trial court in this case your honour's made two rulings and only two the trial judge ruled first of all that the fact that the owner of a lot to twelve and that's all the parties have consistently referred to it withheld reserve however you want to put it any easement rights from that lot when it was  with three or four other or some big substantive issues we're going to talk about but there's one that has to be stated first of all and that is everyone agrees to twelve never had any easement rights so what's the possible significance of its owner withholding easement rights seems to be some kind of a suggestion that they did a great thing and voluntarily relinquish them they didn't have them to begin with and that's the problem in this particular case other ruling that the trial court made was that the complaint filed by the trust never pled any additional use of the easement well it did and we'll talk about that in the moment but the key fact in this case is it didn't need to that followed necessarily the additional you say it is from the merger of the two lots the underlying error in this case not merely that those two rulings were wrong but that it's predicate was wrong is that the trial court either ignored or mis apprehended what we say to be the law with regard to prescripti certainly if not all he's ment's is that you cannot and to a dominant a state which is the beneficiary of a prescriptive easement additional land when that land is not itself  beneficiary of that easement if that was a separate piece of land that had was the beneficiary of an identical easement maybe you could do that but when they added land isn't a beneficiary and there's no question that two twelve was not a beneficiary can't use the easement to benefit that parcel yes and no the quote council before me yes adding the additional land that doesn't benefit from the  easement is a violation of the easement but it's not quite correct to say that it doesn't matter that you are using it for the benefit because once you merge the two you are using it for the benefit an easement can't be separated it belongs to this piece of land in that piece of land not at least if there isn't a grant that says so and by prescription and you never get grant so you know that didn't happen so once the merger occurs there is an improper use it's not an improper use of driving a truck across it or building a building that maybe can't be built but it is still burdening the serbians estate with more than it was burdened with for the addition  are you saying that the provision that specifically excluded the new lot from the benefit of the easement easement i understand you're saying that well it wasn't doing any more than it had to do but are you saying it was just it was a legal melody because it's impossible to combine two pieces and limit the easement of the first piece to that parcel i suppose under some set of circumstances maybe it could be different although i can't envision you know what they are but the rule in this the rule is that if you add land to a dominant a state which land doesn't have the benefit of the easement that's a violation of the easement by virtue of it's its a but where are you getting that from well we we have cited at least cited three cases in our brief the ellis case out of virginia the mclaughlin case out of massachusetts in the martin drive case out of connecticut which say that they say that merely adding the land to a dominant estate if that added land doesn't itself have easement protections is improper and we don't see anything i mean in the the ellis case says so in absolutely so many words it says the mere addition and then the can the connecticut case says as well the mere addition doesn't see the mirror the addition of and use it says the mere addition in it's the in the mclaughlin case likewise says the addition  it talks elsewhere about use but addition in use are discussed as two different things not is one inevitably being a part of the other the mission michigan the shade of walled case never quite goes as far as saying that but it never says the contrary what happened in shade a wall was is that people use the easement in exactly the way they used to before not one which is different except when they left the property late left by turning right rather than left or the other way around but while on the property and while on the easement their behavior was exactly the same the court said well that is a violation because you went to property that it wasn't governed by is a violation if you go on to another piece of property that isn't covered it doesn't say there is no violation if you do something else it dealt with the situation before it and that was the situation before and that opinion also talks about interesting things you can't add a bird or you can't change a bird and those are two very different things now what let's go back to the beginning to start with the idea that they reserve they withheld the easement and therefore that solves the problem now that confirms the problem the problem is that to twelve those who have an easement rights it didn't have any and so therefore the deed that says well you don't have any really was judge white and all of the accomplished nothing it didn't have an easement right it says we don't have an easement right well the problem is it doesn't have an easement right that's fine all it did was make clear that there's no intention or right to use the easement in any way but take the simplest fact we h all of the utility it's the electrical utilities come to what's on three or four via two twelve there's no room on three or four for transformers we played that right but doesn't it come the other way like to get to two  you don't go over these men well but to get to three or four and to use the seven thousand and forty seven added feet of building would you all on three over who are right it wouldn't be there it's a granted this is a slightly unique twist in things with us all or develops none of that would be their word not for two twelve to twelve is the only reason that that's seven thousand and twenty seven square feet satisfies if it or four and the whole piece of property including two twelve is seven thousand and twenty seven square feet bigger than it could have been otherwise and the moment anyone walks into three or four if the lights are on if the air conditioning is that the use meant is the easement is used to gain access to property and are does the access supply strictly to the dirt underneath and as long as you are walking on any dirt that you couldn't walk down before you're within the easement or the structure which is on the easement on the property the reason the property is being used it's i think it's artificial to say that three or four is exactly what three or four would have been before or it's irrelevant the three or four is now got a much bigger structure on it they can only be used if you have the benefit of two twelve because everyone who walks across a reason and enters three o four is taking advantage of what two twelve provides is it not therefore using two twelve is not the user of that easement using to twelve if they're watching television reading with the lights on taking advantage of the air conditioning none of which would be functioning otherwise are they not using to twelve so the reality is and i see my time is up so i don't want to go too much into a bottle of simply say to say that we will we voluntarily withheld easement rights from two twelve doesn't solve the problem it just acknowledges the problem and then for the court to say there was no you didn't plead any additional use well adding the two twelve was the violation it could have been a worse violation but it was the violation and therefore there was additional use of one question before so it is your understanding of the ruling first of all did is this  dismissal with or without prejudice i don't it doesn't say i mean i presume and considering that it found that there was no standing and it was right i would have always assumed it has to be in a sense without prejudice will come back later on if you can you know ok sure these things up we don't think we need to do that but you can't say something isn't right and then say by the way i'm dismissing it when it becomes right ok thank you can you have your full plaintiffs to count overburdening claim and press pass claim was cracked and it was correct for several reasons first as opposing counsel mentioned the deed that consolidated the two properties at issue three zero four and two twelve it is dixon expressly reserved any easement rights to the property formerly known as to twelve years dixon that property did not possess easement rights the consolidation that property doesn't possess easement rights today the consolidation of those two properties had no bearing whatsoever on these matters it simply consolidated the properties without wouldn't dispose of the case if in fact it was being used i agree with that ok i think that's a separate account that the basically the mere joining i agree if somebody was using the easement to access the former to twelve property that would be a different situation but that's not that's not this lawsuit the plaintiffs allege that the consolidation in and of itself constituted an overburdening of the easier it is this it's a very interesting situation because you it's almost like a law school exam you're positing that no one is go i mean are you saying that no one will be walking from the house on to that other property that's correct that access the house via the easement if somebody came in the front door of the house without accessing without accessing the three or four property via the easement then they could so they came in the front door off the dixon enter the house and then went to the to twelve property without ever coming and going via the easement i think that would be ok there is that there is a  we use the easement for lake purposes primarily other some some grass down there and people come to cut the grass and to access the boat so it's not being used very frequently at all the plaintiffs property  also has a front door on the sticks and and spans all the way around like three or four properties does the same thing the two twelve property just sits up on this block off so it would be almost virtually impossible to use the easement without going in the house somebody would have to climb up a block climb over a fence and then access the two twelve property are difficult to do but  agree i think even if the deede did not express lee state that the two twelve property lacked easement rights wasn't being provided easement rights even if it didn't say that i think we'd still be ok so long as there is no use of the easement to access that property and i believe that to be true because the shed well brul case tells us that strew in that case the is owned a piece of property adjacent to the shed walls that had an easement over their property they purchased a piece of property adjacent to theirs court and have problems that they wanted to build a grudge on that newly acquired piece of property that did not have usenet rights they consolidated their two parcels their deed didn't say at least the case law doesn't say their deeds says that this new property did not have easement rights but the court didn't have a problem with them consolidating the properties the court had a problem with them driving down that easement to access that new property that garage it didn't have a right that's not what that's not the issue here  nobody is accessing the two twelve property via usenet but shadwell confirms that consolidating the properties isn't a problem even building on that the property that didn't have easeme rights wasn't a problem according to shed wild because the court said the brew is this is a rough ruling for you but you're not without remedies you could buy property that goes all the way to the main road so you could access your property that is now consolidated and has a garage on it without going up and down the east mat which in turn defeats i believe the plaintiff's argument that because there is a transformer on this to twelve property i would argue so what the transformer wasn't placed there via the easement nobody used the easement to get the transformer there the transformer won't be serviced by people going up and down the easement because it's up property they were able to build a much larger house in that will overburden the so that is that would be a viable claim  if they showed it right that that if somehow the character of these move was changed by the fact that now they can have forty people of the time in their house that they couldn't before know only if those forty dition of people access the house via the easement and would not have done so before a bigger house doesn't mean more heavy heavier burden on the easement the house could be ten times the size it as if everybody comes and goes via the front door that has no break they have to show that the busa b easement substantially increased in all the rest of it that's that's correct i can't i'm no the judge dismissed the both the easement overburdening claim and the trespass claim on the basis that the that the merging of the properties does not constitute an overbearing and the judge dismissed the remainders of the claims on the rightness basis saying that those things have not been even alleged as of yet ok but that's what i mean when i say left it open yet so i heard a question for about dismissal with prejudice or without is absolutely correct didn't say my two intuition would tell me that the rightness issue almost necessarily would have had to have been without prejudice the other cite to may have statements that that state that adding additional property over burdens a piece of property but the the alice case for instance after it makes that statement it cites two other cases that speak to the use of the easement same thing with the wisconsin case that the plaintiffs cite to it speaks to the use of the easement which which is the real way there's a case from i believe it's connecticut that says adding additional property does not overburden these men as a matter of law so i think those cases have no bearing whatsoever on michigan law but to be clear michigan does not require overburdening if you were using the easement to benefit that parcel doesn't matter how slight right because that is the you're just saying we're not doing that if one were using the easement to access to twelve that would be a different case than we have today yes nothing inconsistent with them in michigan and the property law is property law it's probably the oldest body of law we have the most uniform and consistent around the country and there's nothing to suggest that michigan law regarding prescriptive these  different than any of these other states and remember that the limitation on adding property is in prescriptive easement cases for the reason that prescriptive easement cases amount of the confiscation of property without any compensation if in a grant you want to do it go ahead you can do anything you want when you're doing it voluntarily but when it's involuntary things are going to be carefully women ated the limit so you said there's no inconsistency between those cases in michigan and michigan supreme courts as well when we haven't dealt with it precisely go elsewhere and in a log well we've gone elsewhere and we found and whatever you want to say was in these cases say the mere addition not the addition which maybe could be seen as then counsel says well there's this connecticut case to the contrary says there are contrary cases you notice of those and cite a one of them if there are any and frankly our brief would have acknowledged them if there were any because we'd have to do it and we did in one regard we said connecticut has a rule that the first glance seems to be the contrary but then connecticut subsequently said but not in cases of prescriptive easements in cases where there is no indication that the parties meant for this to happen well there is no intent to look at in prescriptive easements in grant cases yes but not in prescriptive easement cases so the connecticut key said yes and then it says but not always and not in this particular case so we haven't seen one case from elsewhere that says the cases we've cited are wrong we've got a mission we've got michigan that doesn't say to the contrary and addition and in the one case it wasn't so much the addition of a parcel the ellis case said look the problem here is the description of the dominant estate is not precise enough for us to know what's included and what's not included and because of the rule is that you can't add without violating a prescriptive easement property to the dominant estate we got to know what the dominant state is so there was nothing whatsoever in that case that suggested there had to be a use or there was some limitation it was a statement in the purest possible form because that simply was not an issue and if i could point out there's a good reason for this a dominant estate gets to use the s into states land it has an added benefit it has something you didn't have before the right to use somebody else's land necessarily the serbian the state has lost something it now uses its land subject to somebody else's use and so that has to be carefully circumscribed when and when you add so when you add property to a dominant a state you are now putting on a heavier burden a bigger burden whatever you want to call it it's a different more extensive burden than it was before and that is by definition of violation of a prescriptive easement at least and i would clued conclude with the observation we've heard variety of comments here and spawns to questions and volunteer about what's gone on here is this happened is that having let's remember the stature of status of this case we played the case we played it we believe compatibly with the law and they filed a motion before there was any further development of the case and are now trying to say well nobody did this and they'd have to prove this and they'd have to prove that we are in for an awful long to have done that nobody's been given an opportunity to question is is there a prospect a decent credible prospect that as this case develops it will be demonstrated that there  an improper addition we think that occurs by virtue of having added the property but if you're going to look at who walks across the land and whatever well you know let's we find out and i can stand here and say because i've been told just like like that or else i missed you know when we when we played this case they had just gotten the permanent we're going to build so we had to talk about this will happen we said inevitably adding all of this extra profit us will bring along more people we were very cognizant of the fact your honor one of the earlier cases in this series of cases was dismissed because the johnson trust had waited too long well within the statute of limitations but they got slapped with the doctrine of l you should have brought this sooner although everyone knew what the problem was the suit just wasn't fast enough so now do we have to say well now you're saying you did it too soon you got to wait a while well then what happens do we later on find out we waited too long they got they applied for permission to add all this property history says they were clearly going to do what they said they were going to do they've always you know done it before they got permission to do it so we said fine to avoid latches let's sue and we allege adding the property is a violation in and of itself and second you don't add seven thousand square feet of indoor space in outdoor space not just yard but patios and garages and whatever else to property if you're not going to use them we alleged what we could allege we can't allege something that had happened that hadn't happened yet but it certainly looked like it was going to happen and ripens doesn't prove that it had happened it simply proves that there are so you've got circumstances where there is a very substantial likelihood that it will happen and because we knew that they already built they had not built the additions they had started with the boat house it was a little cottage in a boat house then they built a big house and they merged the two together that was twenty thousand square feet then they went to back to the city and said we want to add seven thousand more fought that the city said go ahead you can build the seven significant it is yes there is an entrance off of dixon but this easement across the property has regularly been used and increasingly been used to get to this property and this is no one big structure the boat house and the house are together you're walking in through the boathouse you go to the house there's a vestibule between the two you can walk in and turn right go to the house and left go to the boat house entry off of the easement is to the entire structure and anyone who enters that structure to go to a party or whatever else is certainly likely enough that a claim of damages is appropriate not to go on to the other seven thousand square feet it's like saying i've got cancer and this is going to happen to me in a while but it hasn't happened to me yet but you cause the cancer sort suja you know you can't sue about that because it hasn't happened yet enough as happened to justify the genuine fear that  violations of the easement will occur as well as the fact that the vision the cases we've cited say that's a problem and there's absolutely nothing to the contrary share wall doesn't say otherwise none of the other cases say otherwise no