DNR. I heard testimony that this may be a
critical dune. That could implicate my client’s concerns for,
not that they’re parties to this case, but, to the extent
there’s a critical dune, to the extent that there’s something
done at that critical dune, my client may have an interest, I
wanna let this Court know that to the extent anything happens
that will impact that, I am duty-bound to inform my client so
that they can take a look at this and make sure that there’s no
harm done to the dune, at that point, if, in fact, it is a
critical dune regulated by state regulations. People don’t like
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state laws, they don’t like regulations. But, your Honor, the
Land Division Act, had it been complied with in 1968, would’ve
prevented a lot of heartache, a lot of concern by a lot of
neighbors and would’ve clarified what the Wormuths own, what the
Salernos own, and where the ingress and egress to that beach is.
Thank you, your Honor.
THE COURT: I-- I just have one point.
MR. SCHERBARTH: Sure.
THE COURT: And I don’t know if this is within your
area. But, if a--if--since a judgment was not recorded as part
of the plat, does--is there any aspect of the judgment which can
be effective outside of the plat?
MR. SCHERBARTH: Your Honor, that’s--
THE COURT: I mean, if--
MR. SCHERBARTH: --not--
THE COURT: --we can--
MR. SCHERBARTH: --something I’m--
THE COURT: If that’s not--
MR. SCHERBARTH: --terribly conversant with.
THE COURT: Okay. That’s fine.
MR. SCHERBARTH: I would-- We assert and we promote
the Land Division Act and--
THE COURT: Sure.
MR. SCHERBARTH: --that it should be complied with,
etcetera. Whether or not a ’67 easement that was vacated by a
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’68 Order that created another easement has a valid easement for
purposes pertinent to land--the land--property law, I am not
absolutely certain.
THE COURT: Okay.
MR. SCHERBARTH: I’ve not researched that, your Honor.
THE COURT: Thank you.
MR. SCHERBARTH: So, anything--
THE OCURT: Okay--
MR. SCHERBARTH: --else? Thank you, your Honor.
THE COURT: Anybody else have anything you wanna say
at this point? Okay.
I am gonna have to go out and see this property at
some point. I can’t do it the next two days ‘cause I’m gonna be
out of the community. And you might-- I don’t know if--if you
want to go or do not want to go. Of course, you have a right to
be there if you choose to do so, and so, when you come back,
we’ll talk about those arrangements and how--how you wanna
handle that.
Mr. Knox, do you have anything further you want to say
at this point?
MR. KNOX: Do you wanna hear closing arguments, your
Honor, or--?
THE COURT: I don’t think at this point.
MR. HYRNS: I’m willing to waive closing, your Honor.
THE COURT: Okay, well, I’ll--I mean, you--you’re
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gonna come back on Friday with--
MR. HYRNS: Well, we do have a question regarding
that, your Honor; and maybe the counsel can meet with you in
chambers to discuss.
THE COURT: Well, we have some people representing
themselves who’d be entitled to be present as well. So I think
it’d be better--
MR. KNOX: Yeah, ah--
THE COURT: --off just to do it here.
MR. KNOX: I-- Judge, actually what we would prefer to
do, with the leave of Court, would be to, again, resolve the
issue involving the modification of the plat before we get into
the la--into the adverse possession side of the claim.
Friday might be a good time, if the Court would be
inclined, to go look at the property in lieu of taking
testimony, and then, if we could get some ruling out of the
Court on the Land Division Act side of the case before we go to
the point of taking testimony on the--
THE COURT: Okay, I’m gonna--
MR. KNOX: --adverse--
THE COURT: --ask you--
MR. KNOX: --possession--
THE COURT: --you to give me some briefs on some
points if--if that’s what you want me to do.
MR. HYRNS: Your Honor, we do concur. We think that
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it would be a potential duplication of effort if we do go to
trial on Friday. So we are gonna ask the Court to take this
matter under advisement, and if the Court needs some briefing,
we’d certainly be able to do that. But, we would respectfully
request an adjournment, then, from the proceeding that we were
scheduled to do on Friday until after this Court’s ruling.
THE COURT: Okay. Is there anybody in the courtroom
who objects to following this procedure? Okay, no one seems to.
Okay, then, Friday then you’re gonna want me to go
out--take that time on Friday to go out to visit the scene.
Okay.
MR. KNOX: That will be great.
THE COURT: And I don’t know if you wanna come here or
meet out there. I can prob-- I’d probably be available most of
Friday. I’d probably prefer to do it in the morning. But the--
MR. HYRNS: I would suggest that the Court tells us
the time, your Honor, that we will make ourselves available at
the site if the--if we desire to be there.
THE COURT: Okay. I’ll have Miss Burton give you a
call. Yes?
MISS LEMONNIER: Who’s allowed to come on Friday?
THE COURT: Well, any--you are, because you’re
representing yourself, and the attorneys are. But anybody who’s
representing themselves is entitled to come. And-- And if you
do want to come, if you’ll give Miss Burton your telephone
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number so can reach you; and, of course, the attorneys are--are
entitled to come. Okay. And so that’s what we’ll do on Friday.
And then you--I’d ask you to-- I-- Whenever you decide you wanna
get your briefs in, if you need a time--timeline--if you wanna
agree on a timeline, that’d probably be fine with me.
I mentioned one of the issues I’d like for you to--to
discuss, make sure I understand that--that part.
MR. DEFRANCESCO: Pardon, your Honor? What issue was
that?
THE COURT: Well, the--if-- And this may be already
clear it’s just not--I just hadn’t really focused on it, and
that’s the 1968 Judgment that was not platted. Does the fact
that it’s not platted cause it to have no effect at all? And I
don’t know if it’s mentioned in any of the deeds to any of the
property there. I-- I don’t know what it is. So, I’m just--I
don’t know the answer to it and it may be a very simple answer,
I don’t know.
Anything, that, anyone else has? Okay, so Friday
you’ll--you’ll give me either, you’ll give me a briefing
schedule or--
MR. KNOX: Schedule?
THE COURT: --I’ll tell--give one to you. If you--
MR. KNOX: Okay.
THE COURT: If you can agree on it, that’ll be fine
with me. Other than that, we’ll meet--Vivian will get in touch
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with you as to when we’ll--we’ll meet out there to go--to--to
look at that. Okay, thank you very much.
MR. HYRNS: Thank you, your Honor.
(At 4:31 p.m., court proceeding concluded)
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STATE OF MICHIGAN) )COUNTY OF BERRIEN)
I certify that this transcript, William and Gayle Wormuth versus
Arlene Pokuta, Secretary of Sunset Shores, et al. File Number 2007-
0127-CH, consisting of 272 pages, is a complete, true and correct
transcript, to the best of my ability, of the proceedings and
testimony taken in this case by Vivian V. Burton, CER-3572, on
Tuesday, September 13, 2011.
March 21, 2012 Vivian V. Burton, CER-3572BERRIEN COUNTY TRIAL COURT811 Port StreetSt. Joseph, MI 49085
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