-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

KIM and CONNIE METHNER,

Plaintiffs-Appellants, UNPUBLISHED August 23, 2016

v No. 326781
Midland Circuit Court VILLAGE OF SANFORD, LC No. 12-009082-CH

Defendant/Cross-DefendantAppellee,

and

MID-VALLEY AGENCY, INC.,

Defendant/Cross-Plaintiff-Appellee,

and

MALLEY CONSTRUCTION, INC.,

Defendant.

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

.

In this prescriptive easement case, plaintiffs’ appeal centers on the trial court’s order denying plaintiffs’ motion for partial summary disposition and granting defendants’ motions for summary disposition. 1 For the reasons stated in this opinion, we reverse the trial court’s order and remand for entry of partial summary disposition in plaintif fs’ favor.

1 Defendant Malley Construction, Inc. settled with plaintiffs an d has not participated in this appeal. We use “defendants” in the plural when referring to Vi llage of Sanford and Mid-Valley Agency, Inc. together.-2- This appeal involves three adjacent parcels of property along West Saginaw Street in the Village of Sanford, Michigan. The first parcel is owned by def endant Mid-Valley Agency, Inc., and Mid-Valley’s business building is on it. The record reflec ts that at one time a post office was on the lot. Adjacent to the first lot is a vacant parcel t hat is also owned by Mid-Valley. Plaintiffs refer to the vacant pa rcel as the “Access Parcel.” The third parcel is owned by plaintiffs and is referred to as the “Studio Building” because a photography studio is located on it. The record reflects that plaintiffs acquired the Studio Bu ilding parcel in 2011 from Terry Howson. At his deposition, Howson testified that his family ha d owned the parcel for years, and that he had taken possession of it from his grandparents in the late 1960s or early 1970s. Howson, who was 70 years old at t he time he was d eposed, testif ied that the building on the parcel had been a meat market and that he had helped his uncle and grandfather by delivering
meat for the business sin ce he was 8 or 10 years old.

In the summer of 2011, the Village of Sanford developed plans to reconstruct and improve its downtown “streetscape ,” including Saginaw Street. In order to do so, the Village acquired easements for the sidewalks in front of the parcels at issue in this case. Ultimately, the Village decided to put a “curb bump-out,” i.e. a wider sidewalk with no parking spaces, and a crosswalk directly in front of the access parcel. As a result, the curb cut that allowed vehicular traffic to the rear of the buildings was removed. Although pla intiffs attempted to stop the project, they received no response from the Village. With the closure of the access drive, plaintiffs had no access to the rear of their building, which t hey had just renovated to allow handicap access. In their complaint, plaintiffs alleged that t hey had a prescriptive easement in the access parcel and that the Vil lage of Sanford’s streetscape project had interfered with their use of the easement. Plaintiffs moved for partial summary disp osition on the issue of the easement’s existence, and defendants also moved for summary dis position.

The trial court denied plaintiffs’ motion and granted summary disposition in favor of defendants, finding that there was no prescriptive easement on the access parcel. Relying on the
decision Frandorson Props v Northwestern Mut Life Ins Co , 744 F Supp 154 (WD Mich, 1990),
and Wood v Denton , 53 Mich App 435; 219 NW2d 798 (1974), the trial court conclud ed that Howson’s use of the access parcel “was mutual, although not per missive, and not adverse for the duration of his ownership.” As a result, the trial court dismi ssed Count I of plaintiffs’ complaint. Initially, the trial court found that questions of fact remaine d regarding the scope of the sidewalk easements plaintiffs and Mid-Valley had granted the Village, so the court did not grant summary disposition on Counts II and III of plaintiffs’ complaint. The Village moved for reconsideration, and, on reconsideration, the trial court concluded that Counts II and III were derivative of Count I. The court therefore dismissed the remaining counts in plain tiffs’ complaint. Thereafter MidValley’s cross-claim against the Village was dismissed by stipu lation. This appeal followed.

Plaintiffs argue on appeal that the trial court erred in denyi ng their motion for partial summary disposition and in grantin g defendants’ motions for sum mary disposition. 2 We agree.

2 We review de novo a trial court’s decision to grant summary di sposition under MCR 2.116(C)(10). Adair v Michigan , 470 Mich 105, 119; 680 NW2d 386 (2004). A (C)(10) motion-3- In Mulcahy v Verhines , 276 Mich App 693, 700; 742 NW2d 393 ( 2007), we explained:

A prescriptive use of land . . . is either

(1) a use that is adverse to the owner of the land or the inte rest in land against which the servitude is claimed, or

(2) a use that is made pursuant to the terms of an intended bu t imperfectly created servitude, or the enjoym ent of the benefit of an intend ed but imperfectly created servitude. [citing 1 Re statement Property, 3d, Servitu des, § 2.16, pp 221–

222 ; emphasis omitted).]

An easement by prescription results from use of another’s prop erty that is open, notorious, adverse, and continuous for a period of fiftee n years. MCL 600.5801(4). The burden is on the party claiming a prescriptiv e 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 ripen ed into a prescriptive easement. [ Mulcahy , 276 Mich App at 699 (case citations and quotation marks omitted).]

“The term ‘hostile’ as employed in the law of adverse possessio n is a term of art and does not imply ill will.” Mumrow v Riddle , 67 Mich App 693, 698; 242 NW2d 489 (1976) ; Goodall v Whitefish Hunting Club , 208 Mich App 642, 646; 528 NW2d 221 (1995). “Adverse or host ile use is use inconsistent with the right of the owner, without pe rmission asked or g iven, use such as would entitle the owner to a cause of action against the int ruder.” Mumrow , 67 Mich App at 698; Goodall , 208 Mich App at 646. The party claiming the easement need not “make express
declarations of adverse intent during the prescr iptive period.” Mumrow , 67 Mich App at 698;

Goodall , 208 Mich App at 646. In Michigan, the prescriptive period is 15 years. MCL 600.5801(4); Mulcahy , 276 Mich App at 699.

Plaintiffs bought their property in 2011 and so have not used the access parcel long enough to claim a prescriptive ea sement based on their own owne rship. However, if the use by plaintiffs’ predecessor in title , Howson, satisfied the element s of a prescriptive easement, then plaintiffs acquired that easemen t when they purchased the prope rty, even if it was not mentioned in the deed or the parties’ dealings. See Haab v Moorman , 332 Mich 126, 143-144; 50 NW2d 856 (1952).

The trial court erred by failing to apply Michigan precedent, under which a presumption of hostile use arises when an alleged easement has been in use for longer than the statutory

tests the factual sufficiency of the complaint, and “we conside r the substantively admissible evidence actually proffered in opposition to the motion. Thus, when such a motion is properly brought, the nonmovant must . . . produce admissible support fo r its opposition in order to defeat
the motion.” Id . at 120 (citation and internal quotation marks omitted). Acti ons to quiet title are equitable and thus are also reviewed de novo. Killips v Mannisto , 244 Mich App 256, 258; 624 NW2d 224 (2001).-4- period and the origin of that use is unknown. The trial court should have applied Haab , as clarified by Widmayer v Leonard , 422 Mich 280, 290; 373 NW2d 538 (1985): “Once plaintiffs presented evidence that they had used the disputed land for ove r fifty years, the burden of producing evidence shifted to defendants to establish that plai ntiffs’ use was permissive.” Although the trial court concluded that the Frandorson Court declined to apply the presumption because the way was “one of mere convenience” rather than a way of necessity, the Court in

Haab and the Courts in several cases cited by Haab applied the presumption despite the fact that
the cases did not involve a way of necessity. See Haab , 332 Mich at 139 (“An alley is a way of convenience”); Loehr v Cochran , 14 Mich App 345, 346; 165 NW2d 485 (1968); Dyer v
Thurston , 32 Mich App 341, 343; 188 NW2d 633 (1971). Thus, binding cas elaw clearly supports plaintiffs’ assertion that all they had to establish t o give rise to the presumption of hostile use is that the use was open, its origins are unknown, and that the use occurred for longer than the prescriptive period.

The trial court’s application of the “mutual use” doctrine als o was not in accord with binding Michigan law. Historically, the doctrine has been appl ied when owners of adjoining lots share a driveway that is partly on both (or all) parcels so tha t all the parcels are mutually burdened and benefited. See, e.g., Wilkinson v Hutzel , 142 Mich 674, 675; 106 NW 207 (1906); Worden v Assiff , 317 Mich 436, 439; 27 NW2d 46 (1947); Wasilewski v Kowal , 320 Mich 473, 474; 31 NW2d 697 (1948); Banach v Lawera , 330 Mich 436, 438; 47 NW2d 679 (1951). “Mutual” is not the same as simultaneous or concurrent; rather, it means “1. Generally, directed by each toward the other or other s; reciprocal. 2. (Of a cond ition, credit covenant, promise, etc.) reciprocally given, received, or exchanged. 3. (Of a right, e tc.) belonging to two parties;

common.” Black’s Law Dictionary (10th ed). Thus, Howson’s unilateral use of his neighbor’s property without permission is not “mutual use” even if the nei ghbor was also using the property.

Howson’s testimony established that the origins of the use of the access parcel were unknown and the use was already established when he was a child , some 60 years earlier. Thus, the use had continued for well past the prescriptive period of 15 years and no one knew if it began as a permissive use or a hostile use. Mid-Valley argues that Howson’s testimony does not show anything more than permissi ve use; however, in order to ma ke a prima facie showing that the use was hostile, all plaintiffs had to show was that the or igins of the use were unknown and that the use had continued for more than the prescriptive perio d. Widmayer , 422 Mich at 290; see also 1 Restatement Property, 3d, Servitudes, § 2.16, commen t g , pp 233-234, and Reporter’s Note, pp 246-247 (citing Widmayer ) (“The majority of states rec ognize a presumption of adverse use arising from evidence of use for the prescriptive period wi thout evidence establishing that the initial use was permissive.”). Given these requirements, Howso n’s testimony shows that the presumed hostile use might predate even his own possession, as his awareness of his grandparents’ use (of unknown or igin) began at least around 195 1 through 1953 and was continuing when Howson took possession of the parcel 15 to 20 y ears later. Under these facts, plaintiffs sufficiently established a prima facie case that the presumption of hostile use applied in
this case.

The Village of Sanford asserts that plaintiffs’ use is the sam e as that of the general public because, according to plaintiffs’ complaint, customers used the access parcel. However, even assuming that plaintiffs’ customers equate with the general pub lic, there was almost no testimony to this effect. Howson stated that only he, his wife, post off ice trucks, Mid-Valley’s employees,-5- and the garbage truck used it: “The customers parked in front o f the building mostly” and “Nobody as far as I know” used it otherwise. Moreover, Howson’ s use included receiving deliveries, which would be diffe rent from the use by the genera l public.

Once a plaintiff establishes a presumption of hostile use, the burden then shifts to those opposed to the easement to provide evidence that the use was pe rmissive. Widmayer , 422 Mich
at 290. Howson testified that , although he and his neighbors h ad never discussed it, he used the access parcel with their full awareness. The only evidence tha t permission had been granted was the statement in the affidavit of Mid-Valley’s owner, who said he had expressly given Howson permission to use the parcel. But Mid-Valley acquired the acce ss parcel in 1985, long after the prescriptive period had run in favor of Howson and his predeces sors, and the silence of MidValley’s predecessors does not equate with permission , but with acquiescence

. 3 Notably, the trial court expressly found, “[Howson’s] use was mutual, although not permissive , and not
adverse for the duration of his o wnership.” When the trial cou rt expressly found the use was not permissive, under Widmayer , 422 Mich at 290, it should have at that point ended the analy sis in plaintiffs’ favor as a matter of law.

We reverse the trial court’s order granting summary dispositio n in favor of defendants and remand for entry of an orde r granting plaintiffs’ motion fo r partial summary disposition. We do not retain jurisdiction.

/s/ Donald S. Owens /s/ David H. Sawyer /s/ Douglas B. Shapiro

3 “Title or rights in lands founde d on prescription originate fr om the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length o f time that the law presumes that the true owner, by his acquiescence, has granted the land, or i nterest to the land, so held adversely.” Turner v Hart , 71 Mich 128, 138; 38 NW 890 (1888); see also Marr v Hemenny

, 297 Mich 311, 314; 297 N W 504 (1941). “One claiming a prescrip tive easement must prove that use was with the owner’s knowledge and acquiescence. In this c ontext, acquiescence does not mean license or permission in the active sense but means passiv e assent or submission, quiescence, or consent by silence.” 25 Am Jur 2d, Easements an d Licenses in Real Property, § 44, p 714 (footnotes omitted). Th is definition of acquiescence differs from a mere failure to object and does not, by itself , constitute permission. See Turner , 71 Mich at 138.