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
MARY ANN LAMKIN and STEVE LAMKIN, UNPUBLISHED
February 8, 2024
Plaintiffs-Appellants,
v No. 326986
Livingston Circuit Court
EUGENE HARTMEIER, CYNTHIA HARTMEIER, LC No. 12-026600-NZ
KEVIN HARTMEIER, DENNIS MCCOMB,
GLORIA MCCOMB, DANIEL ENGRAM,
DANIELLE ENGRAM, JAMES BEAUDOIN,
CECILE LAUDENSLAGER, ANGELA CHRISTIE,
KIMBERLY KRASKA, JOAN BEAUDOIN,
AARON KIRBY, DAMON HARTMEIER, DENISE
ENGRAM, DEANN ENGRAM, DEREK
ENGRAM, CATHERINE BARRETT,
Defendants-Appellees,
and
RONALD THYBAULT and the Estate of MARY
WECKESER,
Defendants.
Before: MARKEY, P.J., and K. F. KELLY, and GADOLA JJ.
ON REMAND, AFTER REMAND
PER CURIAM.
This case returns to this Court after a second remand to the trial court. We conclude that
the trial court correctly assessed the record before it and correctly applied the relevant authority,
including our Supreme Court’s decision in Marlette Auto Wash, LLC v Van Dyke SC Properties,
LLC, 501 Mich 192; 912 NW2d 161 (2018). We therefore affirm.
-1-
I. FACTS
This case involves a dispute over the use of Island Shore Drive, a private dirt road along
the northern shore of Oneida Lake in Pinckney, Michigan. Island Shore Drive crosses the property
of plaintiffs, Mary Ann and Steve Lamkin, and provides ingress and egress to M-36 for multiple
lots on the northern side of the lake, including the lots owned by the various defendants. Plaintiffs
initiated this lawsuit challenging the various defendants’ right to use the road to access their
properties and the extent of that use.
By way of background, in the late 1800s Thomas Shehan owned a 40-acre parcel of
property bordering the northwest shore of Oneida Lake. He split the property into 10 lots and
deeded an express easement, now known as Island Shore Drive, through each lot to provide access
to the main roadway. In 1922, property on the northeast side of the lake was platted into Cady’s
Point Comfort Subdivision, and in 1933, another parcel on the northeast side of the lake was platted
into Island Lake Shores Subdivision. According to plaintiffs, the lots in Cady’s Point and Island
Lake Shores previously had access to main roads through other unrelated properties.
In 1980, plaintiffs purchased two of the Shehan lots. At that time, the lots in Cady’s Point
and Island Lake Shores already had become landlocked, and the lot owners were using Island
Shore Drive for ingress and egress to M-36. According to plaintiffs, at the time they purchased
their property, there were 14 year-round homes using Island Shore Drive, but by 2008, 29 year-
round homes relied on the road for ingress and egress to M-36.
In December 2004, plaintiffs sent defendants a memo advising them that they had obtained
only a limited easement by prescription over plaintiffs’ property and only for ingress or egress. Id.
As traffic increased, plaintiffs attempted to control access to the portion of Island Shore Drive
crossing their property, including digging ruts into the roadway that crosses their property.
Defendants allegedly retaliated with numerous acts of harassment against plaintiffs.
In February 2012, plaintiffs initiated this action against defendants alleging nuisance,
trespass, unreasonable interference with plaintiffs’ enjoyment of their land, malicious destruction
of property, and intentional infliction of emotional distress (IIED). Plaintiffs then moved for
declaratory and injunctive relief, asking the court to prevent defendants, their families, and their
invitees from engaging in acts of trespass, nuisance, and malicious destruction of property. The
trial court denied plaintiffs’ motion for declaratory and injunctive relief, and consolidated
plaintiffs’ action with a quiet title action initiated by property owners within Cady’s Point, Island
Lake Shores, and along Island Shore Drive.
Several of the defendant property owners moved for summary disposition on the basis that
they had established an easement by prescription and by necessity, and that plaintiffs had not
established a claim of nuisance nor a claim of intentional infliction of emotional distress. The trial
court found that defendants had established a prescriptive easement and an easement by necessity
in the portion of the Island Shore Drive that crosses plaintiffs’ property, finding that defendants or
their predecessors in interest had used Island Shore Drive continuously from 1980 to 2004. The
trial court granted defendants’ motions for summary disposition regarding plaintiffs’ nuisance,
trespass, malicious destruction of property, and IIED claims pursuant to MCR 2.116(C)(10), and
-2-
denied plaintiffs’ renewed motion for declaratory and injunctive relief. The trial court denied
plaintiffs’ motion for reconsideration.
Plaintiffs appealed. This Court affirmed in part, reversed in part, and vacated in part the
trial court’s order, and remanded the case to the trial court for further proceedings. Lamkin v
Hartmeier, unpublished per curiam opinion of the Court of Appeals, issued September 1, 2016
(Docket No. 326986), p 6-7.] This Court held that:
We therefore affirm, to a limited extent, the trial court’s finding that
defendants enjoy a prescriptive easement for ingress and egress between M-36 and
their homes over Island Shore Drive. The limitation, as noted, is that the easement
is only for ingress and egress; it does not include any right to make use of the
easement for recreational purposes. The right of ingress and egress does, consistent
with other reasonable concessions made by plaintiffs in their depositions, extend to
reasonable invitees, such as delivery vehicles, emergency vehicles, utility workers
or contractors, or guests. We note that some defendants did provide direct evidence
that they personally, or they and their direct predecessors, had used Island Shore
Drive for at least the requisite period, but we are not persuaded that the evidence
demonstrates a greater use than for ingress and egress.
Plaintiffs contend that the trial court should not have dismissed their claims
for trespass and for nuisance. On the basis of our holdings above, we agree in part.
Clearly, defendants did not commit a trespass by using Island Shore Drive for
ingress and egress. However, plaintiffs’ trespass claim also included allegations
that defendants damaged their property outside the easement, and furthermore, as
noted, using Island Shore Drive for recreational purposes exceeds its scope.
“Activities by the owner of the dominant estate that go beyond the reasonable
exercise of the use granted by the easement may constitute a trespass to the owner
of the servient estate.” Schadewald v Brule, 225 Mich App 26, 40; 570 NW2d 788
(1997). Conversely, a dominant estate holder “has the privilege to do such acts as
are necessary to make effective the enjoyment of the easement, unless the burden
upon the servient tenement is thereby unreasonably increased.” Mumrow v Riddle,
67 Mich App 693, 699; 242 NW2d 489 (1976). The touchstone being
reasonableness under the circumstances and what amounts to a balancing test, id.
at 699-700, and in light of the present procedural posture of this matter, we are not
in a position to evaluate whether defendants have overburdened the easement.
Likewise regarding the nuisance claim, it is difficult for us to understand
how defendants can have created a nuisance by failing to maintain any part of Island
Shore Drive, in light of plaintiffs’ failure to articulate how they are obligated to do
so and concession that they themselves damaged the road surface and objected to
collective maintenance of the roadway through use of a special assessment district.
Nevertheless, they also alleged that defendants engaged in acts of gratuitous
speeding, honking horns, spinning tires, and otherwise generating disturbances.
Noise can constitute a nuisance, depending on its character, volume, time, duration,
and other circumstances. Smith v Western Wayne Co Conservation Ass’n, 380
-3-
Mich 526, 536; 158 NW2d 463 (1968). Again, we are not in a position to evaluate
most of the real merits of this claim.
We find that the trial court clearly was correct in dismissing some of
plaintiff’s trespass and nuisance claims, but we conclude that the trial court went
too far in dismissing them in their entirety. We lack a sufficient record to determine
the merits of the remainder of plaintiffs’ claims. Therefore, consistent with the
above paragraph, we partially vacate the trial court’s dismissal of plaintiffs’
trespass and nuisance claims, and we remand those for further proceedings
consistent with this opinion. Consequently, it is unnecessary for us to address
plaintiffs’ motion for reconsideration. While this result may not be consistent with
the most restrictive, narrow, and harsh reading of applicable precedent theoretically
possible, we find it dictated by a fair reading thereof and supplemented by the non-
binding but certainly not irrelevant equities of the situation when viewed as a
whole. [Lamkin, unpub op at 8.]
The parties sought leave to appeal to our Supreme Court, which held the applications in
abeyance pending its resolution of Marlette Auto Wash. Lamkin v Hartmeier, 893 NW2d 612
(2017). After issuing its decision in Marlette, the Supreme Court, in lieu of granting leave in this
case, vacated in part this Court’s judgment and remanded the case to this Court as follows, in
pertinent part:
We do not disturb the remand to Livingston Circuit Court on the issue of nuisance.
We REMAND this case to the Court of Appeals for reconsideration as to whether
each defendant established a prescriptive easement in light of Marlette Auto Wash,
LLC v Van Dyke SC Properties, LLC, 501 Mich 192 (2018), and for reconsideration
of the scope of each easement based on the manner of use by which the easement
was acquired and manner of the previous enjoyment, see Heydon v MediaOne, 275
Mich App 267, 271 (2007). [Lamkin v Hartmeier, 503 Mich 891 (2018).]
On remand, this Court affirmed in part, reversed in part, and vacated in part the trial court’s
previous decision and remanded to the trial court a second time for further proceedings, while
retaining jurisdiction. Lamkin v Hartmeier (On Remand), unpublished per curiam opinion of the
Court of Appeals, issued September 17, 2019 (Docket No. 326986), p 2. Applying Marlette, this
Court on remand held:
The trial court’s dismissal of plaintiffs’ nuisance claims remains vacated in
part and remanded to the trial court for further proceedings consistent with the
portion of our prior majority opinion discussing nuisance. The trial court’s
dismissal of plaintiffs’ trespass claims also remains vacated in part to the extent
plaintiffs’ claim is based on defendants unreasonably overburdening the easement
or straying from its boundaries. The trial court’s finding that defendants had
established an easement by necessity remains reversed.
We hold that the Laudenslager, Beaudoin, and Christie defendants have
established a valid easement by prescription as described and limited more fully
above. The trial court therefore need not reconsider the nature and extent of their
-4-
easements. We hold that Kraska has established an identical easement by
prescription at least to the extent of seasonal use. We further hold that no
defendants could establish an easement with a greater scope than the easements
held by the Laudenslager, Beaudoin, and Christie defendants. However, we are
concerned by the equities of the situation and conclude that the parties should be
afforded a full and fair opportunity to present and respond to evidence and argument
with the benefit of Marlette, Heydon, and our present opinion. Therefore, on
remand, the remaining defendants other than the Laudenslager, Beaudoin, and
Christie defendants shall have the opportunity to present further evidence and
argument in support of the existence and scope of any prescriptive easements they
might have. Plaintiffs shall likewise have the opportunity to respond. [Lamkin (On
Remand), unpub op at 7-8.]
This Court thus, with respect to the Hartmeier, McComb, Engram, and Kraska defendants,
remanded the matter to the trial court a second time for determination, directing the trial court to
afford the parties opportunity to be heard on the issue on remand. Lamkin (On Remand), unpub
op at 7-8. On second remand, the trial court conducted an evidentiary hearing, after which the trial
court held that “[o]n remand, defendants Hartmeier, McComb, Engram, and Kraska have shown
clear, cogent, and unrebutted proof of possession of Island Shore Drive that is actual, continuous,
open notorious, hostile, and uninterrupted for the relevant statutory period as required under
Marlette Auto Wash, LLC.” This case now returns to this Court as a result of retained jurisdiction.
II. DISCUSSION
A party claiming adverse possession must establish “clear and cogent proof of possession
that is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant
statutory period.” Marlette Auto Wash, 501 Mich at 202. A use is hostile when the use is
“inconsistent with the right of the owner, without permission asked or given, and which would
entitle the owner to a cause of action against the intruder.” Houston v Mint Group, LLC, 335 Mich
App 545, 559; 968 NW2d 9 (2021) (quotation marks and citation omitted). When the elements of
adverse possession have been met, “the law presumes that the true owner, by his acquiescence, has
granted the land, or an interest to the land, so held adversely.” Marlette Auto Wash, 501 Mich at
202 (quotation marks and citation omitted). An easement by prescription requires a party to
demonstrate the same elements as those for adverse possession, except for exclusivity. Id. A
prescriptive easement results from “no more than an unopposed, continuous trespass for 15 years.”
McDonald v Sargent, 308 Mich 341, 344-345; 13 NW2d 843 (1944).
Under MCL 600.5801, the relevant period of limitation for adverse possession and
prescriptive easement is 15 years. The 15-year period is counted from the time the original owner
is disseized of the land, MCL 600.5829(1), which occurs “when the true owner is deprived of
possession or displaced by someone exercising the powers and privileges of ownership.” Houston,
335 Mich App at 559. Successive periods of adverse possession (and, by analogy, prescriptive
easement), by different parties can be tacked to satisfy the 15-year period when there was privity
of estate between the parties. Id. at 560. Privity of estate is established only when (1) the deed
includes a description of the disputed property, or (2) when there is an actual transfer or
conveyance of the disputed property by parol statements made at the time of conveyance, or (3)
“a parol transfer may occur if a property owner is ‘well-acquainted’ with the previous property
-5-
owner and had visited and used the disputed property for many years before acquiring title.”
Marlette Auto Wash, LLC, 501 Mich at 203. In that scenario, “the parties must have understood
that an easement was appurtenant to the land.” Id. (quotation marks and citation omitted).
A claimant is not required to establish privity of estate, however, if a predecessor in interest
acquired the easement by adverse use for 15 years. “[A] claimant seeking to prove the existence
of a prescriptive easement may establish that the requisite elements were met by the claimant’s
predecessor in interest. When a prescriptive easement vests with the claimant’s predecessors in
interest, the easement is appurtenant and transfers to subsequent owners in the property’s chain of
title without the need for the subsequent owner to establish privity of estate.” Id. at 203-204.
In this case, this Court on remand discussed the proper application of Marlette:
On remand, defendants misconstrue Marlette as obviating the need for privity
altogether. Marlette held nothing of the sort. Rather, Marlette explained that
privity is no longer required for an easement to run with the land after the easement
has vested. It so happened that in Marlette, the requisite fifteen-year period for
adverse possession was satisfied by a single party. However, Marlette expressly
acknowledged that “[i]f ‘no single period’ of adverse use amounts to the fifteen-
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, 501 Mich at
203. The unambiguous significance of Marlette is that a prescriptive easement
vests immediately and automatically upon satisfaction of the statutory requirements
by either a single property owner, or a succession of property owners in privity with
each other. Then, and only then, is any need for privity obviated. This is not a
novel holding: a prescriptive easement that has already vested has always been
deemed to run with the land, even where parcels are later subdivided. See von
Meding v Strahl, 319 Mich 598, 611; 30 NW2d 363 (1948).
Therefore, we conclude that our Supreme Court’s order for us to consider
“whether each defendant established a prescriptive easement in light of Marlette”
implicitly instructs that any individual defendant may satisfy the statutory
requirements in one of three ways: (1) personally; (2) by tacking the defendant’s
own use to the use of a predecessor or predecessors in privity; or (3) by showing
that any prior owner of the property, or any chain of owners in privity with each
other, had satisfied the statutory requirements at any time in the past. [Lamkin (On
Remand), unpub op at 4-5 (footnote omitted).]
After an evidentiary hearing on second remand, the trial court held that the Hartmeier,
McComb, Engram, and Kraska defendants had established by clear and cogent evidence that they
had acquired a prescriptive easement across plaintiffs’ parcels for all means of ingress and egress
using Island Shore Drive. The trial court summarized the evidence as follows:
Eugene and Cynthia Hartmeier purchased their property in the Cady Point
Comfort Subdivision, located at 5208 Schlenker Drive, on March 22, 1999. Sharon
Blan and her late husband, Gomer Blan, purchased the property from Louise M.
-6-
Cahill on June 24, 1987. Sharon Blan lived at that home between 1987 and 1995.
Kimberly Clemons is the daughter of Sharon Blan. Beginning in 1993, Kristine
Clemmons [sic], her husband and their three children lived at the home with Sharon
Blan. In 1995, Sharon Blan moved out of the home, while Kristine Clemons, her
husband, and her three children continued to live there until 1999. John Hammons
is the son of Kristine Clemons. John Hammons lived at the home between 1993
and 1999.
Sharon Blan, Kimberly Clemons, Josh Hammons, and/or Kristine Clemons
used Island Shore Drive for a period of 11 years and 9 months. For 13 years and 6
months, when this action was initiated, the Hartmeier defendants used Island Shore
Drive. When Kimberly Clemons sold 5208 Schlenker Drive in 1999, it was her
express intent to include in the sale of the property the right to use Island Shore
Drive for all purposes that a public road could be used.
Dennis and Gloria McComb purchased their property in the Cady Point
Comfort Subdivision, located at 5182 Island Shore Drive, on December 18, 2003.
Phyllis and Conrad Podulka purchased the property from the Chismans on June 5,
1992. The Podulkas lived in their home until Mr. Podulka passed away on April
12, 2002. Mrs. Podulka continued living in the home until it was sold to the
McCombs.
The Podulkas’ use of Island Shore Drive lasted a period of 11 years and 6
months. For 8 years and 9 months, when this action was initiated, the McComb
defendants used Island Shore Drive. When Phyllis Podulka sold 5182 Island Shore
Drive in 2003, it was her express intent to include in the sale of the property the
right to use Island Shore Drive for all purposes that a public road could be used.
When the McComb defendants purchased 5182 Island Shore Drive in 2003, they
believed that they had acquired the right to use Island Shore Drive for all purposes
that a public road could be used.
Daniel and [D’Anne] Engram purchased their property in the Cady Point
Comfort Subdivision, located at 5256 Schlenker Drive, on June 3, 1999. Sharon
and Charles McAlister purchased the property from grantors Schlenker and
Hancock on February 1, 1971. Their home was constructed in 1974 and they lived
there [with their] daughter until the home was sold to Robert and Doris Missel in
1994. The Missels lived in the home until the[y] sold the property to the Engrams.
The McAlisters’ use of Island Shore Drive lasted a period of 23 years and
7 months. The Missels’ use of Island Shore Drive lasted a period of 4 years and 9
months. For 13 years and 4 months, when this action was initiated, the Engram
defendants used Island Shore Drive. When the McAlisters sold 5256 Schlenker
Drive in 1994, it was their express intent to include in the sale of the property the
right to use Island Shore Drive for all purposes that a public road could be used.
When the Missels purchased their home from the McAlisters [they] believed they
had acquired the right to use Island Shore Drive for all purposes that a public road
could be used. It was then their express intent to include the use of Island Shore
-7-
Drive for all purposes that a public road could be used in their sale of the property
to the Engram defendants in 1999. When the Engram defendants purchased 5256
Schlenker Drive, they believed they had acquired the right to use Island Shore Drive
for all purposes that a public road could be used.
Elmer and Pat Kraska purchased their property in the Cady Point Comfort
Subdivision, located at 5900 Island Shore Drive, on April 16, 1964. They, with
their two daughters, Kathleen and Kimberly, initially used the property as a summer
cottage until 1976. Then, from 1976, Mr. and Mrs. Kraska began living in the home
permanently and year-round until 1979, when their daughter Kathleen (now
Kathleen Kalin), began living at the home with her husband and their three
daughters. Finally, Kimberly obtained the property from her father in 1990, and
has been living in the home ever since. During the entire 48 years and 5 months,
that the Kraska family has owned their property, defendants have used Island Shore
Drive. The home at 5090 Island Shore Drive had been used as a year-round
permanent home for more than 36 years when this action was initiated. When
Elmer Kraska conveyed 5090 Island Shore Drive to his daughter, defendant Kraska,
it was his express intent to include in the sale of the property the right to use Island
Shore Drive for all purposes that a public road could be used. When defendant
Kraska obtained her home from her father, she believed she had acquired the right
to use Island Shore Drive for all purposes that a public road could be used.
From the moment the parcels discussed herein were improved, the owners
of such parcels, including defendants herein discussed, used Island Shore Drive
continuously as a means of ingress and egress. None of the owners of the parcels
discussed herein, including any defendants, asked for permission to use Island
Shore Drive, nor did Plaintiffs give them such permission. This use of means for
ingress and egress included incidental use by invitees, such as guests, delivery
vehicles, maintenance and utility vehicles, emergency vehicles, trash service, and
mail delivery. This use further included recreational use, such as walking and bike
riding. These uses continued until the instant litigation was commenced and
continues to this day.
The trial court’s factual findings are supported by the record, specifically by the transcript
of the evidentiary hearing held by the trial court on second remand.
A. THE HARTMEIERS
Cindi Hartmeier testified that she lives at 5208 Schlenker, which she and her husband
purchased in March of 1999 from Sharon Blan, Christine Clemons, and Kim Clemons. At the time
plaintiffs filed their complaint in February 2012, the Hartmeiers had owned their home for 12
years, 11 months. Cindi testified that she used Island Shore Drive to access the house since buying
it, that she considered the road to be a public road, and never asked permission to use it. Cindi
testified that she and her family used the road approximately twice a day since purchasing the
house in 1999, continuing that use even after plaintiffs’ 2004 memo, and that their guests and
service vehicles also used the road. Eugene Hartmeier testified similarly to Cindi.
-8-
In her deposition testimony, Kim Clemons testified that she is the daughter of Sharon
Blans, who built the house at 5208 Schlenker Drive in 1987 and moved into the house at that time,
and continued to the live in the home until 1999 when Clemons, her sister, and Sharon Blans sold
the home to the Hartmeiers. Clemons testified that she, her mother, and her sister were all owners
on the deed for the home and from 1987 to 1999, they used Island Shore Drive regularly to access
the home throughout those approximately 12 years, including driving and walking, and their guests
also used the road. She testified that she believed the road to be a public road and was never told
that it was not a public road. When they sold the home to the Hartmeiers, Clemons and her family
believed they had the right to use the road and intended to include in the sale the right to use the
road for all purposes that a public road can be used.
John Hammonds testified by deposition that he lived at 5208 Schlenker Drive from 1993
to 1999, that he was a child at that time and the home was owned by his grandmother, Sharon
Blans, and that he lived there with his parents and siblings. He testified that during that time they
used Island Shore Drive, they did not ask anyone’s permission to use the road, and that during that
time no one attempted to limit their use of the road. He believed that the road was a public road.
He testified that they used the road for driving, walking, biking, and operating his dirt bike.
To summarize, the Hartmeiers owned the property and used Island Shore Drive beginning
in 1999. The Hartmeiers’ predecessors testified that they lived on the property and used Island
Shore Drive from 1987 until 1999. The testimony supports a finding that the Hartmeiers and their
predecessors used the road for ingress and egress, by vehicular travel, for walking, biking, and
recreational use, and for the use of guests and service vehicles to the home.
To tack, the Hartmeiers were required to establish privity with their predecessors in
interest. As discussed, to establish privity in the context of a prescriptive easement, the party
asserting the easement must demonstrate either that (1) the deed includes a description of the
disputed property, or (2) when there is an actual transfer or conveyance of the disputed property
by parol statements made at the time of conveyance, or that (3) the property owner “is ‘well-
acquainted’ with the previous property owner and had visited and used the disputed property for
many years before acquiring title.” Marlette Auto Wash, LLC, 501 Mich at 203. In the third
scenario, “the parties must have understood that an easement was appurtenant to the land.” Id.
(quotation marks and citation omitted).
With regard to establishing privity, this Court in this case instructed the trial court:
We are not persuaded that the three methods for showing privity outlined
by our Supreme Court are strictly exclusive. In von Meding, our Supreme Court
held that under the circumstances of the case, it was “inescapable” that a
contemporaneous parol transfer had “undoubtedly” been the parties’ intentions.
von Meding, 319 Mich at 614-615. The “clear and cogent evidence” standard for
establishing a prescriptive easement “cannot be made out by inference.” Donohue
v Vosper, 189 Mich 78, 90; 155 NW 407 (1915). Therefore, a party cannot base an
adverse use claim on use made by a neighbor. However, it is clear from von Meding
that some degree of inference can be permissible to show privity. Thus, some other
analogous circumstance might also give rise to an “inescapable” conclusion that the
seller and purchaser “undoubtedly intended an easement to be included in the
-9-
conveyance, given the absence of direct proof. The lack of any other way to access
the property is an insufficient circumstance by itself to establish such a mandatory
inference. However, a historic lack of alternative access is not irrelevant and can
certainly be considered in conjunction with additional information or evidence.
[Lamkin (On Remand), unpub op at 6 (footnote omitted).]
We conclude that the Hartmeiers established privity under the second scenario. Although
they did not produce evidence of a specific parol statement, they established that they understood
that an easement was appurtenant to the land and Kim Clemons, the seller, testified that she
intended to convey to them the right to use the road. The “not irrelevant” historic lack of an
alternative access to the property and the testimony of the Hartmeiers and their predecessor in
interest gives rise to an “inescapable” conclusion that both parties to the transaction “undoubtedly”
intended an easement to be included in the conveyance.
B. THE MCCOMBS
Phyllis (Podulka) Davenport testified by deposition that she purchased the home at 5182
Island Shore Drive in 1992 from Donald and Joan Chisman, and lived there until December 19,
2003. She testified that she and her husband used Island Shore Drive daily during that time,
crossing plaintiffs’ property on the road. Their visitors also used the road, as did any contractors.
Davenport and her husband used the road by driving their vehicles and also walked on the road.
She testified they were never told not to use the road, and never asked permission to use the road.
During this time, she and her husband paid a special assessment tax for the maintenance of the
road. When she sold the home to the McCombs in 2003, she advised them of the special
assessment tax, and the deed advised the McCombs that the property abutted a private street,
though it did not identify the street. She further testified that by deeding the property to the
McCombs, she intended to transfer to them her right to use the road.
Gloria McComb testified that she lives at 5182 Island Shore Drive, having purchased the
home from Phyllis (Podulka) Davenport in 2003. She testified that at the time of purchase,
Davenport told her and her husband that the property was subject to a special assessment district
tax for the purpose of maintaining Island Shore Drive, and that they did, in fact, pay the special
assessment tax after purchasing the home. She further testified that she had visited the home
several times before she purchased it and understood that she would be able to use the road in the
same manner that the previous owner did; she was never told that she needed permission to use
the road, and never asked for permission. She further testified that the deed to the home referenced
the private road. She testified that Island Shore Drive was the only access road to the home during
the time she lived there and that she used the road consistently and frequently, driving on it with
her car and golf cart, pulling a boat trailer with a vehicle, and walking; the road was also used by
visitors, repair people and contractors, delivery trucks, and emergency vehicles. Gloria McComb’s
husband, Dennis McComb, testified consistently with Gloria.
We conclude that the McCombs established privity. They established that they understood
that use of the road was being conveyed when they purchased the home. The seller, Phyllis
(Podulka) Davenport testified that she intended to convey to the McCombs her right to use the
road. The deed references the abutting private street and she informed them of the special
assessment tax for maintenance of the road at the time of sale. The “not irrelevant” historic lack
-10-
of an alternative access to the property and the testimony of the McCombs and their predecessor
in interest gives rise to an “inescapable” conclusion that both parties to the transaction
“undoubtedly” intended an easement to be included in the conveyance.
C. THE ENGRAMS
Daniel Engram testified that he and his wife, D’Anne Engram, purchased 5256 Schlenker
Drive from Robert and Doris Missel on June 3, 1999, and the Missels in turn had purchased it from
Sharon McAlister in 1994. At the time the Engrams purchased the home, the only access to the
home was provided by Island Shore Drive. Before buying the property, Daniel drove by it
approximately 10 times and saw realtors and other vehicles using Island Shore Drive to access the
subdivision where the house was located. He was never told that he needed permission to use the
road.
After purchasing the home in 1999, he used the road daily to drive to work until he retired
in 2020. He testified that his wife also used the road to go to work from approximately 2004 to
2021. They also sometimes drove their motor home on Island Shore Drive, sometimes drove their
lawn tractor and quad runner on the road, and also walked and rode bikes on the road. He testified
that service contractors and emergency vehicles also used the road to access his house. He testified
that after receiving a letter from plaintiffs’ attorney in December 2004, he understood that he
already had a prescriptive easement to use the road for vehicle travel and did not require permission
from anyone to use the road. He further testified that the property was subject to a special
assessment district from 1999 to 2009, for which he paid taxes. He further testified that when he
bought the house, he understood that the only access to the property was via Island Shore Drive,
crossing plaintiffs’ property. D’Anne Engram testified consistently with her husband.
Sharon McAlister testified by deposition that she owned the property at 5256 Schlenker
Drive from 1971 until 1994. She and her husband built a home on the property and moved into
the home in 1974. She testified that she and her husband used Island Shore Drive daily to access
their property; the road was also used by service vehicles and emergency vehicles to access her
property, and her family also used the road to walk, ride bikes, and snowmobile. She testified that
during that time no one, including plaintiffs, told her that she needed their permission to use the
road, although she socialized with plaintiffs. She further testified that her husband often assisted
in maintaining the road by grading it. In 1994, the McAlisters sold 5256 Schlenker Drive to Bob
Missel. Thus, Sharon McAlister used the road for 20 years before conveying the property to the
Missels.
Because the Engrams’ predecessor in interest, Sharon McAlister, acquired a prescriptive
easement that was then appurtenant to the property, the Engrams established a prescriptive
easement without regard to whether there was privity. Marlette, 501 Mich at 203-204.
D. THE KRASKAS
Kimberly Kraska testified that she is the sister of Kathleen Kalin. She lives at 5090 Island
Shore Drive; although she now lives alone, the home started as a family cottage purchased by
Kimberly and Kathleen’s parents, Elmer and Pat Kraska, in April 1964. The family used the
cottage for seasonal use from 1964 until 1976, but by 1979, Elmer and Pat made the cottage their
-11-
full-time home. Kimberly testified that her sister Kathleen lived in the home with her three
children full time from 1979 to 1990. Kimberly testified that in 1990 she acquired the property
from her father and began living at the home full time; she continued to live at the home full-time
at the time of the evidentiary hearing. She testified that during the years that her family lived in
the home, they used Island Shore Drive daily to access their property. The family drove their cars
on the road and also rode bikes and walked on the road. Delivery trucks, emergency vehicles, and
family visitors also used the road to access the family home. When she acquired the property from
her father, she understood that she had the right as the property owner to use the road to access the
home, and that she would not have purchased the property without the right to use the road. She
testified that she never asked permission to use the road and was never told that she needed
permission to use the road.
The Kraskas established a prescriptive easement. At the time plaintiffs filed the lawsuit
in 2012, Kimberly Kraska had owned and lived in the home continuously for 22 years. Although
she has no need to demonstrate tacking, the evidence also supports such a finding by establishing
privity under the third exception; Kimberly was part of the same family as the seller and had visited
and used the property for years before Kimberly obtained the property from her father.
To summarize, all four defendants established that they obtained a prescriptive easement
to traverse the portion of Island Shore Drive that crosses plaintiffs’ property. The Hartmeiers and
the McCombs established a prescriptive easement by demonstrating privity that enabled them to
tack the periods of adverse possession of their predecessors in interest. The Engrams have a
prescriptive easement by virtue of the McAlisters’ prescriptive easement without having to
demonstrate privity; it was appurtenant to the land when the Engrams purchased the property. The
Kraskas established a prescriptive easement without the need to tack. For 15 years or more, each
defendant and/or their predecessor in interest used the road daily for vehicular travel for ingress
and egress, for visitors, deliveries, service providers, and emergency services vehicles. Each
defendant also used the road for walking, and for other means of traveling to and from their
respective properties, such as biking, towing boats, and moving recreational vehicles, such as an
RV or a quad runner. Defendants thereby demonstrated that each had acquired an easement by
prescription to use the portion of Island Shore Drive that crosses plaintiffs’ property for purposes
of ingress and egress to their own properties, whether by vehicle, walking, or some other means
of transit, and also for purposes of permitting visitors, service vehicles, deliveries, and emergency
vehicles.
Affirmed.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Michael F. Gadola
-12-