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### STATE OF MICHIGAN

COURT OF APPEALS

MARY ANN LAMKIN and STEVE LAMKIN,

Plaintiffs-Appellants, UNPUBLISHED September 1, 2016

v No. 326986 Livingston Circuit Court EUGENE HARTMEIER, CYNTHIA HARTMEIER, 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, LC No. 12-026600-NZ

Defendants-Appellees,
and

RONALD THYBAULT and t he Estate of MARY WECKESER,

Defendants.

Before: F ORT H OOD , P.J., and R ONAYNE K RAUSE and G ADOLA , JJ.

P ER C URIAM

.
Plaintiffs appeal by right the trial court’s resolution of the ir claims regarding defendants’ use of Island Shore Drive, a private dirt road that wraps aroun d the northwest shore of Oneida
Lake 1 in Hamburg Township, in Livingston County. The western end of Island Shore Drive, located in Section 21, leads to and intersects M-36. To the ea st, Island Shore Drive connects to roads that provide access to lots on the northeast side of the lake, located in Section 22. The

1 Oneida Lake was origina lly known as Island Lake.-2- dividing line between Sections 21 and 22 roughly bisects Oneida Lake. Plaintiffs own a parcel of property in Section 21 through which Island Shore Drive runs , and they contend that defendants, who own lots on the northeast side of Oneida Lake i n Section 22, have no right to use Island Shore Drive, and if they did, they have exceeded the scope of any such right. We affirm in part, reverse in part , vacate in part, and remand for further proceedings.

From the publicly available records we can find, it appears th at in 1853, the relevant property in Section 21 was originally patented to William Place way, and the relevant property in Section 22 was originally patented to George Galloway. None of the property owned by plaintiffs ever came under common ownership with any of the pro perty owned by defendants. By 1880, Placeway had conveyed the Section 21 property to Thoma s Shehan, who split the property into ten lots and deeded an express easement, now know n as Island Shore Drive, for access to M-36, to each parcel. At that time, an A. Mercer own ed the portion of Section 22 to the northeast of Oneida Lake, then still called Island Lake, an d out of that property two platted subdivisions were carved, Cady’s Point Subdivision in 1922 and Island Lake Shores Subdivision in 1933. Although no express agreement for access was ever exe cuted, these two subdivisions included internal roads, Point Co mfort Drive and Lake View Driv e, respectively, that merged together at their respective we stern ends roughly at the same p oint as the eastern end of Island Shore Drive, separated by two unplatted parcels. Point Comfort Drive was eventually renamed
Schlenker Road. In 1949 the C ounty Road Commission passed a re solution purporting to change the name of Lake View Drive to Island Shore Drive, although in 2005 the Hamburg Township
Board of Trustees enacted anothe r resolution purporting to make the same name change.

Plaintiffs assert that the Section 22 properties historically had some kind of access to main roads through the property lying to their east, which was also originally owned by Galloway but was owned by Governor Edwin Winans by the time of the Shehan split and by the Pleasant Lake Hills Corporation and Lakelands Golf Club by the time the Island Lake Shores Subdivision was platted. From the records we have found, there is some hint that there may have been access through that property in 1930. However, Mary Ann L amkin testified that she had thoroughly researched the history of the access situation, and she determined that it was the Lakelands Golf Club that cut off access through its land, where upon the Section 22 subdivision
owners connected their internal roads to Island Shore Drive on the Shehan property. She indicated that from that time, in “the late ‘40s,” the Section 22 subdivision owners accessed their property over Island Shore Drive. However, she also indicated that they may have had access via a sawmill until the Cady’s Po int Comfort subdivision was re vised in 1960. Consequently, the evidence, such as it is, reveals that the Section 22 subdiv ision owners have been making
exclusive use of Island Shore Dr ive through the Shehan propertysince at least 1960, and possibly a decade or more longer. It is undisputed that defend ants’ properties are land-locked
and have legally been so since the subdivi sions were created.

Plaintiffs acquired their property in 1980. We note that plai ntiffs, or singularly plaintiff Mary Ann Lamkin, have been involved in a considerable number of prior civil actions involving their efforts, some of which were merito rious, and convicted of several crimes arising out of their prior efforts, to preclude the use of Island Shore Drive by oth ers. See Lamkin v Hamburg Twp Planning Comm , unpublished opinion per curiam of the Court of Appeals, issue d November 29, 2007 (Docket No. 265225); Read Lumber & Hardware Inc v Lamkin , unpublished opinion per curiam of the Court of Appeals, issued July 3, 2012 (Docket No. 303597); Lamkin v Engram

,-3- 295 Mich App 701; 815 NW2d 793 (2012); People v Lamkin , unpublished opinion per curiam of the Court of Appeals, issued July 25, 2013 (Docket No. 308695). Several other criminal appeals were sought, but this Court denied leave for lack of jurisdicti on or lack of merit. Plaintiff Mary Ann Lamkin was also found liable for defamation that impliedly arose out of her efforts to halt the expansion of a business that used to operate at the interse ction of Island Shore Drive and M36. Glazer v Lamkin , 201 Mich App 432; 506 NW2d 570 ( 1993). Several of the above cases also involved a business at the same location. 2

Plaintiffs maintained from the outset that defendants had a ri ght to make use of Island Shore Drive for the limited purpose of gaining ingress and egre ss between their properties and
M-36. At issue was the extent and nature of defendants’ use of the easement, not, strictly speaking, whether they could ever use it at all. Consequently, plaintiffs essentially conceded
from the outset that defendants had some manner of a prescripti ve easement, which, as we will discuss, we would find establish ed by the evidence in any event . The trial court, however, concluded that defendants had acquired a variety of easements b y necessity. As we will also discuss, the trial court erred in so finding, although it appea rs that to some extent the trial court’s conclusion may reflect an understa ndable confusion as to termin ology.

A grant or denial of summary disposition is reviewed de novo o n the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). “When reviewing a gr ant of equitable relief, an appellate court will set aside a trial court’s factu al findings only if they are clearly erroneous, but whether equitable relief is proper under those f acts is a question of law that an appellate court reviews de novo.” McDonald v Farm Bureau Ins Co , 480 Mich 191, 197; 747 NW2d 811 (2008). Although easement actions are equitable in na ture, the precise extent of an easement right held by a party i s a factual question reviewed f or clear error. Schumacher v Dep ’ t of Natural Resources , 275 Mich App 121, 130; 737 NW2d 782 (2007).

The holder of an easement possesses “a right to use the land o f another for a specific purpose.” Bowen v The Buck & Fur Hunting Club , 217 Mich App 191, 192; 550 NW2d 850 (1996). Easements could originally only be created by an expre ss grant. Coolidge v Learned , 8 Pick (Mass) 504 (1829); Frandorson Properties v Northwestern Mut Life Ins Co , 744 F Supp 154, 156 (WD Mich, 1990). Today, easements can also be establi shed by necessity and by prescription. The concepts are distinct, although “sometimes t he same evidence will support
either.” Coolidge , 8 Pick 504; see also Chapdelaine v Sochocki , 247 Mich App 167, 174; 635 NW2d 339 (2001). An easement by necessity arises by operation of law where a common owner creates a land-locked parcel, e ither by conveying a parcel that is land-locked or conveying property such that their remaining property is land-locked. Schumacher , 275 Mich App at 130-

2 We emphasize that some of those matters were meritorious in pl aintiffs’ favor. The significance is primarily that the use of Island Shore Drive ha s been contentious and troubling, all the more so for plaintiffs g iven their unique location on t hat road. Drawing the conclusion that plaintiffs are generically “litigious” from their understa ndable and specific concern with the
use of Island Shore Drive would be grossly unwarranted.-4- 131. The underlying principle is that unless the parties to th e conveyance clearly indicated that they intended otherwise, they ar e presumed to have intended the land-locked parcel to have a right of access, and an easement by necessity will be limited i n scope to, as the name suggests, reasonable necessity, not mere convenience. Chapdelaine , 247 Mich App at 172-173.

As noted, the evidence in this matter shows that none of the S ection 22 properties ever came under common ownership with the Shehan property. Conseque ntly, no matter what the practicalities of the situation might be, it is legally impossi ble for any defendants to have any easement by necessity over Island Shore Drive. To the extent the trial court found that defendants had an easement by nece ssity, the trial court erred and is reversed.

In contrast, an easement by prescription is essentially a matt er of adverse possession, except that instead of exclusivity, it requires open, notorious , adverse, and continuous use of another’s property for the re quisite fifteen-year period. Mulcahy v Verhines , 276 Mich App 693, 699; 742 NW2d 393 (2007); Matthews v Dep ’ t of Natural Resources , 288 Mich App 23, 37; 792 NW2d 40 (2010). For the use to be sufficiently “continuous,” t he continuity need only be
consistent with “the nature and ch aracter of the right claimed. ” von Meding v Strahl , 319 Mich 598, 613-614; 30 NW2d 363 (1948). An easement by prescription can also be established if the parties intended for a right to be created and subsequently act ed as if it had, but for some reason failed to comply with the formalities required to do so correct ly. Mulcahy , 276 Mich App at
699-700.

There is no evidence that Shehan intended to create any right for the benefit of any parcel of property other than the parcels carved out of his own. Inde ed, the Section 22 subdivisions did not exist until long after Shehan made the split that resulted in the creatio n of Island Shore Drive. Furthermore, there is at least some evidence that when the subd ivisions were created, there was no need for the owners of parcels therein to make use of Island Shore Drive, suggesting that the prior common owner of that portion of Section 22 also had no ne ed to make use of Island Shore Drive. Likewise, there is no evidence that any of plaintiff’s predecessors in interest ever intended to grant any of defendants’ predecessors in interest a ny rights to make use of Island Shore Drive. Consequently, defe ndants cannot have a prescripti ve easement arising out of an intended but imperfectly created servitude.

Nevertheless, the evidence unambiguously shows that the Sectio n 22 subdivision lot owners have made open, notorious, adverse, and continuous use o f Island Shore Drive for ingress and egress between their property and M-36 since at lea st 1960 and possibly since the late 1940’s. There is no dispute that they presently have no o ther way to do so, and what historical evidence exists comes from plaintiffs themselves, sh owing that by the time they acquired their property, Island Shore Drive had already been the only available route for at least twenty years, well in excess of the requisite fifteen.

Notwithstanding plaintiffs’ eff ective concessions below that d efendants had the right to use Island Shore Drive for ingress and egress, they contend on appeal that defendants lack prescriptive easements because they have not each shown that they personally , or they and their direct predecessors in interest, have used Island Shore Drive f or the requisite fifteen-year period. We will consider this argument, because a party generally “is e ntitled to the benefit of testimony-5- in support of a verdict in [their ] favor despite [their] expres sion of an opinion inconsistent
therewith.” Ortega v Lenderink , 382 Mich 218, 223; 169 NW2d 470 (1969).

We have found no published opinion s expressly addressing the e xtent to which a party seeking to establish an easement by prescription may rely on us es made by neighbors, 3 and we find the two unpublished opinions that come close to be disting uishable. 4 In Pamela B Johnson Trust v Camp , unpublished opinion per curiam of the Court of Appeals, Docke t No. 309913 (issued June 4, 2013), this Court addressed whether a party hadexceeded the scope of a particular easement, the existence of which was not disputed, a nd found that whether any other third parties had abused the easement was not relevant to wheth er the defendant had done so.
Id ., slip op at 2-3. In Keiser v Feister , unpublished opinion per curiam of the Court of Appeals, Docket No. 282531 (issued March 2, 2010), this Court concluded that “collective tacking” had never been recognized in Michigan, so a party seeking to establ ish an easement by prescription could not do so simply by showing that someone in the neighborh ood had done so for the requisite period. Id ., slip op at 6-7. Johnson Trust clearly addresses an inapplicable scenario, and although the distinction between this case and Keiser is more subtle, that distinction illustrates an important factual consideration in this case.

In particular, although a party seeking an easement right must establish that right by “clear and cogent evidence,” Matthews , 288 Mich App at 37, there is no particular requirement
that that evidence cannot be circumstantial. We cannot find an y opinion directly so holding, but we note that the “clear and cogent” quantum of proof is high, b ut not as high as the “beyond a reasonable doubt” standard required in criminal cases. McQueen v Black , 168 Mich App 641, 645 n 2; 425 NW2d 203 (1988). There is no doubt that circumsta ntial evidence may form the basis of a criminal conviction. See, e.g., People v Hoskins , 403 Mich 95, 100-101; 267 NW2d 417 (1978). While we agree with the holding in Keiser that a party seeking to establish a prescriptive easement may not “tack” the use made of land by th eir neighbors, we entirely reject any suggestion that proof of the requisite privity with predece ssors must necessarily only be
based on direct evidence. 5 See von Meding , 319 Mich at 614-615; see also Gay v Wilson , 327

3 Although we note in passing, the theory being merely tangentia l to the instant matter, that privity is unnecessary “to employ tacking of holdings to obtain the 15-year minimum under the doctrine of acquiescence.” Siegel v Renkiewicz Estate , 373 Mich 421, 426; 129 NW2d 876 (1964).

4 Unpublished opinions of this Court are not binding, MCR 7.215( C)(1), and although
consideration thereof is disf avored, we may do so and may find them persuasive.

5 Our dissenting colleague contends that we fail to address case law holding that each party seeking to establish a prescriptive easement must prove privity of estate. We find this baffling, because we agree with those holdings; we simply perceive no rea son why such proofs may not rely on inferences and indirect or circumstantial evidence the way essentially anything else may usually be used to prove essential factual elements of any othe r matter. We respect our dissenting colleague’s opinion th at the evidence introduced her e is insufficient, but we respectfully disagree.-6- Mich 265, 270-271; 41 NW2d 500 (1950). The unusual scenario he re illustrates precisely why: the very fact that, for well over twenty years 6 before plaintiffs even bought their property, there was no other way to gain access to the Section 22 subdivisions , intrinsically constitutes powerful
evidence that each and every lot owner—not merely “someone”— was making use of Island
Shore Drive. That would defini tionally include the direct pred ecessors in interest of each
defendant. 7

Where we disagree with plaintiffs and the trial court is their respective assessments of
how defendants may make use of Island Shore Drive. It is clear th at the easement depends on
the purpose for which it is being used, not the particular means of convey ance. Obviously, unnecessary dallying, unnecessary noise, unnecessarily destruct ive maneuvering, and other such frivolities or aggravations beyond what intrinsically accompani es any particular conveyance will overburden the easement. However, beyond that, there is no rea son why defendants should have to use a car for ingress and egress if they choose not to. The y would be free to make use of walking, bicycling, driving, or whatever other legal 8 form of conveyance they wish within the physical limitations imposed by the path. They are simply not free to do so for any reason or in any way other than for ingress a nd egress between their lots an d M-36. Conversely, just because, say, walking could be perceived as somehow “less burde nsome” than driving does not mean it is automatically permitted unless a defendant is walkin g the easement for the purpose of ingress and egress.

We therefore affirm, to a limited extent, the trial court’s fi nding that defendants enjoy a prescriptive easement for ingress and egress between M-26 and t heir 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

6 As a general matter, at that point the right to make use of an easement traditionally becomes presumed, and the owner of the servient estate must show that s uch usage was permissive. Haab

v Moorman , 332 NW2d 126, 144-145; 50 NW2d 856 (1952). This does not, of course, shift the ultimate burden of proof, but it does establish that the jury m ay draw certain inferences. Widmayer v Leonard , 422 Mich 280, 289-291; 373 NW2d 538 (1985).

7 In Keiser , the sought-after easement invo lved back-lot owners hoping to establish a right to make use of waterfront property. Such a use is, obviously and vastly distinguishable from the case at bar, entirely optional. G aining actual access to the p roperty on which one lives is not.

8 Plaintiffs have contended that ATVs, or all-terrain vehicles, are illegal to use on the Shehan portion of Island Shore Drive because they are not allowed to b e used on roads. We express no opinion as to that point, but we note that it is common knowled ge that ATVs can be considerably louder than motor vehicles, or at least generate a substantiall y different kind of noise, are typically used for recreation rath er than truly for transportat ion, and may cause unique damage to an unpaved road surface. We do not hold that they are or are n ot permissible, per se, but we leave it to the parties on remand to evaluate their legality an d whether they could ever be permissible. Rather, we hold only that the use of an ATV on th e Shehan portion of Island Shore Drive for recreational purposes is absolutely not permitted by the easement.-7- egress does, consistent with oth er reasonable concessions made by plaintiffs in their depositions, extend to reasonable invitees, such as delivery vehicles, emerg ency vehicles, utility workers or contractors, or guests. We note that some defendants did provide d irect evidence that they personally, or they and their direct predecessors, had used Isl and Shore Drive for at least the requisite period, but we are not persuaded that the evidence de monstrates a greater use than for ingress and egress.

Plaintiffs contend that the trial court should not have dismis sed 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 a nd egress. However, plaintiffs’ trespass claim also included a llegations that defendants damage d their property outside the easement, and furthermore, as noted, using Island Shore Drive f or recreational purposes exceeds its scope. “Activities by the owner of the dominant estate tha t 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 domi nant estate holder “has the privilege to do such acts as are necessa ry to make effective the enjoyment of the easement, unless the burd en upon the servient tenement i s 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 t o a balancing test, id . at 699- 700, and in light of the present procedural posture of this mat ter, we are not in a position to
evaluate whether defendants ha ve 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 assessmen t district. Nevertheless, th ey 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, tim e, duration, and other circumstances. Smith v Western Wayne Co Conservation Ass ’ n , 380 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 plaintiff’s claims. Therefore, consistent with the above paragraph, we partially vacate the trial court’s dismissal of plaintiff’s trespass and nuisance claims, and we r emand those for further proceedings consistent with this opinion. Consequently, it is unnecessary for us to address plaintiffs’ motion for reconsider ation. 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 certai nly not irrelevant equities of the situa tion when viewed as a whole.-8- We affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, no party having prevailed
in full.

/s/ Karen M. Fort Hood /s/ Amy Ronayne Krause