STATE OF MICHIGAN
COURT OF APPEALS
TERRANCE R. FOWLE and DEBRA FOWLE, UNPUBLISHED
October 16, 2018
Plaintiffs-Appellees,
v No. 339913
Lenawee Circuit Court
MARK DUSHANE, LC No. 13-004812-CH
Defendant-Appellant.
Before: MURRAY, C.J., and BORRELLO and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this quiet title action concerning a driveway easement, defendant appeals as of right
the circuit court’s opinion and order in favor of plaintiffs following a bench trial. We affirm.
As this Court noted in a prior related appeal involving the same parties, Dushane v
Fowle, unpublished per curiam opinion of the Court of Appeals, issued September 14, 2017
(Docket No. 332392) (Dushane I), p 1, the dispute between the parties arises out of an express
easement granted in 1989 by way of a consent judgment settling litigation between the parties’
predecessors in interest. The dominant (i.e., benefitted) estate now belongs to plaintiffs, while
the adjacent, servient estate belongs to defendant.1 Id. Both are commercial properties.
The subject of the easement is the use, “for ingress and egress,” of a driveway situated on
defendant’s property. The driveway connects to the main roadway, M-50. In essence, the
instant dispute arose because, for decades, the location and course of the easement as actually
used by the parties differed slightly from the easement’s legal description (as described in the
1989 judgment). In other words, as used by the parties, the driveway easement covered a
triangular “wedge” of defendant’s property that fell outside the bounds of the easement’s metes-
and-bounds legal description. This case arose after the Michigan Department of Transportation
(MDOT) repaired an underlying culvert in 2013, after which it restored defendant’s driveway to
the stated dimensions of the express easement. This revealed the parties’ prior mistake
1
“The land served or benefited by an easement is called the dominant estate and the land
burdened by an easement is called the servient estate.” D’Andrea v AT&T Mich, 289 Mich App
70, 73 n 2; 795 NW2d 620 (2010).
-1-
concerning the bounds of the easement, ultimately prompting the trespass action that was at issue
in Dushane I, along with the quiet title action that is at issue here.
On appeal, defendant argues that the trial court erred in several respects, and those
arguments implicate two standards of review. We review de novo “the application of legal
doctrines, such as res judicata and collateral estoppel,” Estes v Titus, 481 Mich 573, 578-579;
751 NW2d 493 (2008), a trial court’s decision concerning a prescriptive easement, Mulcahy v
Verhines, 276 Mich App 693, 698; 742 NW2d 393 (2007), and a trial court’s equitable decision
in a quiet title action, Marlette Auto Wash, LLC v Van Dyke SC Properties, LLC, 501 Mich 192,
201; 912 NW2d 161 (2018). Any related factual findings are reviewed for clear error, Mulcahy,
276 Mich App at 698, which occurs when “after a review of the record, this Court is left with a
definite and firm conviction that a mistake was made,” Lawrence v Burdi, 314 Mich App 203,
220; 886 NW2d 748 (2016).
Defendant first contends that the trial court erred, at several different stages of the
proceedings below, by failing to hold that plaintiffs’ quiet title action was barred under the
doctrine of res judicata.
As this Court recently noted in In re Bibi Guardianship, 315 Mich App 323, 333; 890
NW2d 387 (2016):
The doctrine of res judicata is intended to relieve parties of the cost and vexation
of multiple lawsuits, conserve judicial resources, and encourage reliance on
adjudication, that is, to foster the finality of litigation. For res judicata to preclude
a claim, three elements must be satisfied: (1) the prior action was decided on the
merits, (2) both actions involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the first. [T]he burden of
proving the applicability of . . . res judicata is on the party asserting it. [Quotation
marks and citations omitted; alterations in original.]
For purposes of the third element, “[o]ur Supreme Court ‘has taken a broad approach to the
doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim
arising from the same transaction that the parties, exercising reasonable diligence, could have
raised but did not.’ ” Garrett v Washington, 314 Mich App 436, 442; 886 NW2d 762 (2016),
quoting Adair v Michigan, 470 Mich 105, 121; 680 NW2d 386 (2004) (emphasis in Garrett).
Defendant’s argument ignores the fundamental principle that res judicata does not
preclude “a subsequent action between the same parties or their privies when the facts have
changed or new facts have developed[.]” Bibi, 315 Mich App at 334 (quotation marks and
citations omitted). Or, to phrase the holding in Adair another way, a final judgment in a prior
action does not bar a party’s claim in a subsequent action when, even through the exercise of
reasonable diligence, the party could not have raised that claim during the prior action. Adair,
470 Mich at 121.
Here, several facts that are directly material to plaintiffs’ instant action to quiet title
developed only after the 2004 litigation had concluded in 2005: (1) any potential claim accrued,
i.e., became actionable, (2) MDOT altered the physical location of the driveway in 2013,
-2-
revealing that the parties had previously been mistaken about the boundaries of the easement,
and (3) thereafter, defendant began to physically block the path of the driveway easement as it
had been used by the owners of both properties since the 2004 litigation. For those reasons,
plaintiffs’ quiet title action could not have been asserted during the 2004 litigation, and the trial
court correctly determined that res judicata did not bar this action.2
Pointing to the fact that plaintiffs filed a document during the 2004 litigation admitting
that they had not used the easement since they purchased the property, defendant next argues that
the trial court erred by failing to hold that plaintiffs were collaterally estopped from introducing
proofs in this action that they had, in fact, used the easement since 1995 (the year that they
purchased the property). We again disagree.
Collateral estoppel is a flexible rule intended to relieve parties of multiple
litigation, conserve judicial resources, and encourage reliance on adjudication.
The doctrine of collateral estoppel must be applied so as to strike a balance
between the need to eliminate repetitious and needless litigation and the interest in
affording litigants a full and fair adjudication of the issues involved in their
claims. [Bibi, 315 Mich App at 331-332 (quotation marks and citations omitted).]
Defendant has failed to properly support his argument concerning the preclusive effect of
the 2004 litigation. “Collateral estoppel bars relitigation of an issue in a new action arising
between the same parties or their privies when the earlier proceeding resulted in a valid final
judgment and the issue in question was actually and necessarily determined in that prior
proceeding.” Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) (emphasis
added). Defendant cites no authority for the proposition that a pleaded admission from a prior
action can be considered to be a fact that was actually determined in that prior action. In any
event, this argument is unpersuasive on the merits.
First, as a general rule, a fact is not “actually” determined unless it was submitted to the
trier of fact and conclusively determined, which never occurred in the 2004 litigation. See
Keywell & Rosenfeld v Bithell, 254 Mich App 300, 343 n 49; 657 NW2d 759 (2002). Second,
even assuming, arguendo, that plaintiffs’ pleaded admission from the 2004 litigation qualifies as
a fact that was actually determined in that action, it was not necessarily determined. In the 2004
litigation, the circuit court had two distinct motions pending before it: plaintiffs’ motion for
defendant to show cause why he should not be held in contempt for blocking the easement and
defendant’s parents’ motion to extinguish the easement through prescription. As the circuit court
2
This conclusion is wholly consistent with this Court’s decision in Dushane I that res judicata
did bar defendant’s 2013 trespass action against plaintiffs. Unlike plaintiffs’ quiet title action in
here, the viability of defendant’s trespass claim in Dushane I was in no way dependent on the
expiration of some period of time. On the contrary, defendant’s claim in Dushane I was
actionable the first time that plaintiffs allegedly trespassed on any portion of defendant’s
property outside the bounds of the easement. Hence, that trespass claim could have been,
through defendant’s exercise of reasonable diligence (ordering a survey), pursued during the
2004 litigation. Dushane I is thus distinguishable from the instant case.
-3-
noted at the 2005 evidentiary hearing, it could dispense with the motion to extinguish the
easement solely on the basis of defendant’s father’s testimony, which admitted that the full
prescription period had not yet lapsed. Moreover, because the trial court never actually ruled on
plaintiffs’ show-cause motion, it was never forced to determine whether defendant’s parents had
blocked the easement. And even if it had made such a determination, the court would not have
been required to determine whether they had blocked the easement to such an extent that
plaintiffs had been utterly unable to use it for ingress and egress from M-50. That question was
immaterial.
Finally, defendant contends that because plaintiffs’ use of the driveway was interrupted
during the timeframe surrounding the 2004 litigation, the trial court erred by granting plaintiffs a
prescriptive easement. We agree but conclude that reversal is nevertheless unwarranted.
“Just as ownership of land may be acquired through adverse possession, so too may an
easement be acquired through prescription.” Marlette, 501 Mich at 202. The elements to obtain
a prescriptive easement “are the same as those of title by adverse possession, with the exception”
of exclusivity. Id. at 202-203 (quotation marks and citation omitted). Thus, a party seeking to
acquire a prescriptive easement “must show clear and cogent proof of possession that is actual,
continuous, open, notorious, hostile, and uninterrupted for the relevant statutory period” of 15
years. Id. at 202-203, 211 (emphasis added).
Although there is Michigan caselaw discussing interruption in the context of adverse
possession, we find little helpful authority covering that same subject in the context of
prescriptive easements, and the parties have provided us none. Thus, we resort to secondary
sources for guidance. According to 28A CJS, Easements, §38, p 237:
An interruption or breach of continuity of the use, sufficient to stop the running of
the prescriptive period, ordinarily occurs only where there is a physical
interruption or some unequivocal act of ownership on the part of the owner of the
servient tenement, or of one in privity with him or her or of a third party. A
temporary or accidental interruption, generally, is not sufficient.
“A suit by the owner of the servient tenement, to test the right to the easement, is an interruption
of the use.” 28A CJS, Easements, §40, pp 238-239. But see Restatement Property, 1st, §459, p
2395 (stating that “[a]n adverse use is uninterrupted when those against whom the use is
adverse” neither “(a) bring and pursue to judgment legal proceedings in which the use is
determined to be without legal justification,” nor “(b) cause a cessation of the use without the aid
of legal proceedings”) (emphasis added). Likewise, a physical barrier erected across the
easement, which prevents the dominant estate from continuing its use, interrupts the prescriptive
period. Hopkins v Parker, 296 Mich 375, 376-380; 296 NW 294 (1941) (fence erected across
driveway). See also 157 Am Jur Proof of Facts 3d, §59 (noting that if the owner of the servient
estate “takes any action that stops a claimant’s use of the property” during the prescriptive
period, such as erecting physical barriers, “for any period of time, no matter how brief,” “this
action will defeat a claim for a prescriptive easement”).
In this instance, defendant filed a motion in 2004 seeking to extinguish the easement
through abandonment and prescription. At trial, plaintiffs also admitted that defendant
-4-
physically blocked some portions of the easement during that timeframe, partially restricting its
use and curtailing the use of some portions entirely. Based on this evidence, defendant’s actions
were sufficient to interrupt the prescriptive period in 2004—i.e., less than 15 years after plaintiffs
took possession of the dominant estate and began using the easement. Less than 15 years also
passed between the conclusion of the 2004 litigation and the commencement of plaintiffs’ instant
action to quiet title. Consequently, we agree with defendant that the trial court erred. Plaintiffs
failed to present clear and cogent proof that their use of the easement was not interrupted during
the prescriptive period.
However, reversal is not warranted. “This Court . . . will not reverse when a trial court
reaches the right result for a wrong reason.” Neville v Neville, 295 Mich App 460, 470; 812
NW2d 816 (2012). Based on the trial court’s factual findings, the same outcome would be
reached under a closely related theory, acquiescence, which has long been recognized in this
state.3 See generally Hanlon v Ten Hove, 235 Mich 227, 233; 209 NW 169 (1926); Walters v
Snyder, 239 Mich App 453, 457; 608 NW2d 97 (2000); Sackett v Atyeo, 217 Mich App 676, 681;
552 NW2d 536 (1996); Pyne v Elliott, 53 Mich App 419, 426-428; 220 NW2d 54 (1974); Rock v
Derrick, 51 Mich App 704, 708; 216 NW2d 496 (1974).
The Supreme Court has “repeatedly held . . . that a boundary line long treated and
acquiesced in as the true line, ought not to be disturbed on new surveys.” Johnson v Squires, 344
Mich 687, 692; 75 NW2d 45 (1956) (quotation marks and citations omitted). If certain boundary
lines “have been acquiesced in for a sufficient length of time, they fix the ‘true line’ as matter of
fact and as matter of law.” Hanlon, 235 Mich at 233. This rule is intended to promote “peaceful
resolution of boundary disputes.” Killips v Mannisto, 244 Mich App 256, 260; 624 NW2d 224
(2001).
As the Court explained in Warner v Noble, 286 Mich 654, 662; 282 NW 855 (1938),
adverse possession and acquiescence are complimentary concepts, inasmuch as one theory often
covers a situation that the other does not:
The basis of the rule that boundaries may be fixed by verbal agreement,
long acquiesced in, and the theory of acquiring title by adverse possession are
diametrically opposed to each other. The theory of ownership to an agreed
3
A quiet title action is equitable in nature, which this Court reviews de novo. Additionally,
acquiescence represents an alternative ground for affirmance, and the trial court’s stated factual
findings fully support a finding of acquiescence. See Mack v Detroit, 467 Mich 186, 207; 649
NW2d 47 (2002) (noting that it is “well understood” that an appellate court has discretion to
“address[] a controlling legal issue despite the failure of the parties to properly frame the issue,”
particularly where their briefing fails to recognize some dispositive rule or precedent); Tkachik v
Mandeville, 487 Mich 38, 46; 790 NW2d 260 (2010) (reasoning that “[e]quity allows complete
justice to be done in a case by adapting its judgments to the special circumstances of the case”)
(quotation marks, citation, and brackets omitted); Thill v Danna, 240 Mich 595, 597; 216 NW
406 (1927) (stating that “[e]quity looks at the whole situation and grants or withholds relief as
good conscience dictates”).
-5-
boundary proceeds upon the ground there has been a bona fide dispute as to the
true boundary line and the parties have by peaceful agreement made a friendly
settlement of this dispute which has been acquiesced in, carried out and
performed by the respective parties. The theory of adverse possession is the
antithesis of the doctrine of friendly settlement and peaceful acquiescence. It
proceeds upon the ground of open, notorious, antagonistic acts of unremitting
hostility under a claim of right to the claim of rights of the adverse party. And it
must be continued for a period of 15 years.
Indeed, in circumstances such as those now at bar, physical boundaries can be
conclusively established by acquiescence over a period of less than the applicable prescriptive
period. See Pyne, 53 Mich App at 427. When a boundary is established by a mutual agreement
between the owners of adjacent properties—an agreement which follows a dispute between those
owners over that same boundary—and the owners all subsequently acquiesce that the boundary,
as actually used, corresponds to the boundary that was agreed upon, it will thereafter “be
considered the true line between them,” even if “the period of such acquiescence falls short of
the time fixed by the statute of limitations for gaining title by adverse possession.” Id., quoting
Cochran v Milligan, 359 Mich 148, 151; 101 NW2d 292 (1960) (quotation marks and citation
omitted). Acquiescence will be found where, over time, the owners generally “treated” a certain
boundary as if it were the actual boundary. Walters, 239 Mich App at 458. It need not be
proven that they did so continuously, in some sort of ongoing, objectively noticeable fashion. Id.
Unlike prescription, which must be proven by clear and cogent evidence, Marlette, 501 Mich at
211, the less stringent preponderance-of-the-evidence quantum of proof is required to show
acquiescence, Killips, 244 Mich App at 260.
It is undisputed that in all of the years after the 1989 judgment was entered—up until
2013—the owners of both the dominant estate and the servient estate treated the actual physical
location of defendant’s driveway as if it was properly situated within the bounds of the easement
to which the property owners had agreed in the 1989 judgment. Such acquiescence exceeded 15
years, and even if it had not, it would suffice because the owners of the estates agreed to it in
1989 following a consent judgment that settled litigation between them concerning this very
easement. Therefore, under the doctrine of acquiescence, defendant is barred from now
contending that the boundaries of the easement are different than those to which both he and his
predecessors in interest acquiesced for more than two decades. For that reason, the trial court
reached the correct result in this case, albeit for the wrong reason.4
4
Defendant also attempts to argue that the trial court erred by improperly expanding the scope of
the express easement to include commercial trucking. However, “a court speaks through its
written orders,” In re Leete Estate, 290 Mich App 647, 658; 803 NW2d 889 (2010), and the
order appealed here does not state any holding about whether commercial truck traffic falls
within the proper scope of either the express easement (as stated in the 1989 judgment) or the
prescriptive easement. Rather, the order appealed expressly permits “use of the driveway in
accordance with the Order set forth in 1989[.]” (Emphasis added.) In other words, it does not
appear that the trial court actually issued the unfavorable ruling that defendant now attributes to
-6-
Affirmed.
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
it. Because, as a general rule, “[a]ppellate review is limited to issues actually decided by the trial
court,” Allen v Keating, 205 Mich App 560, 564-565; 517 NW2d 830 (1994), we decline to
consider the merits of this issue. Had defendant desired such a ruling below, he should have
asserted a counterclaim or affirmative defense on the subject of the easement’s scope, or made a
relevant motion. He did not. The onus was not on the trial court to decide what forms of relief
defendant sought, or what defenses he might raise, and defendant should not be permitted to
assign his own litigation failures as error requiring reversal. See Walters v Nadell, 481 Mich
377, 388; 751 NW2d 431 (2008) (“[t]rial courts are not the research assistants of the litigants”);
Bloemsma v Auto Club Ins Ass’n (After Remand), 190 Mich App 686, 691; 476 NW2d 487
(1991) (“Error requiring reversal must be that of the trial court, and not error to which the
appellant contributed by plan or negligence.”).
-7-