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News from the Keweenaw Peninsula October 8, 2001 Photos (except as noted) and Text © 2001 Michele Anderson

Easement, bridge may jeopardize grants for mouth of Gratiot purchase

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Page 3: Griffiths say easement related to legal battle over access

At the NWC meeting, Griffith and his wife Jane, NWC secretary/treasurer, gave a background of their decade-long legal case with Tolksdorf, who sold the residential properties in Section 12 and then sued the Griffiths for access through their property via a road on the north side of the Gratiot River. The Griffiths believe this case ties in closely with the current easement issue. (According to the Trust Fund grant application, the county road on the south side of the river would be improved for access to the proposed county park.)

North Woods Conservancy President John Griffith and his wife Jane, NWC secretary/treasurer, summarize for NWC members and visitors the court case the Griffiths, NWC, the Foley family and Allouez Township won against Glen Tolksdorf to protect the historic uses of a road through their property. Griffith, who is holding a map to illustrate the claims in the lawsuit, said he believes the case is related to the present easement issue in Keweenaw County's potential purchase of land at the mouth of the Gratiot River.

John Griffith drew a map to illustrate the location of the Griffiths' property (purchased in 1991) near the Gratiot River in Allouez Township as well as an adjacent parcel owned by NWC since 1993. (NWC has paid taxes on this property every year.) He also drew in a road passing through his property and leading to the mouth of the Gratiot River.

"On its way to the mouth of the Gratiot River, it dips into Section 12," he said.

Section 12 is now owned by several parties who are interested in this access issue, he explained.

"When we purchased our property we recognized that there was a two-track woods road leading through it to the mouth of the Gratiot River; another fork of that road led to what is called the old Taylor Farm (now owned by the Foley family)," John Griffith noted. "At the time, before we purchased our property, we saw those two tracks down there so we researched the issue in all ways and determined that there were no easements across it benefiting Section 12. So that means that the day that we bought our property we could have -- in retrospect maybe should have -- gated or bermed off that road and just shut off access."

John Griffith explained that blocking historic access was never his or Jane's personal philosophy and never would be, since they wanted to maintain the status quo of providing public access to the mouth of the Gratiot and the access to Section 12 for historic recreational and timbering purposes. After the Griffiths purchased their property, Glen Tolksdorf purchased a small part of Section 12.

"Glen Tolksdorf, before he purchased (this) property, asked us for an easement to access his property for the purposes of unlimited residential, commercial and industrial development -- including a 33-foot-wide paved easement utility along this road through our property, which is a total of 1.1 mile," John Griffith said.

Since the Griffiths had not purchased their property to have a highway going through it to service up to 22 lakefront homes and unlimited further development, their attorney advised Tolksdorf that he had their permission to use this road -- either fork -- to access his property for any use consistent with the historic recreational and timbering purposes.

"After we advised Mr. Tolksdorf that he did not have access for the purposes he desired, he purchased (land in Section 12) anyway and proceeded to advertise and sell lots to people -- advertised with private road access. He did not disclose (to the people), as he admitted at trial … that there was no access or that access was even in question," John Griffith noted.

Disturbed by improvements made to the road without their permission, the Griffiths put up a gate, John Griffith continued. Tolksdorf took down the gate twice, an action to which he pled no contest and was convicted in Keweenaw County Court. Later, when the Griffiths hired someone to stick with the gate, Tolksdorf sued them, claiming an easement and claiming they were obstructing his rights. The local court found he did not have an easement for any purpose and that his access was at the Griffiths' discretion. The case involved a 19th-century law, the Opening of Private Roads and Highways Act, which authorizes a taking of private property for another's predominantly private purpose.

"We said in court and say to this day that he has rights of access across our property, or he has our permission certainly, for any historic recreational and timbering use, but nothing beyond that," John Griffith added. "The local court found that (Tolksdorf) owned no easement and the Opening of Private Roads and Highways Act did not apply because he did have access. He and the other lot owners by that time did have access to their property, albeit not for unlimited uses. He appealed to the state Appeals Court, and that three-judge panel found that he did not have an easement but that it was possible that that Opening of the Private Roads and Highways Act applied."

The Appellate Court stated in a footnote to their ruling that, while they considered the Opening of Private Roads and Highways Act to be unconstitutional, they had no authority to change the law; and so they advised the defendants in the case -- the Griffiths, the North Woods Conservancy, the Foley family (adjacent landowners) and Allouez Township (all of whom were sued by Tolksdorf) to appeal to the Supreme Court of Michigan on the constitutionality of the Act, because the Act could allow not only the establishment of an easement where one does not exist but the expansion of an easement to any purpose over any road.

In May 2001, the Supreme Court ruled the act unconstitutional because it does not predominately serve the public interest but rather uses the state's power of eminent domain to convey an interest in land from one private person to another.

John Griffith added that he and Jane have empathy for the "innocent buyers" in Section 12. He noted the problem with the easement attached to the mouth of the Gratiot River sale to the county is similar to what he and the other defendants were concerned about.

"It's not about what is planned for Section 12. That's their business. It's about what will happen to the land the easement crosses, in this case the proposed county park. That is the issue," Griffith explained.

According to Tolksdorf, most of the land of the Trust Fund purchase is on the north side of the river.

"The county would like to put a road on the north side for camping," Tolksdorf said. "The only way for the county to get to the north side is by building a bridge, unless John Griffith gives the county an easement. With this easement in place, the landowners in Section 12 can help the county in building a road through their park on the north side -- which would also access our property."

Unable to attend the Oct. 1 meeting with NAWCA representatives, Tolksdorf sent a letter, dated Sept. 30, to the County Board, with several questions for NAWCA, and asked that it be read at the meeting. One of his questions was "Can the county put in a fully accessible public park including vehicular access, handicap accessible fishing dock/pier at the mouth of the river, vehicle drive-up camp sites, water pump, vehicle bridge across the Gratiot River and outdoor toilets?"

Although Tolksdorf said he understood the NAWCA representatives did not answer his questions directly, John Griffith said they did.

First of all, Griffith said the county plans only primitive camping on the south side of the river, which is upland.

As for a "fishing dock," Griffith noted the NAWCA people said it's not practical to put any kind of floating or permanent structure in the river or the lake because of storms on the lake and flooding of the river in the spring.

In his Sept. 30 letter, Tolksdorf also writes, "Anything with the term 'wetlands' attached to it, is going to prohibit the county from developing the mouth of the Gratiot River into a public park for vehicular access to go picnicing [sic], fishing and camping. Not only does the county admit that the mouth of the Gratiot River is mostly wetlands (which it is not) by accepting these free monies from federal sources, it will place several new federal and state wetland regulations on that region only allowing a few kayakers and walk-in hikers. I believe this is not what the county is trying to accomplish here."

Tolksdorf adds that the IP/LSLC easement "is not only for our use, but also county use. The easement will also help the county save several hundred thousand dollars in road development costs for the park, with the help of myself and six other families."

The Griffiths explained to NWC members how they worked to partner with other groups to raise the NAWCA funds for the Trust Fund grant match and that the NAWCA grant allows all the recreational activities mentioned in the Trust Fund grant application -- hunting, fishing, hiking, camping, kayaking, moving and improving the road on the south side of the river and having porta-potties (or outhouses).

Jane Griffith noted that, while a primary purpose of the NAWCA grant is wetland and waterfowl protection, "another primary purpose of it is public access."

John Griffith added that the NAWCA grant for the Trust Fund match is just the beginning of a project, supported by both state and federal legislators representing this area, to preserve land for public access. The easement proposed for the mouth of the Gratiot property could cancel the entire Phase II of the NAWCA grant, he noted, because the county and the other partners are such a big part of the grant, which includes eight other projects in the Upper Peninsula.

"If (the easement) cancels even just a part of the NAWCA grant," John said, "it will preclude Phase III, Phase IV, Phase V, and the opportunity to expand the county park at the mouth of the Gratiot."

He noted also that the idea of a greater Gratiot River preserve, discussed at Allouez Township Land Use Planning Committee meetings, is supported by several groups -- including the Mott Foundation, Trout Unlimited, the Conservation Fund and the National Wildlife Federation.

"It would make just a fantastic park for Allouez Township," he said. "If there is a bridge across the Gratiot River, you can kiss that whole idea good-bye."

John said NWC's philosophy is not opposed to timbering, development or "paying taxes." The conservancy is in favor of "preserving, at a landscape level, ecosystems and access."

He noted the recent enthusiasm for land use planning and public or conservancy ownership of "the jewels" of the Keweenaw Peninsula was generated by the fact that IP/LSLC has begun to sell off land used by generations for recreation.

"If IP planned to keep the land and continue their timbering, organizations like the NWC would not need to exist," John Griffith said. "But they are selling, and the public wants to buy. If this last-second easement is included in the sale, it will cost the public at least hundreds of thousands of dollars, and perhaps the park itself."

Return to Page 2: County Commissioners divided on easement issue

Return to Page 1: Easement, bridge may jeopardize grants for mouth of Gratiot purchase

Note: See John Griffith's Oct. 4 "Letter about the Mouth of the Gratiot." Also, read more about the North Woods Conservancy on their Web site.