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Red Run Drain easements

July 5, 2013

Macomb Circuit Court
May 14, 2013
v No. 307742
http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130514_C307742_43_307742.OPN.PDF

The drain at issue in this case was constructed as part of the
Federal Flood Control Act of 1970.
As such, it is subject to federal rules.
But because the drain is a Chapter 21 drain, the
Michigan Drain Code of 1956 is also applicable.

Why doesn’t the State of Michigan and the Federal Government
just complete the Red Run Bike Trail linking all the trails together ?
Mark Hackel as Macomb County Executive should push this initiative.
He has openly discussed at the Mackinac Policy Conference, a regional focus.
https://redrundrain.wordpress.com/2013/01/19/red-run-inter-county-trail-corridor/

The relevant provisions of the Michigan Drain Code provide:
The commissioner or drainage board may use, enter upon
and preserve such easement or right of way for maintenance of
the drain and any other lawful activity with respect to the
same not requiring a larger or different easement or
right of way and may exercise any rights granted in the written
easement or right of way on file in the office of the commissioner.
[MCL 280.6.]

The easement exists to access the drain
with its vehicles and equipment, patrol,
respond to emergency situations, and perform routine
maintenance. Routine maintenance includes mowing;
weed control; and the removal of snow, debris, trees,
and vegetation. The United States Army Corps of Engineers
(USACE) and its subcontractors also use the easement
for federally funded projects.

The relevant portion of the easement granted to the United States:
– a perpetual and assignable easement and right-of-way in, on,
under, over, and across the land for the following purposes,
to construct, occupy, maintain, repair, operate and patrol
Red Run Channel, together with the rights to dig or cut away,
and remove therefrom any and all of the land
within the limits of the right-of-way and the right to trim,
cut, fell and remove all trees and underbrush and obstructions
and any other vegetation, structures or obstacles within the
limits of the right-of-way as may be required at any time
in the prosecution and maintenance of the work of improvement
or any enlargement thereof, and the right to enter upon, occupy,
and use any portion of said land not so cut away for the deposit
of dredged material and for such other purposes as may be necessary
in the preservation, maintenance and operation of the improvement work
-reserving, however, all such rights and privileges in said
tract of land as may be used and enjoyed without interfering with
or abridging the rights and easements
[Easement Deed: April 8, 1952 ]

As the trial court aptly illustrated, the language of the easement
expressly grants the right to use the easement as follows:
(1) to “construct, occupy, maintain, repair, operate,patrol” the drain;
(2) to “dig or cut away, and remove therefrom any and all of the land
within the limits of the way;”
(3) to “remove obstructions and any other structures or obstacles
within the limits of the way as may be required at any time
in the prosecution and maintenance of the work of improvement ”
(4) to “enter, occupy, and use any portion, not so cut away for the
deposit of dredged material;” and
(5) “for other purposes as may be necessary in the preservation,
maintenance and operation of the improved work,
and the right to ingress and egress.”

Any use which will interfere with the operation of the drain
or will increase the cost to the district of performing any
of its work is deemed to be inconsistent with the easement.
[MCL 280.85.]

/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Henry William Saad

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