If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LEONARD ASTEMBORSKI and DEBORAH UNPUBLISHED
ASTEMBORSKI, February 1, 2022
Plaintiffs/Counterdefendants-
Appellants/Cross-Appellees,
V No. 352066
Roscommon Circuit Court
CHERYL MANETTA and MELISSA SCOTT, as LC No. 15-722743-CH
Co-Trustees of the LYLE D. SCOTT TRUST and the
YVONNE ELAINE SCOTT TRUST, JON E.
UNRUH, and BONNIE A. UNRUH,
Defendants/Counterplaintiffs-
Appellees/Cross-Appellants.
Before: RONAYNE KRAUSE, P.J., and CAMERON and RICK, JJ.
PER CURIAM.
Plaintiffs appeal a November 14, 2019 judgment of no cause of action that was entered by
the trial court on the basis of the court’s conclusion that defendants were not liable for trespass or
nuisance because defendants held a prescriptive easement. Defendants cross-appeal the trial
court’s November 6, 2017 order, which granted plaintiffs’ partial motion for summary disposition.
We affirm the trial court’s November 14, 2019 judgment and, consequently, do not need to
consider defendants’ arguments concerning the November 6, 2017 order.
I. BACKGROUND
This case arises from a dispute over defendants’ rights to use a portion of plaintiffs’ riparian
property. Harry Groak originally owned all of the property underlying the dispute in this case. In
the mid-1960s, Groak partitioned the property into three parcels. Groak retained one of the parcels
(the servient estate), which is the only parcel that abuts Higgins Lake. Groak sold the other two
parcels to Howard and Mable Diehl in 1964 and to Lyle and Yvonne Scott in 1965. Groak granted
a 20-foot-wide easement across his parcel “for access to Higgins Lake[.]”
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A dock that extended from the easement was thereafter installed, and it was utilized by the
Diehls, Lyle, and Yvonne, as well as their family and guests. The easement dock was stored on
the easement during the months that it was not in Higgins Lake. The Diehls, Lyle, and Yvonne
moored boats and installed boat hoists. They also used the easement for other recreational
activities, such as sunbathing and picnicking. There is no evidence that Groak or his son gave the
Diehls, Lyle, or Yvonne permission to engage in these activities.1
In 1980, Robert and Mary Ann Russom, who were the original plaintiffs in this matter,
entered into a land contract to purchase the servient estate. According to Robert, he made a verbal
agreement with Howard in 1981 that Howard could “put his boat and stuff out there.” When asked
if he had a similar deal with the Scotts, Robert responded that Howard was “kind of the
spokesman.” However, Robert denied that he had made “any deals verbally with” Lyle or Yvonne,
who later transferred interests in the property to their respective trusts, defendants the Lyle D. Scott
Trust and the Yvonne Elaine Scott Trust. In 1993, the Diehls sold their property to Linda Cauzillo,
who later sold the property to Carl and Lucy Scott in 2001. After Carl died, Lucy transferred her
property to defendants Jon and Bonnie Unruh in 2014.
In September 2015, the Russoms informed defendants that the language of the easement
only allowed access to Higgins Lake and that no other uses of the easement or the area extending
from the easement would be permitted. Defendants did not remove the easement dock. In
November 2015, the Russoms filed suit, alleging that defendants had impermissibly used the
easement for purposes beyond mere lake access. The Russoms requested declaratory relief and
damages in relation to claims for trespass and nuisance. Defendants argued that the grant of access
to Higgins Lake included a full range of riparian or littoral rights, along with use of the easement’s
beach area for recreational activities. In the alternative, defendants argued that they had acquired
prescriptive rights to continue the challenged uses. In 2016, the Russoms sold the property to
plaintiffs, and plaintiffs were substituted as the named plaintiffs in this case.
The trial court ruled as a matter of law that the easement only contemplated access to
Higgins Lake. The case then proceeded to trial. At the conclusion of the bench trial, the trial court
held that defendants had a prescriptive easement for the seasonal installation and removal of the
easement dock, to moor boats, and to engage in certain recreational activities on the easement. As
a result, the trial court entered a judgment of no cause of action on plaintiffs’ claims for nuisance
and trespass. These appeals followed.
II. PRESCRIPTIVE EASEMENT
Plaintiffs argue that the trial court erred by concluding that defendants “had proven by clear
and cogent evidence that they or their predecessors had continuously used the easement [for
purposes outside of the scope of the express easement] for longer than the statutory period in a
manner that was hostile and adverse to the rights of” the owners of the servient estate. We disagree.
1
Groak died in the 1970s. Thereafter, the servient property was owned by Groak’s son.
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A. STANDARDS OF REVIEW
“A trial court’s factual findings in a bench trial are reviewed for clear error.” Prentis
Family Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 59; 698 NW2d
900 (2005). “A finding is clearly erroneous where, after reviewing the entire record, this Court is
left with a definite and firm conviction that a mistake has been made. This Court is especially
deferential to the trial court’s superior ability to judge of the relative credibility of witnesses[.]”
Smith v Straughn, 331 Mich App 209, 215; 952 NW2d 521 (2020) (alteration in original; quotation
marks and citations omitted). We review a trial court’s conclusions of law in a bench trial de novo.
Chelsea Inv Group, LLC v Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010).
B. ANALYSIS
“Land which includes or is bounded by a natural watercourse is defined as riparian.” Thies
v Howland, 424 Mich 282, 287-288; 380 NW2d 463 (1986). It is well established that a riparian
owner enjoys “certain exclusive rights,” which include “the right to erect and maintain docks along
the owner’s shore, and the right to anchor boats permanently off the owner’s shore.” Id. at 288.
(citations and footnote omitted). A nonriparian owner, on the other hand, has “a right to use the
surface of the water in a reasonable manner for such activities as boating, fishing and swimming,”
as well as “the right to anchor boats temporarily.” Id. However, “a riparian owner may grant
nonriparian owners the right to access and enjoy a lake by easement or license.” Little v Kin, 249
Mich App 502, 510; 644 NW2d 375 (2002).
“An easement is a limited property interest; it is the right to use the land burdened by the
easement for a specific purpose.” Smith, 331 Mich App at 215. “[A]n easement may be created
by express grant, by reservation or exception, or by covenant or agreement[.]” Bayberry Group,
Inc v Crystal Beach Condo Ass’n, 334 Mich App 385, 399; 964 NW2d 846 (2020) (quotation
marks and citation omitted). Easements may also be acquired by prescription. Marlette Auto
Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912 NW2d 161 (2018).
The land burdened by [an] easement is the servient estate, and the land
benefited by the easement is the dominant estate. An easement holder’s use of the
easement is limited to the purposes for which the easement was granted and must
impose as little burden as possible to the fee owner of the land, but the easement
holder nevertheless enjoys all such rights as are incident or necessary to the
reasonable and proper enjoyment of the easement. The necessity of an easement
holder’s conduct can be informed by the purpose and scope of the easement in
addition to the easement holder’s accustomed use of the easement.
A fee owner may use his or her land on a servient estate for any purpose not
unreasonably inconsistent with the rights of the easement holder. . . . Where the
language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted. The scope of an easement may only be
determined by reference to extrinsic evidence if the text of the instrument is
ambiguous. [Smith, 331 Mich App at 215-216 (alteration in original; quotation
marks and citations omitted).]
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Before trial, the trial court concluded as a matter of law that the plain language of the
easement established that Groak only intended for the owners of the dominant estates to have
access to Higgins Lake and that Groak did not intend for those owners to have unlimited use of
the easement or riparian rights. Following trial, the trial court held that defendants had an easement
by prescription.
“An easement by prescription is based upon the legal fiction of a lost grant, and results
from action or inaction leading to a presumption that the true owner of the land, by his
acquiescence, has granted the interest adversely held.” Slatterly v Madiol, 257 Mich App 242,
260; 668 NW2d 154 (2003) (quotation marks and citations omitted). “An easement by prescription
results from use of another’s property that is open, notorious, adverse, and continuous for a period
of fifteen years.” Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 679; 619
NW2d 725 (2000) (citations omitted).
To establish an easement by prescription there must be: First, continued and
uninterrupted use or enjoyment; second, identity of the thing enjoyed; third, a claim
of right adverse to the owner of the soil known to and acquiesced in by him. The
accepted rule is that the user must be exercised by the owner of the dominant
tenement, and must be open, peaceable, continuous, and as of right. It is sometimes
declared that it must also be exclusive, but the term exclusive use does not mean
that no one may use the way except the claimant of the easement. It means no more
than that his right to do so does not depend on a like right in others. [Plymouth
Canton Community Crier, 242 Mich App at 679-680 (quotation marks and citations
omitted).]
Thus, a prescriptive easement is “no more than an unopposed, continuous trespass [on
another’s property] for 15 years.” McDonald v Sargent, 308 Mich 341, 344-345; 13 NW2d 843
(1944). “If no single period of adverse use amounts to the 15-year statutory period, a party
claiming a prescriptive interest may tack the possessory periods of their predecessors in interest to
aggregate the 15-year period of prescription if the claimant can show privity of estate.” Marlette
Auto Wash, LLC, 501 Mich at 203 (quotation marks and citation omitted).2
“The burden is on the party claiming a prescriptive easement to show by satisfactory proof
that the use of the defendant’s property was of such a character and continued for such a length of
time that it ripened into a prescriptive easement.” Mulcahy v Verhines, 276 Mich App 693, 699;
742 NW2d 393 (2007). In fact, a plaintiff claiming “entitlement to a prescriptive easement” must
do so by “clear and cogent evidence.” Matthews v Natural Resources Dep’t, 288 Mich App 23,
37; 792 NW2d 40 (2010). This is an exacting standard:
[C]lear and cogent evidence is more than a preponderance of evidence,
approaching the level of proof beyond a reasonable doubt. That is to say, the
standard is much like clear and convincing evidence. . . . Thus, in an adverse
possession case, for a party to establish possession by clear and cogent evidence,
the evidence must clearly establish the fact of possession and there must be little
2
Plaintiffs do not challenge the trial court’s conclusion that privity of estate existed.
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doubt left in the mind of the trier of fact as to the proper resolution of the issue.
Thus, where there is any reasonable dispute, in light of the evidence, over the
question of possession, the party has failed to meet his burden of proof. [McQueen
v Black, 168 Mich App 641, 645 n 2; 425 NW2d 203 (1988) (quotation marks
omitted).]
In this case, plaintiffs argue that defendants failed to establish by clear and cogent evidence
that the challenged uses were adverse and hostile. We disagree.
The element of hostility or adversity “as employed in the law of adverse possession is a
term of art and does not imply ill will. Nor is a claimant required to make express declarations of
adverse intent during the prescriptive period.” Plymouth Canton Community Crier, 242 Mich App
at 681 (quotation marks and citations omitted). Instead, the “[u]se of another’s property qualifies
as adverse when made under a claim of right when no right exists.” Id. Simply put, “[a]dverse or
hostile use is use inconsistent with the right of the owner, without permission asked or given,”
which would entitle the owner to bring an action for trespass or nuisance. Id. (quotation marks
and citations omitted). Hence, “[m]ere permissive use of another’s property . . . will not create a
prescriptive easement.” Id. at 679.
Evidence in this case establishes that, in the 1970s, the Diehls, Lyle, and Yvonne placed
the easement dock in Higgins Lake, stored the easement dock on the easement, moored boats, and
engaged in other recreational activities on the easement. There is no evidence that Groak or his
son provided them with permission to do so. When the Russoms purchased the servient property
in 1980, the easement dock was on the easement. According to Robert, he had made a verbal
agreement with Howard in 1981 that Howard could “put his boat and stuff out there.” When asked
if he had a similar deal with Lyle and Yvonne, Robert responded that Howard was “kind of the
spokesman.” However, Robert denied that he had made “any deals verbally with Lyle and Yvonne
Scott.” Robert also acknowledged that Howard did not provide any sort of documentation to
establish that he was permitted to act on behalf of Lyle and Yvonne. The following line of
questioning then occurred:
Q. [W]ould it be fair to say that you presumed it was on behalf of [Lyle and
Yvonne]?
A. Well, I would guess.
Q. If [Yvonne] was to testify, and this is a hypothetical, was to testify today
that she had no such agreement with you or [Mary Ann], would she be inaccurate?
A. No.
Mary Ann testified that she was present when Robert and Howard discussed the easement.
According to Mary Ann, Howard approached Robert and asked “can we keep our boats there?”
Mary Ann testified that Howard pointed to the easement and to the boats that belonged to Howard
and Lyle. Mary Ann indicated that Robert responded, “Yes.” In exchange, Howard permitted the
Russoms to put certain property in the Diehls’ backyard. Neither Lyle nor Yvonne were present
during this conversation. However, according to Mary Ann, Howard was “the glue”, “the big
brother and the spokesperson” of the group.
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The evidence establishes that the Russoms did not provide Lyle and Yvonne with
permission to use the property in any manner other than to access Higgins Lake. Although
evidence supported that the Russoms believed that Howard represented Lyle and Yvonne’s
interests, there is no evidence that Howard had authority to negotiate on their behalf. Rather, as
noted by the trial court, it was merely the Russoms’ impression that this was the case. Moreover,
there is no indication that Howard had informed them of the “deal” that he had made with Robert.
Indeed, Howard, Lyle, and Yvonne did not testify.3 Even more importantly, Robert and Mary Ann
clarified that they did not have an explicit verbal agreement with either Lyle or Yvonne.
Consequently, the trial court did not clearly err by finding that the permission granted to Howard
by the Russoms did not extend to Lyle and Yvonne and that Lyle and Yvonne therefore continued
to utilize the easement in an adverse or hostile manner after Robert and Howard discussed the use
of the easement in 1981.
Although the evidence supports that Robert provided Howard with permission to place a
dock and moor boats in the area extending from the easement and to store the dock on the
easement, the trial court found that this amounted to an oral license and that Howard’s permission
was revoked when the Diehls’ property was transferred to Cauzillo in 1993. This was not in error.
“[A] license is permission to do some act or series of acts on the land of the licensor without
having any permanent interest in it[.]” Kitchen v Kitchen, 465 Mich 654, 658; 641 NW2d 245
(2002) (quotation marks and citation omitted). While “a license may be granted orally,” an “oral
license is necessarily revocable at the will of the licensor without regard for any promised
duration.” Id. at 661. Furthermore, “a license is [generally] revocable at will and is automatically
revoked upon transfer of title by either the licensor or licensee.” Id. at 658-659.
In this case, there is no indication that the Russoms provided the Diehls with any written
permission to utilize the easement in a manner other than to access Higgins Lake. Indeed, the
Russoms’ testimony established that Robert and Howard had a conversation, whereby Robert
verbally agreed that Howard could “put his boat and stuff” on the easement. This agreement was
made in 1981. The Diehls sold their property in 1993, thereby resulting in an automatic revocation
of permission. See Kitchen, 465 Mich at 658-659. Furthermore, the agreement was made in
exchange for Howard permitting Robert to place items in the Diehls’ backyard, so it was personal
to Howard and the Diehls, and it would have lapsed when the Diehls moved in any event.
Importantly, there is no evidence that the Russoms provided Cauzillo, Carl, Lucy, or the Unruhs
permission to utilize the easement in any manner apart from accessing Higgins Lake.
Consequently, the evidence does not support that Cauzillo, Carl, Lucy, or the Unruhs’ use of the
easement was permissive from 1993 through 2015, which more than satisfies the 15-year
requirement.
Although plaintiffs argue that the trial court erred as a matter of law because the “mere
overuse of an express easement cannot give rise to a prescriptive easement,” we disagree. To
support this argument, plaintiffs cite Thies, 424 Mich at 297, which generally noted that “[a] person
entitled to the use of an easement cannot materially increase the burden upon the servient estate
3
Howard and Lyle died before the lawsuit was filed. Testimony supported that Yvonne was in
poor health at all relevant times.
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beyond what was originally contemplated.” Importantly, however, Thies did not concern a
prescriptive easement. Thies concerned whether the defendants were permitted to construct a dock
under the plain language of an easement agreement. Id. Therefore, plaintiffs’ reliance on Thies to
support that defendants’ purported “overuse” of the easement cannot create a prescriptive
easement is without legal merit.
Plaintiffs also cite several unpublished opinions to support their argument. However,
unpublished opinions are not binding authority. Cox v Hartman, 322 Mich App 292, 307; 911
NW2d 219 (2017). Moreover, the cases cited by plaintiffs are not persuasive because they involve
dedications of land, as opposed to private easements. See 2000 Baum Family Trust v Babel, 488
Mich 136, 144; 793 NW2d 633 (2010) (“A ‘dedication’ of land is an ‘appropriation of land to
some public use, accepted for such use by or in behalf of the public. The essence of a dedication
is that the covered land will be for the use of the public at large.”) (Citations omitted.)
Consequently, we conclude that plaintiffs have failed to establish that defendants could not acquire
a prescriptive easement through their alleged “mere overuse of the express shared access easement
over the subject property.”4
In sum, we conclude that the trial court properly concluded that defendants established by
clear and cogent evidence that they had a prescriptive easement. In so holding, we note that
defendants argue on cross-appeal that the trial court erred by granting plaintiffs’ motion for partial
summary disposition. However, we need not consider this argument because defendants indicate
that, “[i]f this Court affirms the trial court’s November 14, 2019 bench decision, the need for this
cross appeal is rendered moot and the panel may pass on the same.”
Affirmed.
/s/ Amy Ronayne Krause
/s/ Thomas C. Cameron
/s/ Michelle M. Rick
4
We acknowledge that defendants argue that this argument is not preserved and therefore not
properly before this Court. Assuming without deciding that defendants are correct, we conclude
that it would nonetheless be proper to consider plaintiffs’ argument. See In re Conservatorship of
Murray, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 349068); slip op at 3
(acknowledging that “this Court may overlook preservation requirements if . . . the issue involves
a question of law and the facts necessary for its resolution have been presented”).
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