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
PAMELA STAPLES, UNPUBLISHED
February 15, 2024
Plaintiff-Appellee,
v No. 364666
St. Clair Circuit Court
ANGELA WADE and DAVID WADE, LC No. 21-001471-CZ
Defendants-Appellants.
Before: PATEL, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
In this real property dispute, defendants appeal by right the trial court’s order granting
summary disposition under MCR 2.116(C)(10) in favor of plaintiff. Finding no errors warranting
reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff and her late husband purchased a home on Morris Road from the Mowers in 1977.
All the parties agree that when plaintiff purchased the house, it was “land locked” in that it did not
have direct access to Morris Road. Plaintiff’s access, therefore, was by a private driveway that, at
the time of the purchase, was depicted in a survey as being on her property. After defendants
purchased the neighboring parcel in 2019 and new surveys of the properties were conducted, it
was discovered that the driveway actually ran through defendants’ property.
Plaintiff filed this action after she alleged that defendants began blocking her access to the
driveway. In her complaint, plaintiff sought title to the driveway through adverse possession or
the right to use the driveway through an easement by prescription. Plaintiff also sought a
preliminary and permanent injunction prohibiting defendants from blocking access to the driveway
and for an order granting an easement or quieting title over the driveway.
Plaintiff subsequently moved for summary disposition under MCR 2.116(C)(10), asserting
she was entitled to a prescriptive easement or adverse possession over the driveway because her
use of the driveway was continuous, hostile, and uninterrupted since 1977. Defendants opposed
the motion, asserting that plaintiff could not show hostility because her use was permissive and
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because plaintiff believed the road to be hers. The trial court granted the motion and, after denying
defendants’ motion for reconsideration, this appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Zarzyski v Nigrelli, 337 Mich App 735, 740; 976 NW2d 916 (2021). Summary disposition is
proper under MCR 2.116(C)(10) when, “[e]xcept as to the amount of damages, there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a
matter of law.” “A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for a
party’s action.” Zug Island Fuels Co, LLC v Dep’t of Treasury, 341 Mich App 319, 326; 989
NW2d 879 (2022) (quotation marks and citation omitted). “A trial court may grant a motion for
summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary
evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine
issue with respect to any material fact.” Id. (quotation marks and citation omitted). “A court may
only consider substantively admissible evidence actually proffered by the parties when ruling on
the motion.” Id. (quotation marks and citation omitted).
III. ANALYSIS
Plaintiff first argues that the trial court erred when it failed to consider the testimony from
the daughters of defendants’ predecessor in interest, George Webb, who stated that plaintiff’s use
was permissive and, therefore, could not be “hostile.” Webb, who owned the property neighboring
plaintiff’s property in 1977, had two daughters, Cherie Lazarus and Renee Anderson. In response
to plaintiff’s motion for summary disposition, defendants submitted affidavits from Lazarus and
Anderson in which they stated that Webb “allowed the Mowers a variance to cross our property to
get to the county road . . . .” On the basis of this statement from Lazarus and Anderson, defendants
sought to defeat plaintiff’s claim. For its part, the trial court considered the statements from
Lazarus and Anderson to be inadmissible hearsay and, therefore, could not be considered for
purposes of plaintiff’s motion. We agree with the trial court and affirm its order.
As an initial matter, aside from the argument that the affidavits from Lazarus and Anderson
demonstrated permissive use, defendants did not argue in the trial court that the affidavits were
not based on hearsay or that an exception to hearsay applied. These arguments are unpreserved,
see Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008), and are therefore waived. See
Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, ___ Mich App ___; ___ NW2d ___
(2023) (Docket No. 359090), slip op at 5.
Even if the issue were not waived, defendants’ arguments are unpersuasive. Defendants
first argue that the trial court erred when it concluded that the affidavits were not made on the basis
of personal knowledge. Defendants correctly note that each of the Lazarus and Anderson affidavits
begin with the statement that the affidavit was made on the affiant’s personal knowledge. Thus,
we agree with defendants to the extent the trial court meant to find that the affidavits, as a whole,
were not made on the basis of personal knowledge. However, it is patently obvious that the trial
court did not intend to make such a finding. Rather, it is apparent that the trial court was
highlighting the fact that neither Anderson nor Lazarus were present when Webb purportedly gave
permission to plaintiff’s predecessor in interest. In other words, by stating they lacked personal
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knowledge, the trial court found that the statements concerning Webb’s purported grant of
permission were hearsay.
In both the Anderson and Lazarus affidavits, the affiants stated that “[m]y father, George
Webb, Jr., allowed the Mowers a variance to cross our property to get to the county road . . . .”
Thus, the statement concerns a conversation between Webb and the Mowers concerning Webb’s
decision to permit the Mowers to cross the Webb’s property, which is “statement, other than the
one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Ykimoff v Foote Mem Hosp, 285 Mich App 80, 105; 776 NW2d 114
(2009) (quotation marks and citation omitted). Accordingly, we disagree with defendants’
assertion that the statements are not, themselves, hearsay.
The party opposing a motion for summary disposition under MCR 2.116(C)(10) must
proffer substantively admissible evidence. Zug Island Fuels, 341 Mich App at 326. Hearsay is
not substantively admissible unless an exception applies. MRE 802. To that end, defendants assert
that the statements in the affidavits are admissible as a statement against interest under MRE
804(b)(4). Under that rule, a hearsay statement is admissible if the declarant is unavailable and is
a statement that:
(A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate
the declarant’s claim against someone else or to expose the declarant to civil or
criminal liability; and
(B) if the statement tends to expose the declarant to criminal liability and is
offered to exculpate the accused, it must be supported by corroborating
circumstances that clearly indicate its trustworthiness. [MRE 804(b)(4).]
The statements in the Lazarus and Anderson affidavits concerning the “variance” do not
constitute statements against interest because the purported statement by Webb to the Mowers was
not “so contrary to [Webb’s] proprietary or pecuniary interest . . . .” See id. By purportedly
granting the Mowers a variance, Webb was protecting his interests, not undermining them. See
Mulcahy v Verhines, 276 Mich App 693, 702; 742 NW2d 393 (2007) (“Adverse or hostile use is
use that is inconsistent with the right of the owner, without permission asked or given, that would
entitle the owner to a cause of action against the intruder for trespassing.”). Accordingly, there
was no exception to the hearsay rule that applied, and the trial court did not err when it granted
plaintiff’s motion for summary disposition.
Next, defendants argue the trial court erred when it granted plaintiff’s motion because
plaintiff failed to demonstrate her entitlement to relief by clear and cogent evidence. In support,
defendants assert that the location of the driveway has moved over the years and, thus, plaintiff
failed to show continuous use for the prescriptive period. Defendants also assert the trial court
erred because plaintiff’s mischaracterizations of the evidence affected the trial court’s ruling. We
disagree.
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“An easement by prescription results from use of another’s property that is open, notorious,
adverse, and continuous for a period of fifteen years.” Id. at 699 (quotation marks and citation
omitted). The easement “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.” Astemborski v Manetta, 341 Mich App 190, 197; 988 NW2d 857
(2022) (quotation marks and citation omitted). “Thus, a prescriptive easement is no more than an
unopposed, continuous trespass [on another’s property] for 15 years.” Id. at 198 (quotation marks
and citation omitted; alteration in original).
“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, 276 Mich App at 699. Thus, the
plaintiff must present “clear and cogent” evidence to demonstrate entitlement to a prescriptive
easement. Astemborski, 341 Mich App at 199.
“[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
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. [Id. at 199,
quoting McQueen v Black, 168 Mich App 641, 642 n 2; 425 NW2d 203 (1988)
(citations omitted).]
On appeal, defendants do not take issue with a particular element plaintiff was required to
show, but rather challenge the finding that plaintiff’s evidence met the clear and cogent standard.
First, defendants point to purported mischaracterizations by plaintiff over the age of the driveway
and whether she ever intended to move the driveway. Defendants fail to explain, however, how
either of the facts, even if true as described by defendants, has any relevance to whether plaintiff
satisfied her burden to show by clear and cogent evidence the elements of a prescriptive easement.
For example, whether the driveway was 100 years old or 86 years old was not relevant to any
element plaintiff was required to show, since neither party disputed that plaintiff used the road for
the prescriptive period. Similarly, whether or not plaintiff intended to move the driveway at some
point since the 1970s is not relevant to any element plaintiff was required to show, and the simple
fact the driveway moved is, standing alone, not indicative of plaintiff’s intent.
Plaintiff was required to show by clear and cogent evidence that she had unopposed and
continuous trespass on the Wade Property for 15 years. In her affidavit, plaintiff stated she owned
the Staples Property since 1977, which had always been accessed by a private driveway from her
home to Morris Road. Plaintiff asserted that she “maintained continuous possession and use of
the private lane in a manner that is open, notorious, and adverse to the rights of the neighboring
property owner,” including “maintain[ing] [the] driveway and lawn . . . .” None of the substance
of these facts were disputed by defendants, with the exception of whether plaintiff’s predecessor
in interest was given a “variance” by Webb, and none of the issues raised by defendants undermine
any of the elements plaintiff was required to show.
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Defendants also assert that plaintiff’s evidence was not clear and cogent because the
driveway in question slowly moved over the years. This argument, however, was not raised below
by defendants until filing their motion for reconsideration. As a result, defendants failed to
preserve the argument for appeal, see Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App
513, 519; 773 NW2d 758 (2009), and the issue is waived. Tolas Oil & Gas, ___ Mich App at ___;
slip op at 5. But even if defendants had not waived the argument, it nevertheless lacks merit.
Without any citation to record evidence, defendants assert there is “little question that the
Disputed Drive has migrated eastward onto Appellant’s property over the years.” Thus, defendants
claim there is a question of fact as to where the driveway existed for the last 15 years, and the trial
court should not have granted a prescriptive easement on the basis of the most recent survey.
Defendants’ assertions, however, are contrary to their own affiant, Robert J. Arnold, Jr., a licensed
professional surveyor, who stated in his affidavit submitted in response to plaintiff’s motion for
summary disposition that “the Gravel Driveway and Private Lane depicted on my 2019 Survey are
depicted as they were in the 1988 Survey done by Surveyor Jerry James for the Webbs.” Thus,
according to Arnold’s testimony, the location of the driveway had not changed for the last 34 years,
far longer than the required prescriptive period of 15 years. See MCL 600.5801(4); Marlette Auto
Wash, LLC v Van Dyke SC Props, LLC, 501 Mich 192, 195-196; 912 NW2d 161 (2018).
Affirmed. Plaintiff, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Sima G. Patel
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
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