Lake access: Michigan Court of Appeals rules on extent of servitude | Mitchell, Williams, Selig, Gates & Woodyard, LLC

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[co-author: Catherine Norwood]

The Michigan Court of Appeals (“Court”) addressed in a February 1 opinion the scope of a prescriptive easement in a waterfront context. See Astemborsky v. Manetta2022 WL 301296 (Mich. Ct. App. Feb. 1, 2022).

The question examined was whether the dominant buildings had the capacity to engage in certain activities on the lakefront property.

The dispute concerned three plots. They were originally part of a single property that had unrestricted access to a lake.

The original owner was Henry Groak (“Groak”). He divided the property into three plots. One parcel was selected (“Lakeside Parcel”). The other two were sold to the Scott and Diehl families.

Groak’s lake plot was the only one that still bordered the lake. Accordingly, Groak granted the Scott and Diehl parcels a 20-foot easement (“easement”) over the lakefront parcel for access to the lake.

The Scotts and Diehl installed a wharf (“Quai”) extending from the easement to the lake. They used it to moor their boats and for recreational activities such as sunbathing and picnicking. The dock was stored on the easement for the months when it was not in use. There is no evidence that Groak or his son ever gave the Diehls or Scotts verbal or written permission to build and use the Dock.

Groak sold his lakeside plot to the Russoms (“plaintiffs”). Mr. Diehl indicated that he and Mr. Russom had a verbal agreement and that permission had been given to “put his boat and his things” on the easement. However, the plaintiffs never gave the Scotts such verbal permission.

The Scotts then transferred ownership of the Scott parcel to their family trust (“Scott Trust”). The Diehls sold the Diehl plot to other individuals. A series of owners (“Diehl successors”) obtained the property. It was later purchased by the Unruh.

The Russoms told the Scott Trust and the Unruhs (“Defendants”) that the easement simply granted them access to the lake. They indicated that this did not give them the right to build a dock on the easement or to use the easement for recreational activities.

The defendants were ordered to remove the dock. They refused.

The plaintiffs then filed a lawsuit alleging that the defendants were trespassing and wrongfully using the easement. This was based on the defendants’ retention of the wharf and its use for recreational and boating purposes.

The defendants argued that the easement granted them “a full range of riparian rights [rights associated with accessing and using bodies of water and the land that borders them].” It was argued that this included the possibility of using the easement beach for recreational activities and the construction of a wharf. The lack of objection to the construction and use of the quay by the defendants for more than 35 years was mentioned.

The trial court found that the easement did not include a full range of riparian rights. Instead, he granted only the Diehls and Scotts and their successors access to the lake.

Yet the trial court also found that the defendants were not liable for the wrongful use of the easement. It was determined that they had acquired a prescriptive easement that gave them access and the ability to engage in the referenced activities.

The plaintiffs argued on appeal that the trial court erred in finding that the defendants had proven that they and their predecessors had obtained a prescriptive easement.

The Court accepted the judgments of the trial court. The Court found that Groak initially granted the Diehls and Scott a limited use easement. It allowed neighbors access to the lake only from easement (i.e. no right to build or store a dock there.) Nevertheless, the Diehls and Scotts and their successors transformed this limited-use easement into one with more rights by acquiring a prescriptive easement.

The Court defined a prescriptive easement to include a party’s interest in land acquired through adverse possession to which the true owner of the land does not object. Michigan law states that this includes a party obtaining a prescriptive easement by openly, peacefully, and continuously trespassing on land it does not truly own for more than fifteen years without the express objection or permission of the actual owner of the land. land (“true owner”). The intruding party asserts a claim of ownership by accessing and using the land as the true owner would.

The true owner may destroy this ownership claim by objecting to the trespassing party’s use or by granting the trespassing party express permission to use the land. The true owners of the land are said to have presumptively acquiesced in the intruding party’s adverse claim of ownership by doing neither. Moreover, such servitude can be inherited by party successors.

The defendants and their predecessors are said to have openly and continuously used the easement for activities in addition to accessing the lake. The defendants and their predecessors had openly used and stored the dock on the easement for more than 35 years before the plaintiffs finally objected. The Groaks and then the Russoms had seen the Accused and their predecessors:

  • Build the dock
  • Docking station storage
  • Moor the boats on the Dock
  • Socialize on the dock

Plaintiffs failed to properly grant a license to either defendant. Although the plaintiffs agreed to let the Diehls use the easement to store their boat, this express permission expired when the Diehls sold their land in 1993. Diehl’s successors never had that same license to use the easement to navigational or recreational purposes. Diehl’s successors owned the land for over 15 years, from 1993 to 2014. This gave Diehl’s successors a normative easement that the Unruh inherited when they purchased the plot from Diehl in 2014.

Plaintiffs also never gave the Scotts a license to use the easement to store or use a dock on it either. The Scotts and their successors also owned the Scott land for over 15 years. Therefore, both defendants were found to have a prescriptive easement on the easement. This could be transferred to subsequent owners of the Diehl and Scott plots.

A copy of the notice can be downloaded here.