In a 2-2-3 opinion issued on December 30, 2008, the Michigan Supreme Court issued its opinion in Tomecek v. Bavas, upholding the plaintiffs' right to use a "drive easement" for utilities, but reversing the Court of Appeals' holding that Michigan's Land Division Act (LDA) gives trial courts the authority to alter substantive property rights. Disclaimer: WNJ represented the prevailing plaintiffs in this action.

The case involved a parcel that required an easement across neighboring property for utility connections. In a published opinion, the Court of Appeals held that the plaintiffs were entitled to such an easement, either through use of the LDA, or via an easement by necessity for utilities, an expansion of the common law easement by necessity for landlocked parcels. The Court unanimously agreed that it was unnecessary to reach the question of whether an easement by necessity for utilities should be recognized in Michigan, and that part of the Court of Appeals opinion was vacated. Five Justices - Chief Justice Taylor and Justices Kelly, Young, Corrigan, and Markman - also held that the LDA could not be used to alter substantive property rights. But four Justices nonetheless held as a matter of law in favor of the plaintiffs, concluding that the original grantors in the plat intended that a "drive easement" already servicing the vacant property could also be used for utilities. Accordingly, the plaintiffs prevailed.

As Justice Cavanagh points out in his opinion concurring and dissenting in part, the majority's LDA holding is curious. The Court has previously stated that MCL 560.226(1) is the exclusive remedy for landowners seeking to vacate, revise, or correct a private dedication. Martin v. Beldean, 459 Mich. 541, 542-43; 677 N.W.2d 312 (2004). And vacating a dedication on a plat certainly alters property rights. If Section 226(1) is the "exclusive" way to make this change, then the statute must have the power to alter substantive property rights. Given the majority's holding, however, that may no longer be the case, and a legislative fix may be required.