Friends of the Hastain Trail v. Coldwater Development LLC

ROTHSCHILD, P. J.,

Concurring.—I would make one further point. Although defendants may have raised equitable arguments and proposed their “Alternative Trail Easement” too late in the proceedings below, the court was mistaken when it expressed its belief that it did not have the power to consider equitable arguments in deciding where to locate the easement. Because the causes of action and relief plaintiffs prayed for were equitable, the court had the power to consider an equitable resolution—defendants’ proposed Alternative Trail Easement.

In determining whether an achon is legal or equitable,…